Terms of service

TERMS OF USE

IMPORTANT — READ CAREFULLY.  These Terms of Use (the “Terms”), together with the other documents referenced and linked below (collectively, the “Agreement”), describe your rights and responsibilities as a user (“User”) of the swmbrd.com site (the “Site”) and related services (the “Services”), including the availability and sale of products (the “Products”), offered by SWMBRD Sports Inc., its subsidiaries and affiliates (collectively, “SWMBRD”) through the Site or otherwise.  In this Agreement, the terms “we”, “our” and “us” refer to SWMBRD and the terms “you” and “your” refer to a User.

Your use of the PRODUCTS OR Services, including through a visit of to the Site, constitutes your acceptance of this agreement.  Therefore, please take the time to review the terms carefully.

 If you do not agree with some or all of these terms, do not access or use the SITE.

Accordingly, the parties agree as follows:

1. Use and Accuracy of Information

By using the Site, you represent and warrant that you are of the age of majority in the jurisdiction of your residence.  The Site is provided for general information only.  Although SWMBRD uses reasonable commercial efforts to ensure that the information contained on the Site is accurate, SWMBRD does not warrant or make any representation regarding the accuracy or completeness of any information or data provided on the Site.  For example, we have made reasonable efforts to display the Products accurately on the Site, but the Products may not appear as displayed on the Site.

1. The Site and Account Security

We reserve the right to withdraw or amend the Site, and any of the Products, the Services or materials we provide on the Site, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Site is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Site, or the entire Site, to users, including registered users.  For example, purchasing the Products on our Site may be restricted to those users who create a customer account.

To access some of the resources the Site offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Site that all the information you provide on the Site is correct, current and complete. All information you provide to register with the Site (including when you create a customer account to purchase the Products) or otherwise, including but not limited to through the use of any interactive features on the Site, is governed by our Privacy Policy [insert hyper-link] (see Section 4 for more details).

When you create and thereafter use a customer account to purchase the Products, (or if you are provided with, a username, password or any other piece of information as part of our security procedures), you shall treat such information as confidential, and you shall not disclose it to any other person or entity. You also acknowledge that your account is personal to you and you shall not provide any other person with access to the Site or portions of it using your customer account information, including your username or password, or other security information. You shall notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You are solely responsible for all activities that occur under your customer account or using your username and password.  You are also responsible to keep your information up to date by informing us of any changes at the email we have provided to you.  We have the right to disable any customer account, username, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use. We further reserve the right to terminate customer accounts or use of the Site and change the content on the Site (including discontinuing or changing the Products on the Site).

1. Buying Products

Our online store and payment processing are hosted on Shopify.  By creating a customer account on our Site or otherwise placing an order for the Products on our Site, you shall pay all fees, applicable taxes and charges (including shipping charges) charged to your customer account or to you in accordance with the billing procedures in effect when you place your order.  The price of Products, services and delivery charges are set out in the Order Form and are subject to change without notice, but no changes will apply where we have accepted your order and sent you a confirmation of our acceptance. You are responsible to pay all charges for any and all orders placed under your customer account or in your name.  For information on shipping and returns, see our Shipping and Returns Policy [insert hyper-link]. 

We reserve the right, but are not obligated, to limit the sales of the Products or the Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any of the Products or Services that we offer. All descriptions and pricing of the Products are subject to change at any time without notice, at the sole discretion of us. We reserve the right to discontinue any of the Products at any time. Any offer for any of the Products or any of the Services made on the Site is void where prohibited.

We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e‑mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

You shall provide current, complete and accurate purchase and account information for all purchases made at our store. You shall promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

1. Other Terms

Your use of the Site and the Services, including ordering Products, are also governed by the SWMBRD Privacy Policy [insert link when live.].  You consent to the collection, use and disclosure of your personal information by us and third parties in accordance with the terms of and for the purposes set forth in our Privacy Policy.  In addition, your use of the Site and the Services, including ordering Products, will also be subject to such other policies and procedures as may be conveyed to you by us from time to time, including via the Site, the Services, or the Products.

1. Ownership

These Terms provide only a limited and revocable license to access and use the Site.  Accordingly, SWMBRD does not transfer any ownership or intellectual property interest or title in and to the Site, the Products or the Services to you or anyone else in connection with your use of the Site.  All text, graphics, user interfaces, visual interfaces, photographs, sounds, artwork, computer code (including HTML code), programs, software, products, information, and documentation as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of any content contained on or available through the Site and rights to all of the Products featured on the Site (collectively, the “Materials”) are exclusively owned, controlled, or licensed by SWMBRD.  Names, logos, marks, and icons identifying SWMBRD, such as “SWMBRD”, or the Products or Services are owned exclusively by SWMBRD, and any use of such names, logos, marks and icons without the prior express written permission of SWMBRD is hereby expressly prohibited.  Other trademarks or service marks identified on or through the Site may be the trademarks or service marks of third parties.  No part of the Services or purchasing the Products will be construed as granting any license or right to use any intellectual property right of SWMBRD (whether by implication or otherwise), except with our express written permission or such other party that may be the owner thereof.  The Materials, including the Products, are protected under industrial design, design patent, copyright,  trademark and other laws of Canada and other countries.  SWMBRD owns all copyright in the selection, co-ordination, arrangement and enhancement of the Materials on the Site and otherwise. Any use of any of the Materials (whether in whole or in part) is strictly prohibited, except only and to the limited extent expressly permitted above.  Other than to place order for the Products on our Site, you shall not access or use for any commercial purposes any part of the Site or any of the Services, Products or materials available through the Site.

1. Submissions

For any content that you submit on the Site or through any social media platform, you grant SWMBRD a, perpetual, irrevocable, royalty-free, transferable right and license to use, copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from, sell and distribute such content and incorporate such content into any form, medium or technology throughout the world without compensation to you.

By submitting content to the Site, or to us through social media or otherwise, you represent and warrant that you are the sole author and owner of the intellectual property rights in the content and that you waive all moral rights in such content.  You shall not submit, publish or otherwise disseminate to SWMBRD or through the Site (or a social media platform) anything which: (a) defames, libels or invades the privacy of any person; (b) is obscene, pornographic, abusive or threatening; (c) infringes on any intellectual property or other rights of any person or entity; (d) has contaminating or destructive properties (i.e. software viruses); (e) violates any law; (f) advocates or describes any illegal activity; or (g) advertises or solicits funds for goods or services.  We will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting any such information or materials.  We may enforce our rights to the fullest extent of the law should you breach any of these Terms.

1. Links

The Site may contain links to other web sites.  These links are provided solely as a convenience to you and the inclusion of any link does not imply endorsement, investigation or verification by SWMBRD of the linked web site or information contained therein.  Your use of such sites and your dealings with the owners or operators thereof are at your own risk.

1. Linking to the Site and Social Media Features

You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you shall not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our express written consent.

The Site may provide certain social media features that enable you to:

• link from your own or certain third-party websites to certain content on the Site;
• send e-mails or other communications with certain content, or links to certain content, on the Site; or
• cause limited portions of content on the Site to be displayed or appear to be displayed on your own or certain third-party websites.

You may use these features solely as they are provided by us, solely with respect to the content they are displayed with and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you shall not:

• establish a link from any website that is not owned by you;
• cause the Site or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other site;
• link to any part of the Site other than the homepage; or
• otherwise take any action with respect to the materials on the Site that is inconsistent with any other provision of these Terms of Use.

You shall ensure that the website from which you are linking, or on which you make certain content accessible, complies in all respects with these Terms.  You shall cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission without notice.  We may disable all or any social media features and any links at any time without notice in our discretion.

1. Reliance on Information Posted and Disclaimer of Warranties

The information presented on or through the Site is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information and do not recommend or endorse any specific product or service. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Site, or by anyone who may be informed of any of its contents. 

The Site may contain typographical errors or inaccuracies and may not be complete or current.  We therefore reserve the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior or any notice to you.

The Site, the Materials and the Services are provided “as is”, “where is”, “as available”, without representations or warranties of any kind by SWMBRD.  TO THE FULLEST EXTENT PERMITTED BY LAW, SWMBRD AND ALL DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF SWMBRD DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WITH RESPECT TO THE SITE, THE SERVICES, AND THE MATERIALS WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, OR ARISING BY COURSE OF DEALING OR USAGE OF TRADE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE OR USE OR THAT ANY PARTICULAR RESULT BE OBTAINED THROUGH USING THE SITE, THE MATERIALS OR THE SERVICES.  Without limiting the foregoing, we do not represent or warrant that the Site, the Services or the Materials are accurate, complete, reliable, useful, timely or current or that the Site will operate without interruption or error.  We assume no responsibility, and are not liable for, any damages to your computer equipment, data or other property on account of your access to, use of, or browsing on the Site, or inability to do any of the foregoing.

ALL PRODUCTS PURCHASED THROUGH THE SITE ARE SUBJECT ONLY TO WARRANTIES EXPRESSLY PROVIDED BY SWMBRD. WITHOUT LIMITING THE FOREGOING, SWMBRD SPECIFICALLY DISCLAIMS LIABILITY FOR THE USE, MISUSE, OR IMPROPER SELECTION OF THE PRODUCTS, AND NON-COMPLIANCE WITH PROVIDED DIRECTIONS. SWMBRD DOES NOT WARRANT THAT ANY OF THE PRODUCTS WILL MEET YOUR EXPECTATIONS.  

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

1. Limitation of Liability

Your use of the Site, Services, Materials and Products purchased on the Site are undertaken at your own risk.  Under no circumstances will SWMBRD or any directors, officers, employees, agents, contractors and suppliers of SWMBRD, be liable for any direct, incidental, consequential, indirect, or punitive damages arising out of your access to or use of the Site, the Services, the Materials, the Products available on the Site, your reliance on the Site, the Services, and the Materials, or any consequences flowing therefrom.  SWMBRD is not responsible for late, lost, incomplete, illegible, misdirected or stolen messages, unavailable network connections, failed, incomplete, garbled or delayed computer transmissions, on-line failures, hardware, software or other technical malfunctions or disturbances or any other communications failures or circumstances affecting, disrupting or corrupting communications.  THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL LOSSES AND DAMAGES OF ANY KIND (WHETHER GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, INCOME OR PROFITS OR FAILURE TO REALIZE ANTICIPATED BENEFITS), WHETHER BASED IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.  NOTWITHSTANDING THE FOREGOING, THE ENTIRE LIABILITY OF SWMBRD, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS AND SUPPLIERS FOR ANY REASON SHALL BE LIMITED TO THE AMOUNT PAID BY YOU TO SWMBRD FOR ANY OF THE PRODUCTS OR SERVICES PURCHASED ON THE SITE. 

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.  TO THE EXTENT THAT SWMBRD CANNOT DISCLAIM ANY IMPLIED OR STATUTORY WARRANTY, THE EXTENT OF SWMBRD’S LIABILITY SHALL BE THE MINIMUM AMOUNT PERMITTED UNDER APPLICABLE LAW.

If you are dissatisfied with the Site, the Services, the Products, the Materials, or with this Agreement, your sole and exclusive remedy, except for remedies that are otherwise expressly provided, is to discontinue using the Site, the Services, the Products, or the Materials, as applicable.

1. Indemnification

You shall indemnify and save harmless SWMBRD and all directors, officers, employees, agents, contractors and suppliers of SWMBRD from and against any claim, cause of action, demand, cost, loss, expense or liability (including without limitation reasonable professional fees) brought against or suffered or incurred by us as a result of your use of the Site, the Services, the Products or the Materials or your breach of this Agreement. When we are threatened with suit or sued by a third party, we may seek written assurances from you concerning your promise to indemnify us; your failure to provide those assurances may be considered by us to be a material breach of this Agreement.  In addition, in the event we are made a party to any claim, suit or action relating to or arising from any services offered by us that is: (a) initiated by you, which is unsuccessful; or (b) initiated by a third party, who is suing you; you will reimburse us at a reasonable rate for all personnel time and expenses expended by us in response to such claim, suit or action including without limitation, all attorney fees and expenses incurred by us with respect to such response. This indemnification obligation will survive termination of this Agreement and your cessation of use of the Site and the Services.

1. Governing Law and Courts

This Agreement and your use of the Site will be governed by and interpreted exclusively in accordance with the laws of the Province of British Columbia, and the federal laws of Canada applicable in British Columbia, excluding its conflict of laws rules and all private international laws.  You further acknowledge that despite being available from a variety of jurisdictions, the Site will be deemed solely based in the Province of British Columbia, Canada; and that the Site will be deemed to be passive in nature and not giving rise to personal jurisdiction over SWMBRD in jurisdictions other than the Province of British Columbia.  You consent and submit to the exclusive jurisdiction of the Courts located in the Province of British Columbia in all disputes arising out of or relating to your use of or inability to use the Site and this Agreement.  Nothing in this Agreement precludes SWMBRD’s application for injunctive remedies or other urgent legal relief in any jurisdiction.

1. Severability; Waiver

The terms of this Agreement are severable.  If any provision of this Agreement is determined to be unenforceable or invalid, then such provision will be enforced to the fullest extent permitted by applicable law, and such determination will not affect the validity and enforceability of any other remaining provisions.  No consent or waiver by either party to or of any breach or default by the other party in its performance of its obligations under this Agreement will be deemed or construed to be a consent to or waiver of a continuing breach or default or any other breach or default of those or any other obligations of that party.  No consent or waiver will be effective unless in writing and signed by both parties.

1. Survival

The following sections shall survive termination of these Terms:  Sections 4, 5, 6, 7, 9, 10, 11, 12, 13, 14 and 15, as well as any section which, by its nature survives termination, shall survive termination of these Terms and your cessation of use of the Site, the Products, or the Services.

1. Entire Agreement

This Agreement constitutes the entire agreement between you and us relating to your use of the Site, the Services, the Products, and the Materials, and supersedes any prior understandings or agreements (whether electronic, oral or written) regarding the subject matter, and cannot be amended or modified except by our express and explicit agreement to modify this Agreement in writing, or by us making such amendments or modifications available to you pursuant to a modification of this Agreement as permitted herein.  In the event of a conflict between the provisions of the Terms and the provisions of any other document or agreement incorporated or referenced herein, these Terms will govern to the extent of the inconsistency.  We reserve the right to unilaterally update or modify (each, a “change”) this Agreement at any time and from time to time.  We will notify you of any changes to this Agreement by posting notice of such changes on the Site.  Your continued use of the Site following notice of such change means that you accept the amendments.

Questions about the Site, or regarding your rights and responsibilities under this Agreement, can be directed to info@swmbrd.com.

Last modified:  April 27, 2023