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TERMS & CONDITIONS OF SITE USE
EFFECTIVE December 12, 2019
PLEASE READ THE BELOW TERMS CAREFULLY. THE TERMS AFFECT YOUR LEGAL RIGHTS AND INCLUDE A WAIVER OF YOUR RIGHT TO A JURY TRIAL AND RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR ARBITRATION FOR ANY CLAIMS ARISING OUT OF OR RELATING TO YOUR USE OF THE SITES.
1. TERMS GOVERNING ALL ORDERS. These Terms apply to any and all purchases made by you from us via this Site. If you place an order with us it means you have read and expressly agree, consent to, and accept these Terms. You must be 18 years or older to make a purchase on this Site. These Terms apply to all sales of bicycles and any and all other goods and products offered on this Site (collectively, “Products”). In the event of any inconsistency or conflict between these Terms and any provision in any Customer-submitted order or writing, in any other document writing, or any oral arrangement in connection with an order of any Product, these Terms shall govern and control (and any inconsistent provisions shall be void). We reserve the right to change or modify these Terms at any time in our sole discretion. Notice of any such changes to these Terms will be provided by us by posting a notification on this Site or updating the date referenced at the top of the revised Terms or as otherwise deemed appropriate by us. Our right to require strict observance and performance of each of these Terms shall not be reduced, vitiated, or otherwise affected by any current or past waiver of any of these Terms (or by any previous course of dealing).
2. ORDERS AND ACCEPTANCE. When you place an order on this Site, such order will not be deemed accepted by us unless and until an order acknowledgment is sent to you via email by us (“Order Confirmation”). Orders accepted by us may not be cancelled by you without our express written consent, which we may withhold in our sole discretion. All orders are subject to the availability of the ordered Product. We reserve the right to impose quantity limits on any order, to reject all or part of an order, and to discontinue products or services without notice, even if you have already placed your order. Also, even if an order has been accepted, we may subsequently cancel such order in whole or in part due to Product availability (including without limitation, any discontinuation of the Product), price change, if the incorrect Product price was displayed on this Site, or as otherwise determined by us in our sole discretion. You will be notified of any order cancellation and any amounts you have paid to us in respect of such order shall be refunded to you as set forth in the “Payment” paragraph of these Terms.
3. PRICES AND TAXES. All prices on this Site are shown in United States dollars. All prices are subject to change without notice, and exclude Taxes (as defined below), shipping and handling charges. The prices quoted for the Products sold via this Site do not include any federal, state or local sales, use, value-added, excise, gross receipts or any similar transaction or consumption taxes, tariffs, duties or other charges imposed on or measured by the use or sale of Products (collectively, “Taxes”). You shall be responsible and pay for, and reimburse us if we pay, any such Taxes (except for income Taxes imposed on us). If we are required by any governmental authority or agency to collect and pay any Taxes on your behalf, we may invoice you for such amounts including any interest or penalty assessed thereon. Products displayed on this Site may be also available at a BMC authorized retailer in our dealership network (each an “Authorized BMC Dealer”); however, prices displayed for such Products on this Site may vary from advertised promotional prices available at an Authorized BMC Dealer.
4. PAYMENT. All orders must be paid in full prior to shipment. We accept all major credit cards, such as MasterCard, Visa, and American Express, and debit cards. Payment information is submitted by you upon the placement of any order, and acceptance, fulfillment and shipping of the order by us are subject to verification of payment information and availability of funds. Only valid credit or debit cards acceptable to us may be used and all refunds will be credited to the same card used in the purchase. By submitting your order, you represent and warrant that you are authorized to use the designated credit or debit card and authorize us to charge your order (including Taxes, shipping, handling and any other amounts described on this Site) to that credit or debit card. If the credit or debit card cannot be verified, is invalid, or is not otherwise acceptable, your order may be suspended or cancelled automatically.
5. WEBSITE ERRORS. We do not warrant that any Product, description, photograph, pricing or other information on this Site is accurate, complete, reliable, current or error-free. In the event of an error, whether on this Site, in an Order Confirmation, in processing an order, delivering a Product or otherwise, we reserve the right to correct such error and revise your order accordingly if necessary (including charging the correct Product purchase price) or to cancel the order and refund any amount charged. Your sole remedy in the event of such error is to cancel your order and obtain a refund.
6. AGREEMENT TO CONDUCT TRANSACTIONS ELECTRONICALLY; RECORDING/ COPIES. You agree that all of your transactions with or through this Site may, at our option, be conducted electronically from start to finish, and that any oral conversations may be recorded. If we decide to proceed non-electronically, those transactions will still be governed by the remainder of these Terms unless you enter into different written terms provided by us. You are responsible to print or make an electronic a copy of these Terms and any other contract or disclosure that we are required to provide to you.
7. SHIPPING AND HANDLING; DELIVERY AND RISK OF LOSS. All Products purchased on this Website can only be shipped to a valid street address (i.e., we do not deliver to P.O. Boxes, Army Post Office (APO) and Fleet Post Office (FPO)) within the contiguous 48 states of the United States (which excludes Alaska, Hawaii, Puerto Rico and all other foreign countries) to an Authorized BMC Dealer from whom you will pick it up and take delivery. Although we are authorized to make shipping arrangements on your behalf, you are solely responsible for all shipping and handling charges which are displayed on this Site when an order is placed. All Products are shipped via standard ground delivery (i.e., no provisions for expedited freight on Products). Title and risk of loss or damage to the ordered Product shall pass to you at the time the Product is delivered to the BMC authorized retailer Shipping times shown on this Site are good faith estimates only, and actual delivery dates may vary. We will use commercially reasonable efforts to fill your order(s) within the timeframe stated on this Site but in no event shall we be liable for any damages associated with our inability to meet any such timeframes.
8. RETURNS. Unless otherwise indicated on this Site as a “nonreturnable” item, within 14 days following delivery to the designated Dealer, you may return a Product for a full refund of the purchase price (not including initial shipping and handling charges) plus any applicable Tax, so long as any such Product is in new, complete, unused and undamaged condition, with the original price and information tag(s) included, in the original packaging, and packed in same manner as delivery. Returns will be processed only at the designated Dealer selected for delivery. We are not responsible – you are - for any fees that may be assessed by the designated Dealer to facilitate the return. BMC will issue a call tag to pick up the bike from the designated Dealer. Subject to these Terms, a refund will be issued (excluding any shipping and handling charges) for Product once it is received and verified to be in the conditions required above, at BMC’s discretion. To initiate a return, bring your order, the Product, and original packaging and tags, with proof of purchase, to the designated Dealer which delivered and assembled your bike. “Used” Product may be considered for return on a case by case basis at BMC’s sole and unfettered discretion, and in such cases, you will be issued a credit on your customer account with BMC USA Corp., which credit may only be used for the purchase of another BMC Product. We will not accept the return of BMC Products which are damaged due to misuse or abuse. A 15% restocking fee will be assessed on all “used” Products returns which we permit on a case by case basis. All returns of “used” products must be initiated and processed through our Customer Service Department, as opposed to a BMC Dealer. Once the return process has been initiated, you will be issued a return authorization number (RA#) via email. Contact: ReturnsUSA@BMC-switzerland.com or by phone at +1 (888) 262-7755. Please allow 3-5 days to process a return after it arrives in our Distribution Center. You will receive an email notifying you that the return has been received.
9. EXCHANGES. We do not permit “exchanges” of Products which you order online. If you would like to choose another Product than one you have ordered online, please follow the return process outlined above and then initiate a new order. This will secure the inventory and get things moving, however please note that these are considered two (2) different transactions.
10. PRODUCT CHANGES. From time to time and without notice, we reserve the right to make changes as we deem necessary or desirable, including but not limited to changes related to design, specifications, manufacturing or production of our Products. We may furnish suitable substitute Products or components for Products or components which are unobtainable by us because of any priorities, rules, regulations or the like established by governmental authorities or agencies, or due to price changes or the non-availability of materials or components from suppliers. You may not make any changes in the designs or specifications for Products purchased on this Site.
11. NOT FOR RESALE. You agree and represent that you are purchasing the Product(s) for your own use and not for resale.
12. RESERVATION. We reserve the right to refuse to sell Products to anyone for any reason, in its sole discretion.
13. WARRANTY; EXCLUSIVE REMEDY. Subject to the following limitations, terms, and conditions, we warrant to the original purchaser (and only the original purchaser) of each purchased Product pursuant to the following terms:
a. The warranty only covers BMC-made frames, rigid forks and components (hereinafter BMC products). The warranty only covers new BMC products that were purchased from a BMC retailer. All other parts and components are excluded from this warranty.
b. BMC grants the following warranty periods from the date of delivery:
i. Frame: 3 years
ii. Paint: 2 years (1 year for models before 2014)
iii. Other BMC products: 2 years
iv. Buyers of a bicycle from Model Year 2011 onwards have the option of registering their frames within 30 days after purchase with a BMC retailer on this Site, which will extend the warranty period for the frame from 3 to 5 years. The warranty period is not extended after repair/exchange of the frame.
c. The following components/parts and situations are excluded from this warranty or lead to exclusion from this warranty:
i. Technical changes made to the bicycle without the approval of the manufacturer
ii. Later alteration/additions involving incompatible or non-original parts
iii. Wearing parts such as ball bearings, sliding bearings, bearing bolts, bearing screws, etc.
iv. Non-BMC parts/components
v. Consequential damage by use of incompatible or non-original parts
vi. Repair of the problem by an Authorized BMC Retailer/ Dealer is possible
vii. Inappropriate use/transport
viii. Missing warranty inspection by retailer or BMC within appropriate timeframe
ix. Inappropriate maintenance (follow the Owners’ Manual)
x. Damage due to missing or faulty adjustment or worn components
xi. Consequences/ damage due to a fall, in other words, crashes void this warranty
xii. Damage due to weather effects (for example salt in air due to proximity to ocean/sea) or normal wear and tear
xiii. Damage due to unsuitable cleaning agents or additives, or tools such as high-pressure cleaners
xiv. Commercial lending/rental
d. BMC agrees to provide the following services within the respective warranty periods:
i. Repair or replacement with equivalent parts/components at the discretion of BMC, provided that the model and/or color of the replacement may deviate from that of the replaced part;
ii. Services that are not covered by the warranty and that are within the area of competence of the retailer as well as the cleaning of bicycles delivered in a dirty state are charged according to the usual hourly rates, material and transport costs;
iii. A service provided under warranty (repair/replacement) does not extend the original warranty period.
iv. No warranty claims exist in addition to those mentioned above.
e. Warranty claims are to be submitted to your BMC retailer in the form of a completed warranty application form, the copy of a warranty card or a purchasing receipt from your BMC retailer.
f. Your BMC retailer will report your warranty claim, including pictures of the defective parts and the frame number, to BMC which will decide on further procedures immediately after receipt of the warranty request. Parts that require inspection will be detached, cleaned and forwarded to BMC as required.
g. The BMC retailer will be provided with the products that have been repaired or replaced under warranty. The assembly and basic adjustment must be performed by the BMC retailer. All warranty claims can be rejected when this requirement is not met.
h. Crash replacement - The option of a once-off crash replacement service is provided for certain models after warranty registration on the Site. Please consult the page 'Crash replacement' for details of the terms and conditions and a list of the models covered.
i. Note that the governing law of the Warranty terms applicable to online purchases under these Terms is the governing law clause set forth below and that these Terms shall supersede any other governing law provision on the Site.
14. LIMITED REMEDY. Unless otherwise provided, the sole remedy under the above warranty, or any implied warranty, is limited to the replacement of defective parts with those of equal or greater value at our sole discretion. EXCEPT TO THE EXTENT SPECIFICALLY PROHIBITED BY LAW, IN NO EVENT SHALL BMC BE RESPONSIBLE FOR DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, PROPERTY DAMAGE, OR ECONOMIC LOSSES, WHETHER BASED ON CONTRACT, WARRANTY, NEGLIGENCE, PRODUCT LIABILITY, OR ANY OTHER THEORY.
a. EXCLUSIONS. THE ABOVE WARRANTY, OR ANY IMPLIED WARRANTY, DOES NOT COVER NORMAL WEAR AND TEAR. ALL WARRANTIES ARE VOID IF THE BICYCLE IS MODIFIED FROM ITS ORIGINAL CONDITION OR THE BICYCLE IS USED FOR OTHER THAN NORMAL ACTIVITIES, INCLUDING, BUT NOT LIMITED TO, FAILING TO FOLLOW THE OWNER’S MANUAL OR USING THE BICYCLE FOR COMMERCIAL ACTIVITIES OR IN COMPETITIVE EVENTS, INCLUDING BUT NOT LIMITED TO BICYCLE RACING, BICYCLE MOTORCROSS RACING, STUNT RIDING, RAMP JUMPING OR SIMILAR ACTIVITIES, AND TRAINING FOR SUCH ACTIVITIES OR EVENTS. BMC MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED. Except to the extent specifically prohibited by law, ALL IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO THAT OF THE EXPRESS WARRANTIES STATED ABOVE.
15. RIGHT TO MODIFY; WARRANT PROCESS. We reserve the right to modify this limited warranty at any time, in our sole discretion. We reserve the right to require additional identification, proof of purchase, or additional verifiable information to help us locate your purchase of the Product in our records. If you do not comply with any of the above conditions, we reserve the right to refuse the return or exchange, or to impose different or additional conditions, including (without limitation) using the current sales price of the returned Product. Within 30 days following the return to us of the allegedly defective Product (pursuant to a warranty claim that complies with the foregoing requirements of this Paragraph) we will inspect any such returned Product. If we determine that the Product is in compliance with the applicable warranty, we will so notify you and no further action will be taken. Alternatively, if we determine that the Product is not in compliance with the applicable warranty, we will so notify you (and repair or replace, as applicable).
16. DISCLAIMER OF OTHER WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH in these Terms and except to the extent specifically prohibited by law, BMC DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED on all products, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. We makes no other express warranties and the warranties set forth in these Terms supersede any prior representations and understandings regarding the Products, including any warranty arising from course of dealing, course of performance, or usage of trade.
18. USE OF THE SITE. This Site is not targeted towards, nor intended to be used by, children under the age of 13. By using this Site, you represent and warrant that you are 13 years of age or older. If you are not at least 13 years of age, do not access or use this Site. If you are under the age of 18, you may use this Site only with the involvement and supervision of a parent or guardian. Further, you may not make any purchases from this Site unless you are at least 18 years old.
19. WEBSITE CONTENT; LICENSE. Unless otherwise indicated on this Site, this Site and all content and materials therein, including but not limited to the BMC logo(s) and all designs, text, graphics, pictures, information, images, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Website Content”) are the proprietary property of BMC or its parent, affiliates, licensors, suppliers or users and are protected by United States and international copyright laws. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, non-transferrable license to access and use this Site and this Website Content solely for your personal, non-commercial use.
20. RESTRICTIONS ON USE OF THIS SITE. You agree that you will access and use this Site and this Website Content only in a lawful manner and only in accordance with these Terms. You may not sublicense, assign, transfer or encumber any part of your rights to use this Site or this Website Content. This license excludes any resale or commercial use of this Site or this Website Content. We may revoke your access and use of this Site at any time (including if you violate these Terms), and nothing herein constitutes a representation that this Site will be available to you for your access or use. We reserve the right to modify or discontinue, temporarily or permanently, this Site or any of its features or portions thereof (including this Website Content) without prior notice. You agree that we will not be liable for any modification, suspension or discontinuance of this Site or any of its features or any part thereof. Additionally, you agree that you will not (and the above-referenced license above excludes your ability to): (i) gain access, or attempt to gain access, to any portion of this Site, or any systems or networks connected to this Site, by hacking, password mining or any other illegitimate or unlawful means; (ii) create or maintain any link from another site to any page on this Site without our prior written consent; (iii) run or display this Site (or any Website Content) in frames or through similar means on another site, application or location, without our prior written consent; (iv) engage or attempt to engage any resale of this Site or Website Content; (v) collect or use any Product listings, pictures or descriptions; (vi) modify or make any derivative use of this Website Content in any way or reproduce or publicly display, perform, or distribute or otherwise use any such materials for any public, non-personal or commercial purpose; (vii) use data mining, robots, or similar data gathering and extraction tools; (viii) create or transmit unsolicited electronic communications, such as spam, use any device, software or routine to interfere or attempt to interfere with the proper working of this Website, or otherwise interfere with users’ enjoyment of this Site; (ix) transmit or upload to this Site any item containing or embodying any virus, worm, defect, trojan horse, software bomb or other harmful or malicious code or feature that does or could interfere with, damage or degrade in any manner the performance or security of this Site or adversely affect a user; (x) submit to this Site any content that is unlawful or facilitates, constitutes, promotes or encourages illegal activity or otherwise use this Site to transfer or store illegal material; or (xi) access or use this Site or this Website Content in any manner which would violate any applicable local, state, federal or international laws. Without limiting the foregoing, any use of this Site in violation of the foregoing, or other improper use, without our prior written consent is strictly prohibited and will automatically terminate the above-referenced license. Any such improper or unauthorized use may also violate applicable laws (including but not limited to copyright, trademark and other applicable laws). Subject to the above-referenced limited license, nothing in these Terms shall be construed as conferring any license to intellectual property rights. The above-referenced license is revocable at any time by us for any reason whatsoever.
21. USER CONTENT. This Site may include product reviews, discussion forums, blogs or other interactive features or areas (collectively, “User Areas”), in which you or other users can create, post, transmit or store any content, such as text, music, sound, photos, video, graphics or code on this Site, or publish content and other information through your social media accounts (e.g., Twitter™, Instagram™, Pinterest™, Facebook™), such as your name, social media handle, accompanying text, and any images, all of which you allow us to feature on this Site (collectively, “User Content”). All User Content is publicly-viewable by any user using or accessing this Site. When posting User Content, you agree to contribute responsibly, to treat others with respect, and to adhere to these Terms. By using or accessing any User Areas, you agree not to post, upload to, transmit, distribute, store, create or otherwise publish, send or submit any User Content that (i) contains, or provides links to, obscene, profane, harassing, inflammatory, or threatening language, viruses, malware of any kind, corrupted data or other harmful, disruptive or destructive files or code, political campaigning, commercial solicitation, chain letters, mass mailings, any form of “spam,” or any material that could be considered harmful, sexually explicit, pornographic, suggestive, indecent, lewd, violent, abusive, or degrading; (ii) violates the rights of any party or that would otherwise create liability or violate any local, state, national or international law; (iii) may impinge upon or violate the publicity, privacy or data protection rights of others, including pictures or information about another individual where you have not obtained such individual’s consent; (iv) infringes on any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party; (v) displays, describes or encourages usage of any Product in a manner that could be offensive, inappropriate or harmful to us or any user or consumer or that is contrary to any instructions or warnings relating to such particular Product; (vi) that, in our sole judgment, restricts or inhibits any other person from using or enjoying this Site or which may expose us or our Site users to any harm or liability of any type. By posting User Content to or through this Site, you represent and warrant that (a) such User Content is non-confidential; (b) you own, control or otherwise have the necessary rights, title and interest in and to the User Content to use and post such User Content to this Site and to grant us the accompanying rights with respect thereto; (c) the User Content is neither inaccurate, misleading nor harmful in any manner; and (d) the User Content, and your use and posting thereof on this Site, do not and will not violate these Terms or any applicable law, rule or regulation.
22. LICENSE. For any User Content you submit, you grant to us a nonexclusive, sublicensable, fully paid-up, perpetual, irrevocable, royalty-free, transferable right and license to use, display, perform, transmit, copy, modify, delete, adapt, publish, translate, create derivative works from, sell and distribute such User Content and to incorporate the User Content into any form, medium, or technology, now known or hereafter developed, throughout the world, all without acknowledgment or compensation to you. For this reason, do not send us any User Content that you do not wish to license to us, including any confidential information or any original creative materials such as stories, product ideas, computer code or original artwork. In addition, you grant to us the right to include the name provided along with the User Content submitted by you; provided, however, we are not obligated to include such name with such User Content. We are not responsible for the use or disclosure of any personal information that you voluntarily disclose in connection with any User Content you submit. You represent and warrant that you have all rights necessary for you to grant the licenses granted in this Paragraph. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User Content that you may have under any applicable law under any legal theory.
23. USER CONDUCT. You agree that you are solely responsible for your User Content and for your use of such User Areas, and that you are using the User Areas at your own risk. except to the extent specifically prohibited by law, we are not responsible or liable for the conduct of, or your interactions with, users of this Site (whether online or offline), nor are we responsible or liable for any associated loss, damage, injury or harm; we take no responsibility and assumes no liability for any User Content posted, stored or uploaded by you or any third party or for any loss or damage thereto, nor are we liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter; and you agree to indemnify us for all claims resulting from any User Content you submit.
24. ENFORCEMENT. Enforcement of the Terms is at our sole discretion and the absence of enforcement of these Terms in certain instances does not constitute a waiver of our right to enforce the Terms in other instances. Although we have no obligation to monitor any User Content on this Site, we reserve the right and has absolute discretion to monitor, alter, remove, edit, or refuse to post or allow to be posted any User Content on this Site, or to disclose any User Content and the circumstances surrounding its transmission to any third party, in each case, at any time and for any reason without notice. Any use of this Site in violation of these Terms may result in, among other things, termination or suspension of your rights to use the User Areas and/or this Site.
25. TRADEMARKS. All BMC trademarks, whether registered or not, all BMC logo(s) and other Product or service names, logos or slogans that may appear on this Site are trademarks or registered trademarks of BMC, its parent, and its affiliates, licensors and suppliers and as the exclusive property of BMC, its parent, and its affiliates, licensors and suppliers may not be copied, imitated or used, in whole or in part, without the prior written permission of BMC or the applicable trademark holder. In addition, the look and feel of this Site, including the design, arrangement and collection of this Website Content, and all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of BMC and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in this Site are the property of their respective owners. Reference to any products, services, processes or other information, by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by BMC. Nothing contained on this Site grants or should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of our intellectual property or the look and feel of this Site without the express written consent of BMC or such third party owner.
26. INDEMNIFICATION. Except to the extent specifically prohibited by law, you agree to forever indemnify, defend and hold us harmless from and against any claims, liabilities, damages, costs and expenses (including, but not limited to, reasonable attorneys’ fees and expenses and reasonable expert witness fees and expenses) arising from of or related to any violation by you of any of these Terms.
27. AS-IS WEBSITE; ASSUMPTION OF RISK; LIMITATION OF LIABILITY. This Site and this Website Content are provided on an “AS IS” and “WITH ALL FAULTS” (without representations, warranties or conditions of any kind, either express or implied), and BMC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED on this Site AND WEBSITE CONTENT, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BMC does not represent or warrant that this Site is accurate, complete, reliable, current or error-free. BMC does not represent or warrant that this Site or its servers are free of viruses or other harmful components.
28. EXCEPT TO THE EXTENT SPECIFICALLY PROHIBITED BY LAW, IN NO EVENT SHALL BMC BE LIABLE FOR special, punitive, indirect, incidental or consequential damages, including without limitation, liability for loss of use, loss of profits, loss of Product, DIMINUTION IN VALUE, LOSS OF DATA or business interruption, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, however the same may be caused (including the fault or negligence of BMC OR OTHERWISE), ARISING FROM OR RELATING TO THE USE OF, OR INABILITY TO USE, THIS SITE (INCLUDING WITHOUT LIMITATION ANY DAMAGES ARISING FROM OR RELATING TO YOUR RELIANCE ON ANY INFORMATION ON THIS SITE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR FAILURE OF PERFORMANCE OF THIS SITE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, ACTS OF THIRD PARTIES BEYOND OUR CONTROL, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR OTHERWISE). EXCEPT TO THE EXTENT SPECIFICALLY PROHIBITED BY LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF BMC (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING FROM OR RELATING TO THE USE OF OR INABILITY TO USE THIS SITE EXCEED ANY COMPENSATION YOU PAY TO BMC FOR ACCESS TO OR USE OF THIS SITE.
29. GOVERNING LAW. These Terms shall be construed (both as to validity and performance) and enforced in accordance with the substantive laws of the State of California applicable to agreements made and to be performed wholly within such jurisdiction (notwithstanding any choice of law principles, statutes or rules to the contrary). Any rule of law or any legal decision that would require interpretation of any ambiguities in these Terms against the party that drafted it, is of no application and is hereby expressly waived. These Terms shall be interpreted in a reasonable manner.
30. JURISDICTION. Any action or proceeding arising in connection with or relating to the matters covered by these Terms shall be resolved through binding arbitration through JAMS or its successor in San Diego, California, before a single mediator. The parties will cooperate with JAMS and with one another in selecting an arbitrator from the JAMS panel of neutrals and in scheduling the arbitration proceedings. The parties agree that they will participate in the arbitration in good faith and that they will share equally in its costs, however in the event the dispute is an action by BMC to collect amounts due, the other party shall bear the costs of arbitration and the reasonable attorney’s fees of BMC. You hereby (i) expressly and knowingly waive any right you may have to assert the doctrine of forum non conveniens or otherwise object to venue, (ii) stipulate to in personam jurisdiction in California, and (iii) agree to accept service of process by registered or certified mail. Notwithstanding this, you agree that BMC shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. Notwithstanding the foregoing and regardless of any statute or law to the contrary, you must file any claim or action related to these Terms within one (1) year after such claim or action accrued; otherwise, you will have waived the claim or action.
31. ENTIRE AGREEMENT. These Terms constitute the entire legal agreement between you and BMC and govern your use of this Site, and supercede all prior or contemporaneous agreements, representations, warranties and understandings between you and BMC.
32. SEVERABILITY. These Terms shall be severable in the event that any of the provisions hereof are held to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent permitted by law.
33. HEADINGS. Headings are for reference purposes only and do not limit the scope or extent of such section.
34. FAILURE TO ACT NOT A WAIVER. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. You agree that if we do not exercise or enforce any legal right or remedy which is contained in these Terms (or which we have the benefit of under any applicable law), this will not be taken to be a waiver of our rights and that those rights or remedies will still be available to us.
35. THIRD PARTY BENEFICIARIES. You acknowledge and agree that any other entities controlled by us or under common control with BMC shall be third party beneficiaries to these Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms which confers a benefit on (or rights in favor of) them.
36. EXCLUSIVITY. The parties’ rights, liabilities, responsibilities and remedies with respect to the Products shall be exclusively those expressly set forth in these Terms. The waivers, releases, limitations on liability and on remedies expressed in these Terms shall apply even in the event of the default, negligence, breach of contract, strict liability, of the party released or whose liability is limited and shall extend to their directors, officers, and employees.