Last Updated: June 6, 2013
Brooks reserves the right to change or modify these Terms or any policy or guideline of the Services, at any time and in our sole discretion. Any changes or modifications will be effective immediately upon posting the revisions on the Services, and you waive any right you may have to receive specific notice of such changes or modifications. Your continued use of the Services following the posting of changes or modifications will confirm your acceptance of such changes or modifications. Therefore, you should frequently review the Terms and applicable policies to understand the terms and conditions that apply to your use of the Services. If you do not agree to the amended terms, you must stop using the Services.
If you have any question regarding the Services or these Terms, please refer to our Help Section or to our Frequently Asked Questions. All other questions or comments about the Services should be directed to Brooks Customer Service.
2. Terms of Sale
All sales made through the Services are governed by our Terms of Sale. Please refer to these Terms of Sale for the terms, conditions and policies applicable to your online purchases from Brooks. These Terms of Sale are subject to change without notice, at any time and in our sole discretion, so you should review the Terms of Sale each time you make a purchase through the Services.
3. Eligibility, Registration and Account
The Services are not targeted towards, nor intended for use by, anyone under the age of 13. If you are under the age of 18, or age of legal majority under applicable law, you may only use the Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. By using the Services, you represent and warrant that you (a) have not been previously suspended or removed from the Services; (b) do not have more than one online account with Brooks; and (c) have full power and authority to enter into this agreement and that, in doing so, you will not violate any other agreement to which you are a party.
In order to create a profile or post a comment on the Services, you may need to register for an online account. When registering for an account, you cannot create an account name that incorporates a trademark without authorization from the trademark owner. We reserve the right to reclaim account names on behalf of any business or individual that holds legal claim, including trademark rights, in those names.
In consideration of your use of the Services, you agree to (w) provide accurate, current and complete information; (x) maintain and promptly update your account information; (y) maintain the security of your password and accept all risks of unauthorized access to your account and the information you provide to Brooks; and (z) promptly notify Brooks if you discover or otherwise suspect any security breaches related to the Services.
4. Copyright and Limited License
Unless otherwise indicated on the Services, the Services and all content and other materials therein, including, without limitation, the Brooks logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, "Content") are the proprietary property of Brooks or our licensors or users and are protected by U.S. and international copyright laws.
You are granted a limited, nonexclusive, non-sublicensable license to access and use the Services and Content; however, such license is subject to these Terms and does not include (a) any resale or commercial use of the Services or the Content therein; (b) the collection and use of any product listings, pictures or descriptions; (c) the distribution, public performance or public display of any Content; (d) modifying or otherwise making any derivative uses of the Services or the Content, or any portion thereof; (e) use of any data mining, robots or similar data gathering or extraction methods; (f) downloading (other than the page caching) of any portion of the Services, the Content or any information contained therein, except as expressly permitted on the Services; and (g) any use of the Services or the Content other than for their intended purposes. Any use of the Services or the Content other than as specifically authorized herein, without the prior written permission of Brooks, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.
5. Repeat Infringer Policy; Copyright Complaints
In accordance with the Digital Millennium Copyright Act ("DMCA") and other applicable laws, Brooks has adopted a policy of terminating, in appropriate circumstances and in Brooks' sole discretion, account holders or other users of the Services who are deemed to be repeat infringers. Brooks may also, in our sole discretion, limit access to the Services and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that anything on the Services infringes any copyright which you own or control, you may file a notification of such infringement with our designated agent as set forth below:
Name of Designated Agent: David Bohan
Address: 4300 Roosevelt Way NE, Seattle, WA 98105
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys' fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
"Brooks," "Brooks Running," "Moving Comfort" and the Brooks logo and any other Brooks product or service names, logos or slogans that may appear on the Services are trademarks of Brooks Sports, Inc. or our subsidiaries in the United States and in other countries, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Brooks or the applicable trademark holder. You may not use any metatags or other "hidden text" utilizing "Brooks," "Brooks Running," "Moving Comfort" or any other name, trademark or product or service name of Brooks without our prior written permission. In addition, the look and feel of the Services, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Brooks and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Services are the property of their respective owners. Reference to any products, services, processes or other information, by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Brooks.
You are granted a limited, nonexclusive right to create a text hyperlink to the Services for noncommercial purposes, provided that such link does not portray Brooks or any of our products or services in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a Brooks logo or other proprietary graphic of Brooks to link to the Services without the express written permission of Brooks. Further, you may not use, frame or utilize framing techniques to enclose any Brooks trademark, logo or other proprietary information, including the images found at the Services, the content of any text or the layout/design of any page or form contained on a page on the Services without Brooks' express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright or proprietary right of Brooks or any third party.
Brooks makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party websites accessible by hyperlink from the Services, or websites linking to the Services. Such sites are not under the control of Brooks, and Brooks is not responsible for the contents of any linked site or any link contained in a linked site, or any review, changes or updates to such sites. Brooks provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement or adoption by Brooks of any site or any information contained therein. When you leave the Services, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Services.
8. Third Party Content
Brooks may provide third party content on the Services and may provide links to web pages and content of third parties (collectively, "Third Party Content") as a service to those interested in this information. Brooks does not control, endorse or adopt any Third Party Content and makes no representation or warranties of any kind regarding the Third Party Content, including without limitation regarding its accuracy or completeness. You acknowledge and agree that Brooks is not responsible or liable in any manner for any Third Party Content and undertakes no responsibility to update or review any Third Party Content. Users use such Third Party Content contained therein at their own risk.
9. Third-Party Products, Services and Promotions
Brooks may run promotions from third parties on the Services or may otherwise provide information about or links to third-party products or services on the Services. Your business dealings or correspondence with, or participation in promotions of, such third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third party. Brooks is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or promotions or as the result of the presence of third-party information on the Services.
10. User Content and Interactive Features or Areas
The Services may include discussion forums, blogs or other interactive features or areas in which you or other users create, post, transmit or store content, including but not limited to text, music, sound, photos, video, Product Reviews (as defined in Section 11), graphics, code and other items or materials (collectively, "User Content"). User Content is publicly-viewable and may include your profile information and any content you post pursuant to your profile. You agree that you are solely responsible for your User Content and for your use of such interactive areas, and that you use them at your own risk.
By using the interactive areas of the Services, you agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Services any of the following:
- User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
- User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
- User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting any User Content, you represent and warrant that you have the lawful right to distribute and reproduce such User Content;
- User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
- Unsolicited promotions, political campaigning, advertising or solicitations;
- Private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
- Viruses, corrupted data or other harmful, disruptive or destructive files; or
- User Content that, in the sole judgment of Brooks, is objectionable or which restricts or inhibits any other person from using or enjoying the Services, or which may expose Brooks or our users to any harm or liability of any type.
You further agree that you will not violate any law, contract, intellectual property or other third-party right or commit a tort, and that you are solely responsible for your conduct while on the Services. You agree that you will abide by these Terms and will not:
- Use the Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Services, or that could damage, disable, overburden or impair the functioning of the Services in any manner;
- Send any unsolicited or unauthorized advertising, solicitations, promotional materials, spam, junk mail, chain letters or pyramid schemes, or harvest or collect the email addresses or other contact information of other users from the Services for the purpose of sending spam or other commercial messages;
- Use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Services or to extract data;
- Reverse engineer any aspect of the Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any area, content or code of the Services (except as otherwise expressly permitted by law);
- se or attempt to use another's account without authorization from such user and Brooks;
- Attempt to circumvent any content filtering techniques we employ, or attempt to access any service or area of the Services that you are not authorized to access;
- Attempt to indicate in any manner that you have a relationship with us or that we have endorsed you or any products or services for any purpose;
- Engage in any harassing, intimidating, predatory or stalking conduct;
- Develop any third-party applications that interact with User Content and the Services without our prior written consent; and
- Use the Services for any illegal or unauthorized purpose or engage in, encourage, or promote any activity that violates these Terms.
Brooks is not responsible or liable for the conduct of, or your interactions with, any users of the Services (whether online or offline), nor is Brooks responsible or liable for any associated loss, damage, injury or harm. Enforcement of these Terms is solely in Brooks' discretion, and the absence of enforcement of these Terms in some instances does not constitute a waiver of Brooks' right to enforce these Terms in other instances. In addition, these Terms do not create any private right of action on the part of any third party or any reasonable expectation or promise that the Services will not contain any content that is prohibited by these Terms. As a provider of interactive services, Brooks is not liable for any statements, representations or User Content provided by our users through the interactive area of the Services. Although Brooks has no obligation to screen, edit or monitor any User Content, Brooks reserves the right, and has absolute discretion, to remove, screen or edit any User Content posted or stored on the Services at any time and for any reason without notice, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Services at your sole cost and expense.
Any use of the Services in violation of these Terms may result in, among other things, termination or suspension of your rights to use the Services.
11. Product Reviews
12. Rights in User Content
By submitting or posting User Content on the Services, you grant Brooks a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content on or in connection with the Services and on third-party sites. You also grant Brooks the right to use the name that you submit in connection with such User Content. You understand and agree that the use of your or any other user's name, likeness, voice or identity in connection with various features on the Services does not imply any endorsement of such features or of the Services unless explicitly stated otherwise.
By posting User Content to the Services, you represent and warrant that (a) such User Content is non-confidential; (b) you own and control all of the rights to the User Content that you post or you otherwise have all necessary rights to post such User Content to the Services; (c) the User Content is accurate and not misleading or harmful in any manner; and (d) the User Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule or regulation.
Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information or materials about Brooks, the Services or our other products and services ("Submissions"). Submissions, whether submitted through the Services or otherwise, are non-confidential and shall become the sole property of Brooks. Brooks shall own exclusive rights, including all intellectual property rights, in and to such Submissions and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You agree to defend, indemnify and hold harmless Brooks and our officers, agents, partners, employees, independent contractors, service providers and consultants, and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to: (a) your use of the Services; (b) any User Content you post, upload, use, distribute, store or otherwise transmit on or through the Services; (c) any Submissions you provide; (d) your violation of these Terms; or (e) your violation of the rights of another.
EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY BROOKS, THE SERVICES AND THE CONTENT CONTAINED THEREIN ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. BROOKS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SERVICES AND CONTENT CONTAINED THEREIN. BROOKS DOES NOT REPRESENT OR WARRANT THAT CONTENT ON THE SERVICES IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE.
BROOKS IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, TEXT OR PHOTOGRAPHY. WHILE BROOKS ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICES SAFE, BROOKS CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SITES OR ITS SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.
Brooks reserves the right to change any and all content contained in the Services and to modify, suspend or discontinue the Services or any features or functionality of the Services at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by Brooks. Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumer, so some or all of the disclaimers in this section may not apply to you.
16. Limitation of Liability
IN NO EVENT SHALL BROOKS, OUR DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE SERVICES OR THE CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY ANY USER ON ANY INFORMATION OBTAINED FROM BROOKS, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO BROOKS' RECORDS, PROGRAMS OR SERVICES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF BROOKS, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES OR TO THESE TERMS EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO BROOKS FOR ACCESS TO OR USE OF THE SERVICES.
17. Modifications to the Services
Brooks reserves the right to modify or discontinue, temporarily or permanently, the Services or any features or portions thereof without prior notice. You agree that Brooks will not be liable for any modification, suspension or discontinuance of the Services or any part thereof.
18. Applicable Law; Arbitration
PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH BROOKS AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM BROOKS.
You and Brooks agree to arbitrate any dispute arising from these Terms or your use of the Services, except that you and Brooks are not required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and Brooks agree that you will notify each other in writing of any dispute within thirty (30) days of when it arises. Notice to Brooks shall be sent to Brooks Sports, Inc., 4300 Roosevelt Way NE, Seattle, WA 98105. You and Brooks further agree: to attempt informal resolution prior to any demand for arbitration; that any arbitration will occur in King County, Washington; that arbitration will be conducted confidentially by a single arbitrator in accordance with the Rules of the American Arbitration Association; and that the state or federal courts in King County, Washington have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Any dispute between the parties will be governed by this Agreement and the laws of the State of Washington and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. Whether the dispute is heard in arbitration or in court, you and Brooks will not commence against the other a class action, class arbitration or other representative action or proceeding.
Notwithstanding any of these Terms, Brooks reserves the right, without notice and in our sole discretion, to terminate your right to use the Services, or any portion of thereof, and to block or prevent your future access to and use of the Services or any portion thereof.
If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.