Troutsource.com Terms of Use Agreement
DATE LAST MODIFIED: March 9, 2011
This Terms of Use Agreement (this “Agreement”), which is a legal agreement between you (“you”) and Troutsource.com (“Troutsource”), shall govern your use of and access to Troutsource’s Web site located at www.Troutsource.com (the “Web site”) and all services provided by Troutsource as described therein (the “Services”). By checking the box or clicking the “I Agree” button at the end of the this Agreement, and/or by accessing and/or using the Web site or Services, you (a) accept this Agreement and agree to be bound by each of its terms, and (b) represent and warrant to Troutsource that (i) you have the authority to enter into this Agreement, (ii) this Agreement is binding and enforceable against you, (iii) if you are signing this Agreement on behalf of an entity, you have authority to accept this Agreement on behalf of the company for which you work (if applicable), and (iv) you have read and understand Troutsource’s Privacy Policy (the “Privacy Policy”), the terms of which are posted at the Web site and incorporated herein by reference, and agree to abide by the Privacy Policy. If you do not agree with any of the terms contained herein, you should click the “I do not Agree” button at the end of this Agreement and immediately cease any and all activities on the Web site and/or use of any Services.
Please read this Agreement carefully. Even if you fail to accept this Agreement as described above, by accessing the Web site and any pages thereof, you agree to be bound by the terms and conditions below. If you do not agree to these terms and conditions or anything contained in this Agreement, do not access or otherwise use the Web site.
CHANGES TO SERVICES, AGREEMENT AND/OR WEB SITE
Troutsource may amend any part of this Agreement at any time, and the amended terms will be effective 10 days after initial posting at the Web site. In addition, Troutsource may, without prior notice, add, delete or modify some or all of the Services and/or content available on the Web site at any time in its sole discretion. Further, Troutsource may discontinue disseminating any portion of information or category of information, may change or eliminate any transmission method and may change transmission speeds or other signal characteristics. IF ANY OF THESE RULES OR ANY FUTURE CHANGES ARE UNACCEPTABLE TO YOU, YOU SHOULD IMMEDIATELY DISCONTINUE USE OF THE SERVICES AND WEB SITE. YOUR CONTINUED USE OF THE SERVICES OR WEB SITE NOW, OR FOLLOWING THE POSTING OF ANY CHANGES IN THIS AGREEMENT, WILL INDICATE ACCEPTANCE BY YOU OF SUCH RULES, CHANGES AND/OR MODIFICATIONS. You should review this Agreement periodically to ensure you become aware of changes which are made to this Agreement by Troutsource from time to time.
SERVICES AND PARTIES
The Services are described within various pages of the Web site. You should review these pages to gain a better understanding of the Services and the goals behind the Web site. At a general level, Troutsource serves as a resource to learn about fly fishing rivers.
Troutsource is not a manufacturer, retailer or re-seller with respect to fishing gear or equipment or any other products or services listed on the Web site. Rather, Troutsource is merely an online resource for buyers and sellers of these goods and services to locate one another. Troutsource does not endorse or recommend the products or services of any particular company or manufacturer. Troutsource is not your agent, nor is Troutsource an agent for any of the companies which list products and/or services at the Web site. Troutsource's services are administrative only. Troutsource, in this regard, is providing nothing more than a listing service where such products and/or services can be purchased directly from such third party vendors or resellers, and Troutsource shall not be liable in any way for the condition of any such product, the performance of any such service or any other action taken by any of these third party vendors. You agree that Troutsource shall not be liable for any damages or costs of any type arising out of or in any way connected with your purchase and/or use of any fishing gear, excursions, equipment or other item or service at the Web site.
More specifically, in certain portions of the Web site Troutsource provides the Services and the Web site so that sellers may offer services and/or items for sale and buyers may place offers to purchase these items directly with the seller. As such, Troutsource is neither a principal interested in the transactions, nor an agent of buyer or seller. Troutsource does not have the power to transfer title to any items offered by sellers at the Web site. Because Troutsource is not a party to any transaction, Troutsource does not make, and should not be construed as having made, any representation or warranty of any kind concerning any of the offered items, including without limitation any representation or warranty regarding the quality, safety or legality of the offered items, or the truth or accuracy of any offerings. Additionally, Troutsource makes no representation or warranty of any kind as to the willingness or ability of either a buyer or seller to complete a sale. Buyers and sellers are solely responsible for independently verifying the background and credit-worthiness of those parties with whom they enter into, or with whom they prospectively will enter into, a transaction, as well as the condition or any description of an item involved in a prospective transaction.
Further to your release above, in the event of any controversy or dispute regarding any transaction conducted through use of the Services or the Web site (a "Dispute"), you hereby release Troutsource, its affiliates and subsidiaries, and their respective directors, officers, employees, agents, shareholders, co-branders, partners, successors and assigns (the "Released Parties"), and each of the foregoing, from any and all manner of action, claim or cause of action or suit, at law or in equity, and from any and all losses, damages, costs or expenses, including without limitation court costs and attorneys' fees, which you may have against the Released Parties, or any of them, known or unknown, disclosed or undisclosed, which arise out of or relate in any way to a Dispute. If you are a California resident, you hereby waive your rights under Section 1542 of the California Civil Code, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
Troutsource expressly reserves the right to discontinue, suspend or terminate the offering of one or all of its services at any time.
FEES
Fees charged for the various products and/or services offered at the Web site, including fees for listing various items for sale, are set forth in various locations throughout the Web site or in a separate document. In consideration for providing the Services, you agree to pay all such fees which are due and owing on account of the selections you have made at the Web site or through a Troutsource representative (collectively, the “Fee”). Fees are payable as set forth in the applicable portion of the Web site, and you hereby agree to pay all costs and expenses incurred by Troutsource (including attorneys’ fees) in collecting past due Fees. In addition, past due Fees shall accrue interest at the lesser of 15% per annum or the maximum rate allowed by law. By checking the “I Accept” box at the end of this Agreement or otherwise using any Services, you hereby agree to pay all Fees due and owing to Troutsource (and, if applicable, authorize Troutsource to charge the credit card you have on file with Troutsource for all Fees due and owing hereunder). All fees described herein (including, without limitation, the Fees) are non-refundable.
OTHER THIRD PARTY SERVICES
In addition to the Services described above, you may be able to search for information and additional service providers in various portions of the Web site. All content and data included in any such section has been provided to Troutsource by a third party, and Troutsource does not guarantee the accuracy of any listing generated by your search. Such service is offered by Troutsource for informational purposes only, and Troutsource shall not be liable to you or any third party on account of any information posted or displayed in connection with this service.
COPYRIGHT AND TRADEMARK NOTICES
All contents of the Web site are: Copyright © 2011 Troutsource. All rights reserved. “Troutsource” is a service mark of Troutsource. Other product and company names mentioned herein or within the Web site may be the trademarks or service marks of their respective owners. To this end, you may not, without the prior, written consent of Troutsource or the applicable copyright holder, modify, publish, transmit, participate in the transfer or sale of, reproduce, create new works from, distribute, perform, display, or in any way exploit, any of the content posted at the Web site or otherwise owned by Troutsource. This Agreement shall not be deemed to transfer from Troutsource or any licensor to you (i) any of Troutsource’s intellectual property (including, without limitation, patents, trademarks, service marks, trade names, copyrights and licenses), technology, software programs or any related assets owned by Troutsource, or (ii) any rights to use or license any of the foregoing except as explicitly set forth in this Agreement.
DISCLAIMERS AND LIMITATIONS
Troutsource intends that the information contained in the Web site be accurate and reliable; however, errors sometimes occur. In addition, changes and improvements to the information provided herein or on the Web site may be made by Troutsource at any time. THE WEB SITE AND THE INFORMATION, SOFTWARE, PRODUCTS AND SERVICES ASSOCIATED WITH IT ARE PROVIDED "AS IS, WHERE IS AND AS AVAILABLE." TROUTSOURCE DISCLAIMS ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE WEB SITE AND ANY INFORMATION (INCLUDING, BUT NOT CONFINED TO, ANY AND ALL INFORMATION PERTAINING TO RIVERS OR FISHING METHODS), SOFTWARE, PRODUCTS AND SERVICES PROVIDED WITHIN THE WEB SITE, INCLUDING WITHOUT LIMITATION (I) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT, AND (II) AS TO THE RESULTS THAT MAY BE OBTAINED BY USE OF THE WEB SITE OR ANY OF TROUTSOURCE’S SERVICES OR PRODUCTS PURCHASED THROUGH THE WEB SITE. USE OF THE WEB SITE AND/OR TROUTSOURCE’S SERVICES IS AT YOUR OWN RISK. TROUTSOURCE IS NOT LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR OTHER INJURY ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE WEB SITE AND/OR TROUTSOURCE’S SERVICES OR WITH THE DELAY OR INABILITY TO USE THE WEB SITE, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES OBTAINED THROUGH THE WEB SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE WEB SITE, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF TROUTSOURCE AND/OR ITS SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. In all events, the aggregate liability of TROUTSOURCE for any reason and upon any cause of action, whether in contract, tort or otherwise, shall not exceed the amount of fees paid by YOU TO TROUTSOURCE VIA THE WEB SITE.
UNAVAILABILITY OF SERVICE OR WEB SITE
You are responsible, at your sole cost and expense, for providing all equipment necessary to access the Internet, the Web site and/or the Services. While it is Troutsource’s objective to make the Web site accessible 24 hours per day, 7 days per week, the Web site may be unavailable from time to time for any reason including, without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside of the control of Troutsource, access to the Web site and/or Services may be interrupted, suspended or terminated from time to time. YOU AGREE THAT TROUTSOURCE SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM ANY SUCH INTERRUPTION, SUSPENSION OR TERMINATION OF THE WEB SITE AND/OR SERVICE AND THAT YOU SHALL PUT IN PLACE CONTINGENCY PLANS TO ACCOUNT FOR SUCH PERIODIC INTERRUPTIONS OR SUSPENSIONS OF THE WEB SITE AND/OR SERVICE.
INDEMNITY
As a condition of use of the Web site and/or the Services, you agree to indemnify Troutsource from and against any and all liabilities, expenses (including attorneys' fees) and damages arising out of claims resulting from your use of the Web site or any of the Services, including without limitation any claims alleging facts that if true would constitute a breach by you of this Agreement.
LINKS TO THIRD PARTIES
The Web site may contain links to web sites maintained by third parties. Such links are provided for your convenience and reference only. Troutsource does not operate or control in any respect any information, software, products or services available on such web sites. Troutsource's inclusion of a link to a web site does not imply any endorsement of those services or the web site, its contents or its sponsoring organization.
ERRORS AND DELAYS
Troutsource is not responsible for any errors or delays in responding to an inquiry or otherwise processing information submitted by you at the Web site, including, without limitation, those caused by (i) an incorrect e-mail address or telephone number provided by you, (ii) the failure of a third party to timely respond to any such inquiry, or (iii) technical problems.
DISPUTE RESOLUTION
Any claim or controversy arising out of or relating to the use of the Web site, to the services provided by Troutsource, or to any acts or omissions for which you may contend Troutsource is liable, including but not limited to any claim or controversy as to arbitrability ("Dispute"), shall be finally, and exclusively, settled by arbitration. The arbitration shall be held before one arbitrator under the commercial arbitration rules of JAMS in force at that time. The arbitration shall be venued in Placer County, California. The arbitrator shall be selected pursuant to the JAMS rules. Should no JAMS rule regarding the selection of an arbitrator be in effect, you shall select an arbitrator from a panel of arbitrators acceptable to Troutsource. The costs of arbitration shall be paid by the non-prevailing party.
Any judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction in Placer County, California. The arbitrator shall not have the power to award damages in connection with any Dispute in excess of actual compensatory damages and shall not multiply actual damages or award consequential, punitive or exemplary damages, and each party irrevocably waives any claim thereto. The agreement to arbitrate shall not be construed as an agreement to the joinder or consolidation of an arbitration under this Agreement with an arbitration of disputes or claims of any non-party, regardless of the nature of the issues or disputes involved.
THIS AGREEMENT PROVIDES THAT ALL DISPUTES BETWEEN YOU AND TROUTSOURCE WILL BE RESOLVED BY BINDING ARBITRATION. YOU THUS GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS. YOUR RIGHTS WILL BE DETERMINED BY NEUTRAL ARBITRATORS AND NOT A JUDGE OR JURY. You are entitled to a fair hearing, but the arbitration procedures are simpler and more limited than rules applicable in court. Arbitrator decisions are enforceable and are subject to very limited review by a court. By using the Services or accessing the Web site, you consent to these restrictions.
Should a Dispute arise and should the arbitration provisions herein become inapplicable or unenforceable, or in any instance of any lawsuit between you and Troutsource, the parties agree that jurisdiction over and venue of any suit shall be exclusively in the state and federal courts sitting in Placer County, California. If either party employs attorneys to enforce any right in connection with any Dispute or lawsuit the prevailing party shall be entitled to recover reasonable attorneys' fees from the non-prevailing party.
TERMINATION
You agree that Troutsource may immediately terminate your account and access to the Services. Cause for such termination shall include, but not be limited to, (a) breaches or violations of any agreements with Troutsource or guidelines posted by Troutsource, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Services (or any part thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, (g) you have engaged in fraudulent or illegal activities, and/or (h) nonpayment of any fees owed by you in connection with the Services. Termination of your Troutsource account includes (x) removal of access to all offerings within the Services, and (y) barring further use of the Services. Further, you agree that all terminations shall be made in Troutsource’ sole discretion and that Troutsource shall not be liable to you or any third-party for any termination of your account or access to the Services.
MISCELLANEOUS
This Agreement, including the Privacy Policy, constitutes the entire agreement between you and Troutsource and it supersedes all prior or contemporaneous communications, promises and proposals, whether oral, written or electronic, between you and Troutsource with respect to the Web site and information, software, products and services associated with it. Troutsource and you are intended to be independent contractors, and nothing in this Agreement shall be deemed to establish any relationship of partnership, joint venture, employment, franchise or agency between Troutsource and you. This Agreement shall be subject to and construed in accordance with the laws of the State of California, excluding its conflict of laws principles. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid enforceable provision that most closely matches the intent of the original provision, and the remainder of the Agreement shall continue in effect. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. All rights not expressly granted herein are reserved.
Troutsource’s contact information, should you need to contact Troutsource for any reason, is:
Troutsource.com
9715 Oak Leaf Way
Granite Bay, CA 95746
E-mail: info@troutsource.com