Terms of Use

 

THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN A JURY TRIAL OR ANY OTHER COURT PROCEEDINGS,  OR CLASS ACTIONS OF ANY KIND. THE ARBITRATION AGREEMENT IS SET FORTH IN THE “Dispute Resolution, Arbitration, Class-Action Waiver, Jury Waiver” SECTION BELOW.

These Terms and Conditions (“Terms”) constitute an agreement between you (“Buyer,” “you,” or “your”) and Timbuk2 (“Timbuk2,” “us”, “we”, or “our” and together with you, the “Parties”) concerning the purchase and sale of products (individually a “Product” and collectively the “Products”) through www.timbuk2.ca (“Site”). Upon acceptance of an order for Products placed by you (“Order”), we agree to supply the Products specified in the Order to you, under these Terms.

 

1. Changes. These Terms are subject to change by Timbuk2, without prior written notice at any time, in Timbuk2's sole discretion. Any changes to the Terms will be in effect as of the "Last Updated Date" referenced on the Site. You should review these Terms before purchasing any product that is available through this Site. If you do not agree with a change to the Terms, your sole remedy is to not access or use the Site. Your continued use of this Site after the "Last Updated Date" will constitute your acceptance of and agreement to such changes.

 

2. Order Acceptance and Cancellation. You agree that your Order is an offer to buy, under these Terms, all products listed in your Order. All Orders must be accepted by us, or we will not be obligated to sell the Products to you. We may choose not to accept orders at our sole discretion, even after we send you a confirmation email with your order number and details of the items you have ordered.

 

3. Prices and Payment Terms.

a) All prices, discounts, and promotions posted on the Site are subject to change without notice. The price charged for a product will be the price in effect at the time the Order is placed and will be set out in your order confirmation email. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total and will be itemized in your shopping cart and your order confirmation email. We strive to display accurate price information; however, we may, on occasion, make inadvertent typographical errors, inaccuracies, or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.

b) We may offer, from time to time, promotions on the Site that may affect pricing and that are governed by terms and conditions separate from these Terms. If there is a conflict between the terms for a promotion and these Terms, the promotion terms will govern.

c) Terms of payment are within our sole discretion and full prepayment is required for any order unless otherwise specified by us. We reserve the right to specify the manner of payment and shall be permitted to withhold delivery of Products until payment is made by you. All payments shall be made in cash or other immediately available federal funds and shall be transferred by credit card, cash, check, money order or wire transfer. You shall pay all bank fees and other charges related to payment. Each returned check (not sufficient funds) or stopped payment is subject to a $20.00 fee.

 

Amounts designated as “N15 Payments” are due within fifteen (15) days after the invoice date. Late payments shall bear interest at 1.5% per month. You shall be liable for all costs of collection and attorney's fees. You grant a security interest to us in the Products to secure all amounts due under the Order. These Terms shall constitute a security agreement and afford us all rights of a secured party under the Uniform Commercial Code.

 

4. Shipments; Delivery; Title and Risk of Loss.

a) For purchases of our Products, we will arrange for shipment of the Products to you in accordance with the address and shipping method set forth in your Order. You will pay all shipping and handling charges specified during the ordering process. Shipping and handling charges are reimbursement for the costs we incur in the processing, handling, packing, shipping, and delivery of your Order. We will charge a drop shipping fee of $10 per Order (not per Product/carton) for any order shipping to an address other than the your principal address. All shipping and handling fees are non-refundable.

b) Title and risk of loss pass to you upon our transfer of the Products purchased on our Site to the carrier.

c) Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments. If the Products cannot be shipped or delivered as set forth in your Order, you shall have the option to terminate your Order with respect to any of the Products. Any Product that is placed on backorder will be shipped promptly when available, unless cancelled in writing by you prior to shipment.

 

5. Returns and Refunds. Except for any products designated on the Site as final or non-returnable, Products may only be returned within thirty (30) of purchase. To be eligible to return a product, you must obtain a Return Merchandise Authorization Number (“RMA”) from our customer service department. No returns of any type will be accepted without an RMA number. All returns are subject to our approval. Once an RMA is obtained, you must ship the Products, at your expense, to us. You bear the risk of loss during shipment. All returns must be made in original packaging and the original Products must be returned in “like-new” condition for a full or partial refund to be considered. After the Products are received by us, we will examine and inspect the Products and will make a determination on whether the Products are in “like-new” condition. If the Products are in “like-new” condition, we will accept the Products for return and will credit your account for such Products, less the original shipping and handling costs. Returned Products are subject to a 25% restocking fee. Your refund will be credited back to the same payment method used to make the original purchase on the Site.

 

6. Errors or Omissions. All measurements on the Site and within our advertising are approximate. Errors or omissions in any quotation or other document shall be subject to correction, in our sole discretion, and we shall not be liable for any deviation in measurements listed on the Site or in our advertisements.

 

7. Warranty and Disclaimers.

 

 

 

 

8. Limitation of Liability.

 

 

 

The limitation of liability set forth above shall apply to the extent permitted by law.

 

9. Time Limitation for Claims. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIMS RELATING IN ANY WAY TO THE SITE, THESE TERMS OR YOUR ORDER MUST BE COMMENCED WITHIN ONE (1) YEAR OF THE EVENTS FIRST GIVING RISE TO THE CLAIMS. IF NOT COMMENCED WITHIN THIS ONE (1) YEAR PERIOD, YOU AND TIMBUK2 ARE PERMANENTLY BARRED FROM PURSUING THAT CLAIM.

 

10. Indemnification. You agree to indemnify and hold harmless Timbuk2, its parents, subsidiaries, affiliates, partners, agents, and licensors and each of their respective officers, directors, shareholders and employees against and from any and all liabilities, claims, costs, damages, reasonable settlements and expenses (including without limitation reasonable attorneys' fees and court costs) to the extent arising out of or attributable to your breach of any of the provisions, representations, or warranties set forth in these Terms. We reserve the right to take over the exclusive defense of any claim for which we are entitled to indemnification under this Section. You will cooperate as fully and as reasonably required in our defense of any claim.

11. Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

 

12. Governing Law and Jurisdiction. These Terms and your Order shall be governed and interpreted in accordance with the laws of California, including its provisions of the Uniform Commercial Code, without reference to principles of conflict of laws. The Parties exclude the application of the Convention on International Sale of Products to the Terms and Order. Any action at law, suit in equity, or other judicial proceedings for the enforcement of these Terms or the Order, or related to any provision of these Terms or the Order, shall be instituted only in state or federal courts with venue in Orange County, California. Each Party hereby consents to personal jurisdiction and venue in Orange County, California.

 

13. Dispute Resolution, Arbitration, Class-Action Waiver, Jury Waiver.

a) Disputes. The terms of this Section 13 shall apply to all Disputes between you and Timbuk2. For the purposes of this Section, "Dispute" shall mean any dispute, claim, controversy or action between you and Timbuk2 that has arisen, arises under or relates in any way to your use of the Site, these Terms, your Order, or any other transaction or interaction, whether occurring in the past, present, or future, involving you and Timbuk2, or involving anyone acting on behalf of or in concert with you and/or anyone acting on behalf of or in concert with Timbuk2, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis, and shall be interpreted to be given the broadest meaning allowable under law.

b) Binding Arbitration. You and Timbuk2 agree: (1) all Disputes shall be resolved exclusively by final and binding individual arbitration, except as otherwise set forth in these Terms, and, except that, to the extent you have in any manner violated or threatened to violate Timbuk2’s intellectual property rights, Timbuk2 may seek injunctive or other appropriate relief in any state or federal court in the state of California, your state of domicile now, at the time of such violation, or at the time of such an action, or any state in which you have conducted business, and you consent to jurisdiction and venue in such courts; (2) these Terms involve a transaction in interstate commerce; (3) the Federal Arbitration Act (9 U.S.C. subs 1, et seq.) governs the interpretation and enforcement of this Section (notwithstanding the choice-of-law provision contained herein); and (4) this Section shall survive termination of these Terms.

c) WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. EXCEPT AS PROVIDED FOR IN SECTION 13(g) BELOW, ANY DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE BROUGHT IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS OR CLASS ARBITRATIONS. ACCORDINGLY, EXCEPT AS PROVIDED FOR IN SECTION 13(g) BELOW, AN ARBITRATOR SHALL NOT COMBINE OR CONSOLIDATE MORE THAN ONE PARTY'S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES TO AN ARBITRATION PROCEEDING.  

d) Arbitration Procedure. An arbitration under this agreement shall be administered by the AAA and be governed by the then-current AAA Consumer Arbitration Rules ("AAA Rules"), except AAA may not administer any multiple claimant or class arbitration, as the Parties agree that the arbitration shall be limited to the resolution only of individual claims. If there is a conflict between the AAA Rules and the rules set forth in these Terms, the rules set forth in these Terms shall govern. All Disputes shall be resolved by a single neutral arbitrator, and both Parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by the terms of these Terms. The arbitrator, and not any federal, state, provincial, territorial or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be binding on the Parties and may be entered as a judgment in any court of competent jurisdiction.

 

You may obtain more information about arbitration and how to file a Demand for Arbitration at www.adr.org.

e) Hearing Format. Unless otherwise agreed, the arbitration shall take place in either Orange County, California, your County of residence at the time of purchase or at the time the arbitration is initiated, or virtually. In all hearing formats, the arbitrator shall issue a written decision that explains the essential findings and conclusions on which an award, if any, is based. If the Mass Filing process described in Section 13(g) is triggered, then the location of any hearing will be determined by the arbitrator.

f) Arbitration Fees. The fees and costs of the arbitration will be borne according to AAA's then-applicable Consumer Fee Schedule.

g) Mass Filing. If 25 or more claimants (including you), represented by the same counsel or counsel acting in concert with one another, seek to pursue in arbitration similar Disputes against Timbuk2 ("Mass Filing"), you agree to the application of the AAA Mass Arbitration Supplementary Rules and Consumer Mass Arbitration and Mediation Fee Schedule.

h) Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state, municipality, province, or territory if the action is within that court's jurisdiction and is pending only in that court.

i) Opt-Out. You may elect to opt-out (exclude yourself) from the final, binding individual arbitration procedure and waiver of class and representative proceedings specified in these Terms by sending a written letter to Timbuk2, LLC, Attn. Legal Department, 6415 Katella Avenue, Cypress, CA 90630 USA within thirty (30) calendar days of your Order. The letter must be signed personally by you and specify: (1) your name; (2) your mailing address; (3) and your request to be excluded from the final, binding individual arbitration procedure and waiver of class and representative proceedings specified in this Section. In the event that you opt-out consistent with the procedures set forth above, all other terms of these Terms shall continue to apply.

j) Severability. If any provision in this Section is found to be unenforceable, that provision shall be severed with the remainder of these Terms remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire Section 13 shall be null and void. The foregoing shall also not apply to the Mass Filing process described in Section 13(g); all aspects of that process are part of one integrated whole, and if any part of that process is held to be invalid or unenforceable, then this entire Section 13 shall be null and void. The terms of this Section shall otherwise survive any termination of these Terms.

k) Exclusive Venue for Other Controversies. Timbuk2 and you agree that any controversy excluded from the dispute resolution procedure and class action waiver provisions in this Section (other than an individual action filed in small claims court) shall be filed only in the state or federal courts located within the Orange County, California, and each Party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy.

 

14. Assignment. You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section 14 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.

 

15. Privacy Notice. By accessing and using the Site, you confirm you have read and understand our Privacy Policy. Click here to view our Privacy Policy.

 

16. No Waivers. The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Timbuk2.

 

17. Severability. Unless otherwise stated, if any provision of these Terms is invalid, illegal, void, or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.

 

18. Entire Agreement. These Terms shall constitute the entire agreement between the Parties and shall supersede all prior and contemporaneous proposals, negotiations and counterproposals. The Parties intend for the Terms to be a final expression of their agreement and a complete and exclusive statement of the terms and conditions thereof. Prior dealings between the Parties or usage of trade (whether before or after the date of the Order) shall not be relevant to supplement or explain any term used in these Terms. Acceptance or acquiescence in a course of performance rendered under the Terms shall not be relevant to determine the meaning of the Terms even though the accepting or acquiescing Party has knowledge of the nature of the performance or usage of trade and an opportunity for objection. Nothing in the Terms shall be construed as creating any direct or beneficial right in or on behalf of any third party.