Terms & Conditions

TERMS OF USE

 

BY USING THE MICHAELPHELPS.COM WEBSITE ("SITE"), YOU ACCEPT AND AGREE TO THE FOLLOWING TERMS AND CONDITIONS ("TERMS OF USE"), IN ADDITION TO ALL APPLICABLE LAWS. If you do not agree to these Terms of Use, you may not access or otherwise use the Site.

The Site is owned and operated by Aqua Lung America Inc. (“AQA,” “we” or “us”). These Terms of Use constitute a legal agreement.

 

Acceptance of Modifications to Terms of Use

 

We reserve the right, at our discretion, to update, revise, add to, remove from or otherwise modify these Terms of Use. Any modifications shall be effective immediately upon posting on the Site. Please check the Terms of Use periodically for modifications. Your use of this Site following the posting of any modifications to the Terms of Use constitutes your acceptance of those modifications.

 

Ownership of Content, Trademarks and Intellectual Property, Conditions and Restrictions on Use.

 

AQA owns, controls, or licenses all right, title and interest in and to the Site and all content featured or displayed on the Site, including, but not limited to, text, images, moving images, photographs, illustrations, graphics, visuals, audio, video, copy, software, software code, data, HTML code,  and the look and feel, design and organization of the Site ("Content"), and the compilation of the Content, including but not limited to any copyrights, trademark rights, trade dress rights, patent rights, database rights, moral rights, sui generis rights and other intellectual property and proprietary rights therein. The Site, its Content and all related rights shall remain the exclusive property of AQA or its licensors or content providers.

 

Your use of the Site does not grant to you ownership of, or a license to, any Content, compilation or intellectual property you may access on the Site. All Content is provided by us as a service to visitors to and users of the Site and may be only used for those informational purposes for which they are provided and then only if you also retain all copyright and other proprietary notices contained in the Content.  You may view the Content on the Site on your computer or other Internet compatible device, and make a single copy or print of the Content on the Site for your personal, internal, non-commercial use only. You may not: (i) copy, reproduce, publish, transmit, distribute, perform, display, post, modify, create derivative works from, sell, license or otherwise exploit this Site or any of its Content without our prior written permission; (ii) access or use the Content or this Site in any manner that is competitive with us or in any manner that violates any applicable federal, state or local laws or regulations; (iii) permit any copying of our Content; or (iv) remove any copyright, trademark or other proprietary notices from any Content or any portion or element of the Site. Any unauthorized copying, alteration, distribution, transmission, performance, display or other use of the Content or this Site is prohibited.  For purposes of these terms, the use of any such Content, portion or element on any other website or networked computer environment is prohibited. The limited rights set forth in this paragraph may be revoked at any time for any or no reason. All rights not expressly granted are reserved by us.

 

Without limiting the generality of the foregoing, you acknowledge and agree that certain content and features available through and used to operate this Site are protected by copyright, trademark, patent, or other proprietary rights, by us and/or our affiliates, licensors and service providers. You agree not to modify, alter, or deface any of the trademarks, service marks or other intellectual property we make available in connection with this Website, including the Content.

 

We retain all rights regarding our trademarks, trade names, brand names, logos and trade dress. These marks, names, logos, trade dress and associated images are registered and/or common law trademarks and are protected by U.S. and international laws and treaties. No license to the use of such marks, names, logos or trade dress is granted to you under these Terms of Use or by your use of this Site. Your misuse of the trademarks, trade names, brand names, logos and trade dress displayed on this Site is strictly prohibited.

 

Any commercial distribution, publishing or exploitation of any Content or any portion or element of the Site is strictly prohibited unless you have received the express prior written permission of AQA or the applicable rights holder. We will enforce our intellectual property rights to the fullest extent of the law.

 

We may terminate, change, suspend or discontinue any aspect of this Site, including the availability of any features of the Site, at any time and without notice.

 

We may terminate your access to or use of this Site at any time, for any reason or no reason and without prior notice to you. Any such termination, change, suspension or discontinuance shall be without liability to you.

 

In the event of a violation of these Terms of Use, we reserve the right to seek all remedies available at law and in equity.

 

Unsolicited idea Submission

 

Although through the use of certain areas or features of the Site a user could provide an unsolicited idea, do not send us ideas about new products, processes, product improvements or new services. In order to avoid potential misunderstandings or disputes when our products, processes, improvements or services might seem similar to ideas submitted to us, we adhere to a strict policy of not accepting them. We do not accept or consider such unsolicited ideas through the Site, including: ideas for new or improved products, services, technologies, processes, techniques, methods, systems, designs, plans, or concepts; or ideas for product enhancements, product names or marketing plans.

 

Please do not send through the Site, or describe at any area or feature of the Site permitting textual input or responses, any suggestions, ideas, know-how, concepts, techniques, procedures, methods, designs, plans, formulas or other materials. If, despite our request that you do not send or otherwise produce these ideas, you still send or provide them, then, regardless of what your transmission says or what you describe in an area where test may be provided, such submissions shall be deemed to be non-confidential and non-proprietary to you.  AQA shall be free to copy, reproduce, use, disclose, distribute and commercially exploit such Ideas in any manner, without limitation or attribution.

 

User Conduct and Acceptable Use

 

You warrant and agree that you shall not: (a) impersonate any person or entity or misrepresent your affiliation with any other person or entity; (b) use payment information (i.e. credit card, debit card) or personal information (including without limitation name, address, telephone number) of any other person; (c) upload, post, transmit, reproduce, distribute or otherwise publish or in any way exploit any Content, information or other material obtained through the Site for commercial purposes (other than as expressly permitted by the provider of such information or other material); (d) transmit or post any material which is or may be infringing, harassing, threatening, false, fraudulent, misleading, inflammatory, libelous, obscene, lewd, lascivious, filthy, excessively violent, pornographic, abusive, defamatory, vulgar, offensive, profane, sexually explicit or indecent, or illegal; (e) attempt to gain unauthorized access to other computer systems through the Site; (f) restrict or inhibit any other user from using and enjoying the Site or the Site's services; (g) engage in or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or international law; (h) violate, plagiarize or infringe the rights of third parties including, without limitation, copyright, trademark, trade secret, confidentiality, contract, patent, rights of privacy or publicity or any other proprietary right; (i) upload, post, transmit, reproduce, distribute or otherwise publish material containing (1) a virus, spyware, or other harmful component; (2) advertising, chain letters or pyramid schemes of any kind; or (3) information which would constitute or which contains false or misleading indications of origin, endorsement or statements of fact.

 

In addition, you may not: (i) engage in spidering, "screen scraping," "database scraping," harvesting of e-mail addresses, wireless addresses or other contact or personal information, or any other automatic means of obtaining lists of users or other information from or through the Site or the services offered on or through the Site, including without limitation any information residing on any server or database connected to the Site or the services offered on or through the Site; (ii) use the Site or the services made available on or through the Site in any manner with the intent to interrupt, damage, disable, overburden, or impair the Site or such services, including, without limitation, sending mass unsolicited messages or "flooding" servers with requests; or (iii) use the Site or the Site's services in violation of any applicable law. You further agree that you may not attempt (or encourage or support any one else's attempt) to circumvent, reverse engineer, decrypt, or otherwise alter or interfere with the Site or the Site's services, or any content thereof, or make unauthorized use thereof. Further, you must comply with all applicable third party terms of use (e.g., wireless carrier terms of service) at all times while using the Site.

 

We may, from time to time, make a messaging service, chat service, bulletin board, other forums and the like available on the Site. Use of any such services is subject to the prohibitions above and any other rules or regulations that we may post in connection with such a service, bulletin board or forum.

 

You alone are responsible for the content and consequences of any of your activities. We reserve the right, but do not have an obligation, to monitor and/or review all materials posted to the Site or through the Site's services by users, and we are not responsible for any such materials posted by users. However, we reserve the right at all times to disclose any information as necessary to satisfy any law, regulation or government request, or to edit, refuse to post or to remove any information or materials, in whole or in part, that in our sole discretion are objectionable or in violation of these Terms of Use, our policies or applicable law.

You agree that if you include a link from any other web site to the Site, such link shall open in a new browser window. You agree not to link from any other web site to this Site in any manner such that the Site, or any page of the Site, is "framed," surrounded or obfuscated by any third party content, materials or branding. We reserve the right to revoke your right to link to the Site from your website at any time for any reason.

 

Orders for Products and Services

 

We may make certain products available to visitors and registrants of the Site. You may only order products if, and you hereby represent and warrant that, you are domiciled in the United States or a designated territory to which we conduct product deliveries and you are 18 years old or older. You agree to pay in full the prices for any purchases you make either by credit/debit card concurrent with your online order or by other payment means acceptable to us. You agree to pay all applicable taxes. If payment is not received by us from your credit or debit card issuer or its agents, you agree to pay all amounts due upon demand by us. You agree that you are not permitted to resell any products purchased through this Site for commercial purposes.

 

Among other things, we provide information concerning various products and services and the opportunity to obtain additional information concerning those products and services or to purchase them. These Terms of Use and the information provided by us in no way override the terms and conditions of your purchase of any product or service except as specifically provided herein. To the extent any area within the Site contains specific terms and conditions concerning its use ("Specific Terms"), those Specific Terms are in addition to these Terms of Use. To the extent there is a direct conflict between these Terms of Use and the Specific Terms, the Specific Terms shall prevail.

 

All prices displayed on the Site are quoted in U.S. dollars. We may restrict delivery to addresses within the United States. We will add shipping and handling fees and applicable sales/use tax as necessary. We reserve the right, without prior notice, to discontinue or change specifications and prices on products and services offered on the Site without incurring any obligation to you. Products displayed on the Site are available while supplies last. The receipt by you of an order confirmation does not constitute our acceptance of an order. Prior to our acceptance of an order, verification of information may be required. We reserve the right at any time after receipt of your order to accept or decline your order, or any portion thereof, even after your receipt of an order confirmation from us, for any reason. We reserve the right to limit the order quantity on any item and to refuse service to any customer without prior notification. In the event that a product or service is listed at an incorrect price due to supplier pricing information or typographical error, we shall have the right to refuse or cancel orders placed for the product listed at the incorrect price, regardless of whether the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is canceled by us, we shall promptly issue a credit to your credit card account in the amount of the incorrect price and you shall be required to return the product purchased to us at our expense.

 

Third Party Web Sites

 

The Site may include links to third party websites not operated by us. These links are provided for your convenience and in no way signify any endorsement of any such websites or the content thereof.  ACCESS TO ANY SUCH LINKED SITE IS AT THE USER’S OWN RISK, AND WE WILL NOT HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO SUCH SITES AND/OR THEIR CONTENT, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH ANY USE OF OR RELIANCE ON ANY SUCH CONTENT, OR ANY GOODS OR SERVICES, AVAILABLE ON OR THROUGH ANY SUCH WEBSITE.

 

DISCLAIMER OF WARRANTIES

 

THIS SITE AND THE INFORMATION, MATERIALS AND ANY CONTENT CONTAINED HEREIN AND ACCESS TO THE SITE ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITATION OF THE FOREGOING, WE AND OUR AFFILIATES, SUBSIDIARIES, AGENTS AND THEIR RESPECTIVE EMPLOYEES, CONTRACTORS, DIRECTORS, OFFICERS, AND SHAREHOLDERS, SPECIFICALLY DISCLAIM ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO: (i) ANY WARRANTIES CONCERNING AVAILABILITY, ACCURACY, INTEGRATION, APPROPRIATENESS, SUITABILITY, RELIABILITY, COMPLETENESS, TIMELINESS OR USEFULNESS, ARISING FROM TRADE USAGE OR COURSE OF DEALING OR COURSE OF PERFORMANCE OR OTHERWISE, WITH RESPECT TO THIS WEBSITE AND THE INFORMATION, MATERIALS AND CONTENT THEREON, AND THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THEM; (ii) ANY WARRANTY THAT THIS SITE WILL BE SECURE, UNINTERRUPTED, NOT DELAYED OR SUSPENDED, UNCHANGED OR ERROR FREE; AND (iii) THE IMPLIED WARRANTIES OF QUIET ENJOYMENT, MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INFORMATIONAL CONTENT, NON-INTERFERENCE AND NON-INFRINGEMENT. Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitations may not apply to you.

 

You acknowledge that the information and Content at, or available from, the Site may contain inaccuracies or errors.

 

All features, specifications, products, and prices of products and services described on this Website or in the Content are subject to change at any time, without notice.  From time to time, there may be information on this Site or in the Content that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing or availability.  We make no representations as to the completeness, accuracy or currency of any information on this Site or in the Content.  We reserve the right to make changes in information about price, description or availability without notice.  We cannot guarantee that this Site and/or your computer will accurately display the colors of our products.  Images on the Site are for representational purposes only and may not portray actual products.  The inclusion of any products or services on this Site, or in the Content, does not imply or warrant that these products or services will be available at any particular time.

 

LIMITATION OF LIABILITY

 

YOUR USE OF THE SITE AND PURCHASE OF PRODUCTS FROM THIS SITE IS AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSABLE BY LAW, UNDER NO CIRCUMSTANCES SHALL AQA OR ITS SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, AGENTS OR SUPPLIERS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS AND BUSINESS INTERRUPTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, ARISING IN ANY WAY FROM YOUR USE OF THE SITE OR ANY PRODUCT OR SERVICE SOLD OR PROVIDED ON THE SITE, EVEN IF WE ARE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUR LIABILITY EXCEED THE PRICE YOU PAID FOR THE PRODUCT OR SERVICE THAT IS THE SUBJECT OF THE CLAIM. FOR THE AVOIDANCE OF DOUBT, NOTHING IN THIS CLAUSE SHALL AFFECT AQA’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.

 

Indemnification

 

You agree to indemnify, defend, and hold harmless AQA and its subsidiaries, affiliates, officers, directors, members, managers, employees, agents, licensors and suppliers from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from any violation of these Terms of Use or any activity related to your use or misuse of this Site (including your placement or transmission of any message, content, information, software or other materials through the Site, or any negligent or wrongful conduct) by you or any other person accessing this Site using your computer or Internet account. AQA reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with AQA's defense of such claim.

 

Applicable Laws

We control and operate the Site from our offices in the United States of America. We do not represent that materials on the Site are appropriate or available for use in other locations. Persons who choose to access the Site from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable. All parties to these terms and conditions waive their respective rights to a trial by jury.

 

Termination

We may terminate, change, suspend or discontinue any aspect of the Site or the Site's services at any time. We may restrict, suspend or terminate your access to the Site and/or its services with or without cause.

 

Governing Law

The Terms of Use and the relationship between you and us shall be governed by the laws of the State of California, without regard to its conflict of law provisions. You agree that any cause of action that may arise under these Terms of Use shall be commenced and be heard in the appropriate court in the State of California, San Diego County. You agree to submit to the personal and exclusive jurisdiction of the courts located within San Diego County in the State of California.

 

Miscellaneous

 

Our failure to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms of Use shall remain in full force and effect.

 

Copyright Infringement Notification

 

To file a copyright infringement notification with us, you will need to send a written communication that includes substantially the following (please consult your legal counsel or see Section 512(c)(3) of the Digital Millennium Copyright Act to confirm these requirements):

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
  3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
  4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
  5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
  6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

If you prefer to contact us via email, please email us at legal@aqualung.com with the word "Copyright" in the subject line.

Please note that under Section 512(f) any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability for damages. Please also note that the information provided in this legal notice may be forwarded to the person who provided the allegedly infringing content.

 

The provider of affected content may make a counter notification pursuant to sections 512(g)(2) and (3) of the Digital Millennium Copyright Act. When we receive a counter notification, we may reinstate the material in question.

To file a counter notification with us, you must provide a written communication (by regular mail or email to legal@aqualung.com with the phrase "Copyright Counter Notification" in the subject line) that sets forth the items specified below.

  1. Identify the specific URLs or other unique identifying information of material that AQA has removed or to which AQA has disabled access.
  2. Provide your name, address, telephone number, email address, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or San Diego County, California if your address is outside of the United States), and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
  3. Include the following statement: "I swear, under penalty of perjury, that I have a good faith belief that each search result, message, or other item of content identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled, or that the material identified by the complainant has been removed or disabled at the URL identified and will no longer be shown."
  4. Sign the paper.
  5. Send the written communication to the following address:

2340 Cousteau Ct

Vista, CA 92081

Attn: Legal Department.

 

Please note that you will be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is not infringing the copyrights of others. Accordingly, if you are not sure whether certain material infringes the copyrights of others, we suggest that you first contact an attorney.

 

How you can contact us

If you have any questions or comments about the Site or any of our services, please write to us at: support@mpmichaelphelps.com.