Effective: March 1st, 2021
You must agree to these Terms to use the Service. If you use the Service, or click accept or agree to these Terms if presented to you in a user interface for the Service, we will understand that as your acceptance of these Terms and your agreement to all of its terms and conditions. By accepting these Terms or using the Service, you represent and warrant that you have the legal capacity to enter a contract in the jurisdiction where you reside. If you do not accept these Terms, then you may not use the Service.
By agreeing to these Terms, you expressly agree to the arbitration of all Disputes as further described below. Any controversy, allegation, or claim that arises out of or relates to the Site, these Terms or any additional terms, whether heretofore or hereafter arising (collectively, a “Dispute”), except for any controversy, allegation or claim that arises out of or relates to our actual or alleged intellectual property rights (an “Excluded Dispute”), shall be finally resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and that these Terms do not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitrator or arbitral panel may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of the arbitration provisions will remain in force.
Changes to These Terms
Your Access to the Sites
Permitted Use and Restrictions
Accounts, Fees, and Security
- Fees. You agree to pay all applicable fees and taxes incurred by you or anyone using your account. YOU ACKNOWLEDGE YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
- Cancellation by You. You have the right to cancel your account at any time. You may cancel your account by contacting us at the contact details in Section 21 (Contact Us) at the end of these Terms. If you voluntarily terminate your account, you may be able to register for an account again at any time.
- Security. You are entirely responsible for maintaining the confidentiality of your password and you agree to be responsible for all activities that occur under your account or password. You may not use the account, username, or password of someone else at any time. You may not share your account, username, or password with someone else at any time. You agree to notify us immediately of any unauthorized use of your account, username, or password. We are not liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge. You may be held liable for any losses incurred by Bulkhead, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of your account or password. We reserve the right to terminate your account at any time.
Terms of Sale and Payments
Bulkhead reserves the right, with or without notice, to cancel or reduce the quantity of any order to be filled or products to be provided to you that may result in a violation of these Terms, as determined by Bulkhead in its sole discretion.
- Product Returns. All sales are final. We do not accept returns, exchanges, or cancellations. In the case of damage or if you receive what you believe is a defective product please contact us at the contact details in Section 21 (Contact Us) below.
- Product Subscription. If you wish, you can purchase a recurring subscription of our products whereby you select the products you would like delivered to you on a periodic (monthly) basis. Your subscription will continue and automatically renew until terminated. To use the subscription service, you must provide us with a Payment Method. You must cancel your subscription before it renews in order to avoid billing of the subscription fees for the next billing cycle.
- Billing Cycle. The subscription fee for Bulkhead products and any other charges you may incur in connection with your use of the subscription, such as taxes, shipping fees, and possible transaction fees, will be charged to your selected payment method on the first business day of each month.
- The Site may contain links to websites operated by other parties (“Third-Party Sites”). Bulkhead provides these links to Third-Party Sites as a convenience and use of the Third-Party Sites is at your own risk. The Third-Party Sites are not under the control of Bulkhead and Bulkhead is not responsible for the content available on the Third-Party Sites. Such links do not imply Bulkhead’s endorsement of information or material on any Third-Party Site and Bulkhead disclaims all liability with regard to your access to and use of such Third-Party Sites. Your use of Third-Party Sites is governed by their terms and conditions and privacy policies (if any) (“Third-Party Terms”). It is your responsibility to read and comply with Third-Party Terms.
Intellectual Property Rights
- We welcome feedback from our users and appreciate your comments regarding our services. However, our company policy does not permit us to accept or consider ideas, suggestions, proposal, or materials (“Submissions”) that we have not specifically requested. We hope you will understand that this policy is intended to help us and our customers avoid future misunderstandings when new products or services developed internally by our employees might be similar to or even identical to a customer’s idea.
Mobile Messaging Terms and Conditions
- By agreeing to these Terms or using the Sites, you also agree to receive communications from us, including via email, text message (to the extent permitted by applicable law), calls, and push notifications. Communications from us may include responses to your inquiries, operational communications concerning your Account, or marketing materials.
- If you wish to opt-out of promotional emails, you can unsubscribe from our promotional email list by following the unsubscribe options in the promotional email itself.
- User Opt-In: The Program allows users to receive SMS/MMS mobile messages by affirmatively opting-into the Program, such as through online enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program and you acknowledge and agree that your information may be shared with third-party service providers who help us administer the Program. By participating in the Program, you agree to receive auto-dialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Bulkhead. While you consent to receive messages sent using an auto-dialer, the foregoing shall not be interpreted to suggest or imply that any or all of our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “auto-dialer”). Message and data rates may apply.
- User Opt-Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Bulkhead in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt-out. You understand and agree that the foregoing options are the only reasonable methods of opting-out. You also understand and agree that any other method of opting-out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting-out.
- Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt-Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these Terms. You further agree that, if you discontinue the use of your mobile telephone number without notifying Bulkhead of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Bulkhead, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and Agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs. YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
- Program Description: Without limiting the scope of the Program, users that opt-in to the Program can expect to receive messages concerning the marketing and sale of products, services, and events.
- Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Bulkhead.
- MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
- Our Disclaimer of Warranty: The Program is offered on an “as-is” basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Bulkhead’s control.
- Participant Requirements: You must have a wireless Device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your Device capabilities for specific text messaging instructions.
Notice for California Residents Pursuant to Civil Code Section 1789.3
- Under California Civil Code Section 1789.3, California users of an electronic commercial service receive the following consumer rights notice: California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at 916-445-1254 or 800-952-5210.
- You agree to indemnify and hold us and our affiliates, and their respective business partners, licensees, licensors, officers, directors, employees and agents (the “Indemnified Parties”) harmless from and against any and all claims, demands, losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees and costs), arising out of or in connection with: (i) your use of the Service; (ii) your breach or violation of any of these Terms; (iii) your violation or the rights of any third party. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, which shall not excuse your indemnity obligations. In such event, you shall provide the Indemnified Parties with such cooperation as is reasonably requested by the Indemnified Parties.
- WE PROVIDE THE SERVICE (INCLUDING OUR SITES AND OUR PRODUCTS) ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE MAKE NO GUARANTEE THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR FREE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. WE HAVE NO OBLIGATION TO CORRECT ANY BUGS, DEFECTS OR ERRORS IN THE SERVICE OR TO OTHERWISE SUPPORT, DEVELOP OR MAINTAIN THE SERVICE. While we take reasonable precautions to prevent the existence of computer viruses and/or other malicious programs, we accept no liability for them. We also make no promises or guarantees, whether express or implied, that the content included on the Service is accurate, complete or up to date.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXCLUDE ALL CONDITIONS, WARRANTIES, REPRESENTATIONS AND OTHER TERMS, WHICH MAY APPLY TO THE SERVICE (INCLUDING OUR SITES AND OUR PRODUCTS), WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THE RIGHTS OF THIRD-PARTIES WITH RESPECT TO THE SERVICE (INCLUDING OUR SITES AND OUR PRODUCTS) AND ALL INFORMATION AND CONTENT INCLUDED ON THE SERVICE (INCLUDING OUR SITES AND OUR PRODUCTS).
- No information or advice obtained through the Service, or affirmation by us, by words or actions, shall constitute a warranty.
- Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
Limitation of Liability
- IN NO EVENT SHALL THE INDEMNIFIED PARTIES BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING LOST PROFITS, ANY BREACH OF SECURITY OR ANY DAMAGE TO YOUR DEVICE, LOST DATA, PERSONAL INJURY, PROPERTY DAMAGE, OR LOSSES ARISING OUT OF YOUR USE OF OR RELIANCE ON THE SERVICE OR YOUR INABILITY TO ACCESS OR USE THE SERVICE) ARISING FROM, RELATING TO, OR IN ANY WAY CONNECTED WITH THE USE OR THE PERFORMANCE OF THE SERVICE (INCLUDING OUR PRODUCTS) OR THESE TERMS, HOWEVER ARISING AND WHETHER FRAMED IN CONTRACT OR TORT, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF Bulkhead, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Your sole remedy for dissatisfaction with the Service including, without limitation, content or products offered on the Service, is to stop using the Service (including our products). Such limitation shall also apply with respect to damages incurred by reason of services or products received through or advertised in connection with the Service or any links on the Service, as well as by reason of any information or advice received through or advertised in connection with the Service or any links on the Service. Such limitation shall also apply with respect to damages incurred by reason of any content posted by a third party or conduct of a third party on the Service.
- In the event the foregoing exclusion of liability is determined, in whole or in part, to be invalid or unenforceable, then the Indemnified Parties’ liability arising in connection with the Service or under these Terms whether in contract, tort (including negligence) or otherwise, shall not exceed, under any circumstances, the greater of: (i) the total amount paid for goods in the preceding 30 days, or (ii) One Hundred Dollars ($100). You agree that any claim or cause of action arising under these Terms or the performance or non-performance of the Service (including our products) must be brought within one year after such claim or cause of action arises or be forever barred.
- THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, BULKHEAD’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON BULKHEAD’S CHOICE OF LAW PROVISION SET FORTH BELOW.
- IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, IN PART “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE THAT, IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
- We may terminate these Terms, deactivate your account, and/or your permission to use the Service immediately, without prior notice or liability, if (i) you commit any breach of these Terms, (ii) we discontinue the Service, or (iii) we are prevented from providing the Service for any reason.
- Furthermore, we reserve the right to change, edit, suspend, delete and/or cancel any part of the Service, your account, and/or your access to the Service at any time with or without notice to you: (i) if required by law, or (ii) due to an event beyond our control.
- On termination of these Terms for any reason: (i) all rights granted to you under these Terms will cease immediately, (ii) you must immediately cease all activities authorized by these Terms (including your use of the Service), and (iii) you acknowledge that we may restrict your access to the Service. Sections 8–9 and 13–20 will survive any termination or expiration of these Terms.
Communication Between Us
- If you wish to contact us in writing, or if any condition in these Terms require you to give us notice in writing, you can send this to us by email or as otherwise indicated in Section 21 (Contact Us) at the bottom of these Terms.
- If we have to contact you or give you notice in writing, we may do so by email or using any other contact details you provide to us.
- Governing Law; Jurisdiction. These Terms are governed by California law, without regard to conflict of laws principles. The application of the United Nations Convention on contracts for the International Sale of Goods is expressly excluded. You and Bulkhead agree that, except otherwise provided below, the state and federal courts located in the County and City of San Diego, California will have exclusive jurisdiction of all disputes arising out of or related to these Terms or your use of the Services and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing Bulkhead shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
- User Concerns. Most user concerns can be resolved quickly and to a user’s satisfaction by writing to us at the contact details in Section 21 (Contact Us) below.
- Binding Arbitration. In the event your concern cannot be resolved informally, you and Bulkhead agree that, except as provided in Section 19(f) below, all disputes (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in these Terms. In the event of a conflict between the terms set forth in this Section 19 and the JAMS Rules, the terms in this Section will control and prevail.
Except as otherwise set forth in Section 19(f) below, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and Bulkhead will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in these Terms, (i) you and Bulkhead may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
IN THE CASE OF ARBITRATION AND WHERE PERMITTED BY LAW, YOU ARE AGREEING TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR 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 AS ANY COURT ORDER AND ARE SUBJECT TO VERY LIMITED REVIEW BY A COURT.
- Location. The arbitration will take place in the County and City of San Diego, California, unless the parties agree to video, phone, or internet connection appearances.
- Limitations. You and Bulkhead agree that any arbitration shall be limited to the Claim between Bulkhead and you individually. YOU AND Bulkhead AGREE THAT (i) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR UTILIZE CLASS-ACTION PROCEDURES; (ii) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (iii) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
- Exceptions to Arbitration. You and Bulkhead agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Excluded Dispute; (ii) any Claim related to, or arising from, allegations of theft, privacy, invasions of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
- Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
- Severability. You and Bulkhead agree that if any portion of this Section is found illegal or unenforceable (except any portion of Section 19(f)), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 19(f) is found to be illegal or unenforceable then neither you nor Bulkhead will elect to arbitrate any Claim falling within that portion of Section 19(f) found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County and City of San Diego, California, United States, and you and Bulkhead agree to submit to the personal jurisdiction of that court.
Other Important Terms
- Assignment. The rights granted to you under these Terms may not be assigned without Bulkhead’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
- Severability. If any part of these Terms is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the Terms shall be given full force and effect.
- Attorneys’ Fees. The prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in any legal action relating to these Terms.
- No Waiver. Our failure to enforce any provision of these Terms shall in no way be construed to be a waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by Bulkhead of any provision, condition or requirement of these Terms shall not be understood as a waiver of your obligation to comply with the same provision, condition, or requirement at a later time.
- Equitable Remedies. You acknowledge and agree that Bulkhead would be irreparably damaged if the terms of these Terms were not specifically enforced and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to any breach of these Terms, in addition to such other remedies as we may otherwise have available us under applicable laws.
- Entire Agreement. These Terms, including the documents referenced in these Terms, constitutes the entire agreement between you and Bulkhead with respect to the Service and supersedes any and all prior agreements between you and Bulkhead relating to the Service.
- Transfer. We may transfer our rights and obligations under these Terms to another organization, but this will not affect your rights or our obligations under these Terms.
- U.S. Resident. Bulkhead is hosted and operated entirely in the United States and is subject to U.S. law. Please do not provide us with any information if you live outside the United States. If you are from a jurisdiction outside of the United States, please notify us so that we may take necessary action. This may include terminating your access and deleting your information.
- No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Bulkhead as a result of these Terms or your use of the Service.
If you have any questions or comments relating to the Service or these Terms, please contact us at email@example.com.