EV Toys LLC d/b/a Simply EV (“Simply EV,” “we,” “us” or “our”) make this website and related services (collectively, this “Site”) available to you (“Customer”, “you”, or “your”) for your use subject to the terms and conditions in this Terms of Service Agreement (the “Agreement”). By accessing or using this Site in any way, you agree to be bound by this Agreement. If you do not accept any of the terms of this Agreement and/or you do not meet or comply with its provisions, you may not use this Site. The disclaimers, terms, and conditions in this Agreement are of general application and may be supplemented by additional policies, procedures, disclaimers, guidelines, rules, terms, and conditions of specific application that we disclose.
IMPORTANT NOTICE: YOUR USE OF THIS SITE IS SUBJECT TO AN ARBITRATION PROVISION IN SECTION 9 OF THIS AGREEMENT, REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION. PLEASE CAREFULLY REVIEW SECTION 9 OF THIS AGREEMENT FOR MORE INFORMATION.
- Modification. We may discontinue or alter any aspect of this Site, restrict the time this Site is available, and restrict the amount of use permitted at our sole discretion and without prior notice or liability to you. We may also install bug fixes, updates, patches, and other upgrades to this Site without prior notice or liability to you. Your only remedy is to discontinue using this Site if you do not want a modification we make to this Site.
- Removal of Access. Your access to this Site is provided on a temporary basis with no guarantee for future availability. You agree that we may immediately suspend or terminate your access to this Site or any part thereof. Cause for such measures include, without limitation: (1) breach or violation of this Agreement or other incorporated agreements or guidelines; (2) discontinuance or material modification to this Site; (3) unexpected technical or security issues or problems; (4) extended periods of inactivity; or (5) your engagement in fraudulent or illegal activities. You further agree that such measures may be taken in our sole discretion and without liability to you or any third party.
- Defects and Availability. We use commercially reasonable efforts to maintain this Site, but we are not responsible for any defects or failures associated with this Site, any part thereof, any Feedback you provide, or any damages (such as consequential or indirect damages) that may result from any such defects or failures. This Site may be inaccessible or inoperable for any reason, including, without limitation: (1) equipment malfunctions; (2) periodic maintenance procedures or repairs which we may undertake from time to time; or (3) causes beyond our reasonable control or which we could not reasonably foresee. You understand that this Site is provided over the Internet, so the quality and availability of this Site may be affected by factors outside of our control. This Site is not intended to be available 100% of the time and we do not make any representations, warranties, or guarantees regarding the reliability or availability of this Site. We do not represent, warrant, or guarantee that this Site will always be completely free of human or technological errors. We will not be liable to you or any third party for damages or losses related to this Site being unavailable.
- Restrictions. You may not: (1) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party any portion of this Site in any way; (2) copy, modify, adapt, alter, translate, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which this Site is based; (3) use this Site or Simply EV IP to develop a competing service or Product; (4) use any device, software, or routine intended to damage or otherwise interfere with the proper functioning of this Site, servers, or networks connected to this Site or take any other action that interferes with any other person’s use of this Site; (5) decrypt, transfer, create Internet links to this Site, or “frame” or “mirror” this Site on any other server or wireless or Internet-based device; (6) use or merge this Site or any component thereof with other software, databases, or Site not provided or approved by us; (7) circumvent or attempt to circumvent any electronic protection measures in place to regulate or control access to this Site; (8) use this Site for unlawful purposes; (9) develop, distribute, or sell any software or other functionality capable of launching, being launched from, or otherwise integrated with this Site; (10) use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on this Site for any reason; (11) access or attempt to access any other user’s account; (12) use any Simply EV IP made available through this Site in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party; (13) introduce into this Site any virus, rogue program, Trojan horse, worm or other malicious or intentionally destructive code, software routines, or equipment components designed to permit unauthorized access to or disable, erase, or otherwise harm this Site, or perform any such actions; (14) introduce into this Site any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of an unauthorized person; (15) delete, modify, hack, or attempt to change or alter this Site or notices on this Site; (16) connect to or access any Simply EV computer system or network other than this Site; or (17) impersonate any other person or entity to use or gain access to this Site. We reserve the right to investigate and prosecute violations of any of the above to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate this Agreement.
- User Content. This Site may allow you to upload, download, store, or transmit user-generated data or information, including personal information such as your name, photo, or contact details (“User Content”). By submitting User Content to this Site or by interacting with this Site through social media platforms (such as, for example, using a promoted hashtag), you grant Simply EV a nonexclusive, worldwide, royalty-free, assignable, sublicensable, perpetual right and license to use, copy, and display User Content in connection with Simply EV’s operation of this Site. You further grant Simply EV a nonexclusive, perpetual, assignable, sublicensable, worldwide, royalty-free right and license to use, copy, display, reproduce, modify, edit, adapt, publish, translate, display, distribute, sell, transfer, sublicense, create derivative works of, and compilations incorporating, User Content to provide benchmarking, performance improvement, marketing and advertising, and other lawful purposes in connection with the operation of Simply EV’s business, including without limitation as it relates to the design, manufacture, distribution, sale and/or promotion of any goods and/or services branded under any intellectual property owned by Simply EV. YOU AGREE THAT YOU WILL EVALUATE AND BEAR ALL RISK RELATED TO THE USE OF, OR ANY ACTIVITIES ASSOCIATED WITH, USER CONTENT THAT YOU POST OR PROVIDE THROUGH THIS SITE. THE RESULTS OF ANY ACTIONS YOU TAKE BASED ON USER CONTENT, SIMPLY EV CONTENT, OR OTHER CONTENT YOU FIND ON THIS SITE IS SOLELY YOUR RESPONSIBILITY. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE IN ANY WAY FOR USER CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE TRANSMISSION OF ANY OF USER CONTENT THROUGH THIS SITE.
- User Content Restrictions. You may not upload, post, or transmit any User Content that: (1) would violate or infringe the proprietary, privacy, publicity, or intellectual property rights of Simply EV or any third party; (2) is obscene, defamatory, threatening, harassing, abusive, libelous, hateful, or harmful to any other person or entity; (3) violates any applicable law, statute, ordinance, or regulation; or (4) puts in jeopardy the security of your account, Simply EV, or this Site. We reserve the right, but have no obligation, to pre-screen, review, flag, filter, modify, refuse, and remove any and all User Content. We cannot and do not assume any responsibility for your use or misuse of any information transmitted, monitored, stored, or received while using this Site. By providing User Content via this Site, you further understand and agree that you do so at your own risk and that we are not responsible for the damage or loss of any such User Content.
- Unauthorized Use and Information Changes. You must immediately notify us if your registration information changes or you learn of or have reason to suspect any unauthorized use of your account or any other breach of security. You are responsible for maintaining the confidentiality of your username and password and are fully responsible for all activities that occur under your username and password. You also agree that you will provide truthful and accurate information during the registration process. We may refuse to grant you a particular username for any reason, including, without limitation, if we have reason to believe that such username impersonates someone else, is protected by trademark or other proprietary rights, or is vulgar or otherwise offensive.
- Storing Credentials. This Site may allow you to store your login credentials in your web browser so that you can be automatically logged in each time you access this Site. If someone else has access to your computer or web browser, the automatic login feature will allow that person to have access to your account. You are responsible for any damages to Simply EV or this Site resulting from unauthorized access to this Site from your account and we will have no liability to you or any third party for damages or loss related to such unauthorized access or use.
- Feedback. We welcome your comments, feedback, information, or materials regarding this Site or any of the Products (collectively, “Feedback”). Your Feedback will become our property upon your submission to us. By submitting your Feedback to us, you agree to assign, and hereby irrevocably assign to us, all right, title, and interest in and to the Feedback and all copyrights and other intellectual property rights embodied in such Feedback on a worldwide basis. We will be free to use, copy, distribute, publish and modify your Feedback on an unrestricted basis, without compensation to you. Moreover, you hereby assign or waive, as the case may be, any moral rights that you may have in or to the Feedback.
- Ownership of Intellectual Property. Simply EV or its licensors exclusively own all right, title and interest in and to this Site, the Simply EV Materials, and Feedback, including but not limited to, all ideas, inventions, inferences, discoveries, source and object software code, developments, derivative works, enhancements, upgrades, fixes and patches, formats and processes, and all images, trademarks, service marks, logos and icons displayed or related therein or thereto (collectively, “Simply EV IP”). Except as expressly provided herein, you have no right, license, or authorization with respect to any of the Simply EV IP. You shall not assert any claims to the contrary or otherwise do anything inconsistent with the allocation of ownership herein, including, but not limited to, challenging the validity of the authorizations or any intellectual property rights granted herein. In the event you are ever deemed to be the owner of any of the Simply EV IP, you shall immediately take all necessary steps to evidence, transfer, perfect, vest, or confirm Simply EV’s right, title and interest in the Simply EV IP. Simply EV is not transferring or granting to you any right, title, or interest in or to (or granting you any license or other permissions in or to) any Simply EV IP. The sole exception of the foregoing reservation of rights is the limited, non-exclusive, and non-transferable authorization explicitly granted in Section 1.2, and which shall automatically terminate upon expiration or termination of this Agreement. Any unauthorized use of any Simply EV IP, whether owned by us or other parties, may violate copyright laws, trademark laws, privacy and publicity laws and communications regulations and statutes. Trademarks owned by third parties are the property of those respective third parties.
- General. This Section governs your purchase of Products made available through this Site (each, a “Product”) and offered for sale directly from Simply EV through our network of authorized retailers, partners, licensors and fulfillment centers (collectively, “Partners”). All Products offered via this Site are subject to availability and prices for Products are subject to change without notice at any time. All orders for Products (each, an “Order”) placed by you are subject to acceptance by us and/or our Partners. Our Partners may sell direct to you from time-to-time. All Orders shall, at a minimum, identify the Products purchased, quantities, price, shipping costs, and taxes. Simply EV reserves the right to cancel or refuse any Order for any reason at any time prior to shipment, including after an Order has been submitted, whether or not the Order has been confirmed. We may attempt to contact you if all or a portion of your Order is cancelled, or if additional information is needed to complete and accept your Order. Products may be made available for reservation and pre-order via this Site. If you pre-order a Product that is not yet available for sale, we may, depending on the offer, charge your credit card or PayPal for the cost of the Product plus any applicable charges for taxes and shipping, and will ship you the Product once it is available. Simply EV reserves the right to put limitations on the combining, stacking, and use of any and all promotions done via the Site, email, social media, or any other channels where promotions are detailed and/or distributed. Simply EV reserves the right to pause all promotions, codes, and referral programs for some sales and for all new Product launches. Any and all promos must be used at time of purchase and cannot be used retroactively, promo codes cannot be stacked, used in tandem, etc.
- Product Purchasing. To purchase a Product, you will be required to provide information regarding your credit card or other payment instrument (e.g. PayPal) (“Payment Method”) to our third party payment processor (“Provider”). You represent and warrant to Simply EV, our Partners, and our Provider that the information pertaining to your Payment Method is true and that you are an authorized user of the Payment Method. You hereby authorize us through our Provider to bill to your Payment Method in accordance with the terms of the Order for the Products you are purchasing. If any bank or other financial institution refuses to honor any payment of yours, we may charge you a fee up to the maximum amount permitted under applicable law and seek any other damages or remedies available. When providing a Payment Method, our Provider may allow you to keep such Payment Method on file in order to facilitate future Orders (Simply EV does not retain, store, or otherwise manage credit card information). If you want to use a different Payment Method than the one you signed up to use during registration or when you placed an Order, you may edit your Payment Method information by logging into your account management tools on this Site, which securely connects to our Provider. If your Payment Method expires and you do not edit your Payment Method information or cancel your account, we may reject your Order. If we do not reject your Order, you authorize us to charge you for any Product purchases you make, and you will remain responsible for any uncollected amounts. If your order is flagged by our system as a high risk of fraud, we reserve the right to refuse to fulfill and refund your order. If you feel that a refund was made by mistake, please email us at info@Simply EV.com.
- Taxes. You are responsible for, and agree to pay, all taxes, fees, and any other duties or surcharges set by any governmental agency or taxing authority. You agree to indemnify and hold Simply EV and our Partners harmless for any liability for taxes owed in connection with the sale of a Product. In most of case, you will receive Products at your final payment paid to www.Simply EV.com. It is your responsibility to pay the import and customs duties and fees that are incurred as a result of any international shipment.
- Billing Details. Please email us at info@Simply EV.com if you would like to receive more detailed account history or billing information, if you believe there are any billing errors, or if you have any other questions related to your account history or bill. You must notify us at info@Simply EV.com or change your information via your online account immediately in the event of any change in your name, billing address, service address, email address, telephone number, credit or debit card, or other account information. You can dispute your account history or bill by contacting us at info@Simply EV.com. Unless otherwise provided by law, you must still pay any disputed charges until the dispute is resolved.
- Order Fulfillment. Simply EV uses commercially reasonable efforts to ship Products within 24-48 business hours of Order acceptance. Some Products may be drop-shipped from our Partners. Most Products are shipped through UPS of Fedex ground services and delivery times range from 2 days in California to 4-5 days on the east coast. Simply EV may offer express delivery through UPS, Fedex and USPS when requested. We do not ship outside of the US, and cannot ship battery operated Products to Alaska and Hawaii. Notwithstanding the foregoing, Simply EV does not guarantee shipping or delivery times and is not liable for the actions or conduct of our Partners or shipping carriers. A delayed delivery of any part of an Order does not entitle you to cancel other deliveries. Simply EV is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond Simply EV’s, our Partner’s, or our shipping carrier’s reasonable control including, but not limited to, acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of Product, acts or omissions of other parties, acts or omissions of civil or military authority, government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, acts of terrorism, delays in transportation or inability to obtain labor, materials or Products through its regular sources (“Force Majeure”). In the event of Force Majeure condition, Simply EV’s time for performance shall be extended for a period equal to the time lost as a consequence of the Force Majeure condition without subjecting Simply EV to any liability or penalty. Simply EV may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to you. If you place the order by mistake or change mind to cancel the order, please contact us at info@Simply EV.com for confirmation within 48 hours for any Order cancellation. Purchased but not shipped: 97% refund. Purchased and shipped: Customer pays shipping both ways (Original shipping cost is withheld from refund) as well as credit card fees (3%), assuming the unit is unopened. Opened or used vehicles cannot be returned.
- Other Shipping Matters. Any changes that you make regarding shipping once the item is shipped, including but not limited to changing the address, putting an order on hold, or updating shipping settings/preferences surrender the option for replacement items and/or refunds if any issues occur. Please note we are not responsible for any lost, stolen, or damaged items due to any parcel service fault. If your payment is processed by Paypal, please note that we only ship to the confirmed address provided by PayPal. Before you pay, please make sure your address in PayPal matches the address you would like us to ship to.
- Returns; Exchanges; and Refunds. With the exception of Products that are marked as on sale, or Products purchased under a Special Order, a Product purchased from SimplyEV.com may be returned assuming they've been unopened, unused and remain new, with all originally included materials and all tags still attached to the items. In order for the return to be valid, it must be returned within ten (10) business days after delivery of the item to you was completed. Special Orders and Products on sale are not returnable. All sale Products are final sale, no refunds, exchanges or credits of any kind. Each Special Order is made specifically for each Customer and are final sale, no refunds, exchanges or credits of any kind. If Special Orders or sale Products are returned without express permission from our Customer Service, it will be returned to you immediately and you will be notified. Restocking fees may apply to unauthorized returns. Only Products originally purchased through this Site may be considered for return, refund, or exchange. To return a Product or request a refund or exchange, contact us at info@Simply EV.com. Upon receipt, processing, and inspection of the returned item, we will refund the purchase price, minus discounts, and credits, minus all shipping costs, outbound and return, to you subject to the following terms and conditions: (a) If you have removed the tags, used the Products, or have destroyed the original packaging, we might be unable to accept the return. We reserve the right to refuse your return or exchange request, and the right to charge a restocking fee and other handling costs based on our sole and exclusive discretion; (b) Simply EV may charge additional fees for any accepted Product returns which are found to be damaged upon receipt and inspection by Simply EV; (c) A prepaid return label will be supplied upon request. Please use this label and contact the shipping company for a pickup or drop-off. If insurance is included in the shipping it is your responsibility to obtain the required signatures to validate the insurance policy. UPS requires that a UPS driver, or an official UPS Customer Center must sign the documents. A UPS Store is not acceptable. You can use the shipping company of choice but Simply EV will not be responsible for lost or damaged Products. It is at your discretion to purchase insurance for the package; (d) Should you believe any Product is defective, you must bring this to the attention of Simply EV prior to use. Once the Product has been used it can no longer be returned for a refund and defective items are covered under manufacturer warranty only; (e) Simply EV takes no responsibility for returned items that do not reach us: we strongly suggest that you insure any shipped packages for the minimum cost of the Products; and (f) If you are approved for any refund, a credit will automatically be applied to your original Payment Method, within 2-15 days. If you haven’t received a refund yet, first check your bank account again. Then contact your Payment Method provider, it may take some time before your refund is officially posted. If you’ve done all of this and you still have not received your refund yet, please contact us at info@Simply EV.com.
- Product Limitations of Liability.
SIMPLY EV, ITS AFFILIATES AND SPONSORS, ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR OTHER DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THE PRODUCT(S) SOLD ON THIS SITE, SITE-RELATED SERVICES AND/OR CONTENT, OR INFORMATION CONTAINED WITHIN THE SITE. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE PRODUCT(S) SOLD BY THIS SITE AND/OR SITE-RELATED SERVICES IS TO RETURN THE PRODUCT(S) IN ACCORDANCE WITH THE SIMPLY EV RETURN POLICY OR SUBMIT A CLAIM TO THE MANUFACTURER OF THE PRODUCT(S).
YOU ASSUME THE RISK OF ALL RIDERS WHO RIDE THE PRODUCT(S), INCLUDING WITHOUT LIMITATION YOURSELF. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO CLAIM FOR LIABILITY AGAINST SIMPLY EV FOR ANY MISUSE OF ANY OF THE PRODUCT(S). SIMPLY EV SHALL HAVE NO OBLIGATION AND NEITHER YOU OR ANY THIRD PARTY SHALL HAVE ANY REMEDY AGAINST SIMPLY EV, ITS OFFICERS, AGENTS OR ASSIGNS FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR OTHER DAMAGES ARISING FROM DIRECT OR INDIRECT INJURY TO PERSON OR PROPERTY, OR ANY OTHER LOSS, WHETHER OR NOT OCCASIONED BY NEGLIGENCE, OR OTHERWISE, ON THE PART OF SIMPLY EV.
YOU ACKNOWLEDGE THAT THERE IS AN INHERENT RISK IN THE OPERATION OF ALL PRODUCT(S) SOLD BY SIMPLY EV, AND YOU HEREBY ASSUME THE RISK OF ANY INJURY ARISING FROM OPERATION OF ANY PRODUCT(S) PURCHASED FROM SIMPLY EV AND THE RISK ASSUMED BY ANY OTHER PERSON YOU PERMIT TO RIDE SUCH PRODUCT(S). THE MAXIMUM LIABILITY THAT SIMPLY EV SHALL HAVE TO YOU AND/OR A RIDER OF PRODUCT(S) PURCHASED FROM SIMPLY EV IS LIMITED TO ANY AMOUNTS ACTUALLY PAID TO SIMPLY EV BY YOU. YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTIES AND LIMITED REMEDIES SET FORTH HEREIN REPRESENT AN INSEPARABLE ALLOCATION OF RISK THAT IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
YOU AGREE TO RELEASE AND FOREVER DISCHARGE SIMPLY EV AND ITS AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, AND ALL OTHER PERSONS OR ENTITIES ACTING ON ITS BEHALF, FROM ANY AND ALL CLAIMS, ACTIONS, DAMAGES, LIABILITY, COSTS OR EXPENSES AND ATTORNEY FEES WHICH ARE RELATED TO, ARISE OUT OF, OR ARE IN ANY WAY CONNECTED TO YOUR PARTICIPATION OR USE OF PRODUCTS PURCHASED FROM SIMPLY EV, WHETHER OR NOT SUCH CLAIMS, ACTIONS, DAMAGES, LIABILITY, COSTS OR EXPENSES ARE CAUSED BY THE NEGLIGENCE OF SIMPLY EV. YOU WILL INDEMNIFY AND HOLD SIMPLY EV HARMLESS FROM AND AGAINST ANY CLAIMS ARISING OUT OF YOUR FAILURE TO CONVEY ALL SAFETY WARNINGS AND INSTRUCTIONS TO ALL RIDERS AND ANY SUBSEQUENT OWNERS OF PRODUCT(S) SOLD BY SIMPLY EV.
- Disclaimer of Warranty. EXCEPT AS EXPRESSLY PROVIDED A MANUFACTURER IN CONNECTION WITH A PRODUCT, SIMPLY EV MAKES NO WARRANTIES REGARDING THE PRODUCTS AND ALL IMPLIED WARRANTIES, TERMS AND CONDITIONS (WHETHER STATUTORY OR OTHERWISE) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. IN PARTICULAR, SIMPLY EV MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS. YOU SHALL RELY EXCLUSIVELY ON THE WARRANTIES PROVIDED BY THE RESPECTIVE MANUFACTURERS.
- Product Use. You represent that you will operate Product(s) purchased from Simply EV properly, in a safe manner, and under normal operating conditions. Normal operating conditions require adherence to manufacturer's specifications in the owner's manual, and routine care and maintenance by you. Proper use means that the Product(s) are to be used only in the manner intended for personal transportation of a single rider with proper safety equipment on smoothly paved, safe, dry, non-oily surfaces in accordance with local regulations during daylight hours. You represent and warrant that you are aware that the Products on this Site are designed for recreational and/or for personal transportation of a single rider with proper safety equipment. You acknowledge that some states may require a driver's license and may require certain safety equipment for some or all of the Product(s) sold by Simply EV and that additional vehicle code requirements may exist. You undertake sole responsibility to become informed of such applicable laws before purchasing Product(s) from Simply EV. You also acknowledge that riding Product(s) creates a risk to others and you shall determine what insurance protection is required before purchasing Product(s) from Simply EV. YOUR INSURANCE POLICIES MAY NOT PROVIDE COVERAGE FOR ACCIDENTS INVOLVING THE USE OF THE PRODUCT(S). TO DETERMINE IF COVERAGE IS PROVIDED, YOU SHOULD CONTACT YOUR INSURANCE COMPANY OR AGENT. You acknowledge and agree that riding Product(s) from Simply EV has certain inherent risks of injury and or death, which risks increase further if the Product is not used in accordance with safe riding procedures and pursuant to manufacturer's guidelines. You are further aware that the usual risks, hazards and dangers of personal injury, death and disability increase when using ramps, curbs, steps, half pipes, inclines, or declines, bowls or any other structure or device. You also understand that these risks, hazards and dangers are further increased when other persons, whether or not of the same level of experience or skill, are using the same Product(s). You acknowledge and understand that the U.S. Consumer Product Safety Commission has issued recommended safety guidelines to help prevent Product-related deaths and injuries and you agree to follow all such guidelines.
- Feedback Representations. In the event you provide any Feedback via this Site, you hereby make the following additional representations and warranties to us: (1) you are owner of such Feedback or otherwise have the right to grant us the licenses or assignments granted pursuant to this Agreement; (2) you have secured any and all consents necessary to provide the Feedback and to grant the foregoing licenses or assignments; (3) the Feedback does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and such Feedback does not contain any personally identifiable information about third parties in violation of such parties’ rights; (4) the use of any Feedback will not result in harm or personal injury to any third party; and (5) all factual information contained in the Feedback is true and accurate.
- DISCLAIMERS OF WARRANTY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THIS SITE IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT.
WITHOUT LIMITATION, WE MAKE NO WARRANTY THAT THIS SITE WILL MEET YOUR REQUIREMENTS, THAT USE OF THE FOREGOING WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE FOREGOING OR ANY INFORMATION OR CONTENT FOUND ON THIS SITE WILL BE ACCURATE OR RELIABLE, THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THIS SITE WILL BE CORRECTED, THAT THIS SITE AND ANY CONTENT OR INFORMATION FOUND ON THIS SITE WILL BE VIRUS-FREE, OR THAT THE QUALITY OF ANY INFORMATION, CONTENT, OR OTHER MATERIALS OBTAINED THROUGH THIS SITE WILL MEET YOUR EXPECTATIONS.
ANY CONTENT OR OTHER MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THIS SITE IS DONE AT YOUR SOLE RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU THROUGH THIS SITE OR ANY PRODUCT WILL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- Indemnity. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS SIMPLY EV, OUR OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, PARTNERS, AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, DEMANDS, OR EXPENSES, INCLUDING ATTORNEY’S FEES AND COSTS AND EXPENSES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH: (A) YOUR USE OF THIS SITE, (B) YOUR VIOLATION OF THIS AGREEMENT, (C) ANY USER CONTENT YOU PROVIDE THROUGH THIS SITE, (D) YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD PARTY, AND (E) YOUR NEGLIGENCE OR WILLFUL MISCONDUCT.
- Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL SIMPLY EV BE LIABLE FOR ANY DIRECT OR INDIRECT LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THIS SITE. IF YOU ARE DISSATISFIED WITH THIS SITE, OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THIS SITE. IN ANY EVENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR THE USE OF ANY OR ALL PARTS OF THIS SITE IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00 USD).
- For California Residents. IF YOU ARE A CALIFORNIA RESIDENT OR COULD OTHERWISE CLAIM THE PROTECTIONS OF CALIFORNIA LAW, YOU FURTHER EXPRESSLY WAIVE THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO THE CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND SECTION 1542 OF THE CALIFORNIA CIVIL CODE, AND YOU HEREBY EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO YOUR RELEASE OF ANY CLAIMS YOU MAY HAVE AGAINST SIMPLY EV.
- Governing Law. This Agreement will be governed by and construed, interpreted, and enforced in accordance with the laws of the State of Florida without reference to its conflicts or choice of law principles. Any arbitration or court proceeding will take place in Miami, Florida, and you hereby consent to the exclusive jurisdiction and venue of the state or federal courts in Miami-Dade County, Miami. You irrevocably submit and consent to the personal jurisdiction of such courts.
- Dispute Resolution. To the extent feasible, the parties desire to resolve any dispute, claim or controversy arising out of or relating to your use of or access to this Site or Simply EV Materials, this Agreement or the breach, termination, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this agreement to arbitration (a “Dispute”) through discussions and negotiations between each other. The parties agree to attempt to resolve any Disputes by negotiation with the other party (by phone, electronic correspondence, or written correspondence). If we are not able to resolve any Dispute ourselves, you and Simply EV agree to resolve such Dispute through confidential binding arbitration as set forth below.
- Binding Arbitration. If you and Simply EV are unable to resolve a Dispute through informal negotiations, either you or Simply EV may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”) both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement you and Simply EV may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
- Waiver of Rights. You hereby agree that you understand the consequences of agreeing to binding arbitration under this Section, including giving up any constitutional rights to have the Dispute determined by a court of law or by a jury and any right that you may have under Article 13 of the State Bar Act to have a trial de novo by a court after nonbinding arbitration of a dispute concerning fees or costs; that discovery of information in arbitration may be limited; and that the arbitration decision will be final and binding, except to the limited extent that judicial review might be available. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.
- Independent Contractors. You understand and expressly agree that you and Simply EV are independent contractors and not agents or employees of the other party. Neither you nor Simply EV has any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.
- Consent to Do Business Electronically. We use and rely upon electronic records and electronic signatures for the execution and delivery of this Agreement and any other agreements, undertakings, notices, disclosures or other documents, communications or information of any type sent or received in accordance with this Agreement and in performing our obligations and exercising our rights under this Agreement. Neither you nor Simply EV will prevent or inhibit in any way the other party from printing, saving, or otherwise storing electronic records sent or otherwise made available to the other party. You agree not to contest the authorization for, or validity or enforceability of, electronic records and electronic signatures, or the admissibility of copies thereof, under any applicable law relating to whether certain agreements, files, or electronic records are to be in writing or signed by you to be bound thereby. You will bear your own costs and expenses in conducting business electronically, and will undertake all steps necessary, including software, hardware, and other equipment upgrades and purchases, in order to be able to conduct business electronically.
- Equitable Relief. You agree that breach of the provisions of this Agreement would cause irreparable harm and significant injury to us which would be both difficult to ascertain and which would not be compensable by damages alone. As such, you agree that we have the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance, or other equitable relief without prejudice to any other rights and remedies we may have for your breach of this Agreement.
- Privacy. We collect, store, and use data collected from you in accordance with our Privacy Statement.
- Entire Agreement. This Agreement and any hyperlinked policies and procedures constitute the entire agreement between you and Simply EV with respect to the subject matter hereof and supersede all prior agreements, both oral and written, with respect to the subject matter hereof. We may revise and update this Agreement from time to time, and will post the updated Agreement to the portal. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THIS AGREEMENT, ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Although we are not obligated to provide you with notice of any changes, any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Your continued use of this Site will constitute your agreement to any new provisions within the revised Agreement.
- Waiver; Severability. Our failure to enforce any provision of this Agreement will not be deemed to be a waiver of our right to enforce them. If any term or provision of this Agreement will be held to be invalid, illegal, or unenforceable, the remaining terms and provisions of this Agreement will remain in full force and effect, and such invalid, illegal, or unenforceable term or provision will be deemed not to be part of this Agreement.
- Assignment. You may not assign, transfer, or sell (voluntarily or by operation of law) your rights or obligations under this Agreement, nor delegate your duties hereunder to any other person, without our prior written consent. Any purported assignment without our consent will be void and will constitute a breach of this Agreement. We may assign this Agreement or delegate or subcontract our obligations under this Agreement at any time.
- Survival. The provisions of this Agreement that by their content are intended to survive the expiration or termination of this Agreement, including, without limitation, provisions governing ownership and use of intellectual property, representations, disclaimers, warranties, liability, indemnification, governing law, jurisdiction, venue, remedies, rights after termination, and interpretation of this Agreement, will survive the expiration or termination of this Agreement for their full statutory period.
- Contact Us. With questions, email email@example.com or submit your question through this Site.