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TERMS AND CONDITIONS
Last Updated: September 2013
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY
1. PRODUCT PURCHASE
From time to time, New Balance may offer products for sale as part of the Service. New Balance reserves the right to change the descriptions, specifications, and prices of the products offered on this website without notice to you and at any time. Any such changes will only apply from the date the changes are made, going forward and will not be retrospective or apply to any existing transactions between you and us at the date the changes are made. To the best of our knowledge, any descriptions, specifications and prices of such products are accurate, complete and current. However, some products may not be available for delivery to New Zealand. Our delivery to you of an email confirmation following your placement of an order does not constitute our acceptance of such order, and we reserve the right to reject such order or limit the quantity of products under such order by further notice to you prior to delivery of the products.
2. TRADEMARKS AND COPYRIGHTS
New Balance, the New Balance logo, the flying NB logo, N (design), newbalance.com, the newbalance.com logo, and other New Balance trademarks and logos are registered and unregistered trademarks and service marks of New Balance or its licensors (the "New Balance Trademarks"), and the trade dress of New Balance's products is owned by New Balance. All other trademarks on the Service are the property of the respective trademark owners (the "Third-Party Trademarks", and collectively with the New Balance Trademarks, the "Trademarks"). Unauthorized use of the Trademarks is prohibited by law. Nothing on this Service or in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on this Service without the prior written consent of New Balance specific for each such use. The Trademarks may not be used to disparage New Balance or the applicable third party, New Balance's or third party's products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any website is prohibited without New Balance's prior written consent. All goodwill generated from the use of any New Balance Trademark shall inure to New Balance's website. All designs, Web pages and source code comprising the Service are copyrighted or licensed by New Balance. All other rights in the Trademarks are absolutely reserved.
The following list is merely a representative sample of the Third Party Trademarks that may be in use at any given time on our Service. The use and specifics of these Third Party Marks can and will change without notice, and thus these Third Party Trademarks may not be currently in use on our Service: 3M® is a registered trademark of the 3M Company; Dri-Lex® is a registered trademark of Faytex Corporation; ETC® is a registered trademark of Sheehan Sales Associates; GORE-TEX® and XCR® are registered trademarks of W.L. Gore & Associates, Inc.; Lycra® and Tactel® are registered trademarks of Invista; Ortholite® is a registered trademark of O2 Partners LLC; Pebax® is a registered trademark of ARKEMA; Plastazote® is a registered trademark of Zotefoams, PLC; Poliyou® is a registered trademark of Kun Chang Enterprise Co., Ltd and Jones & Vining; Polartec® is a registered trademark of Malden Mills Industries Inc.; Scotchgard™ is a trademark of 3M Company; Vibram® is a registered trademark of Vibram S.P.A.; and X-Sole™ is a trademark of Hickory Brands, Inc.
3. RESTRICTIONS ON USE
All content and material on the Service, such as text, graphics, video, audiovisual works, logos, photographs, icons, images, audio clips and software, are the property of New Balance or its licensors and are protected by United States and international copyright laws. The compilation of all content and material on the Service is the exclusive property of New Balance and protected by U.S. and international copyright laws. Notwithstanding the foregoing, New Balance is not responsible for Content (as defined below) posted, submitted or transmitted by Users of the Service. Content and material from the Service and any other website owned, operated, licensed, or controlled by New Balance may not be copied, except by a User solely for his or her personal use, and such content and material may not be distributed, republished, uploaded, posted, or transmitted in any way, without the prior written consent of New Balance. Modification or use of the content or material for any other purpose would violate New Balance's and/or its licensors' intellectual property rights. The content and material on the Service is provided for lawful purposes only. In the event you download software from the Service, the software, including any files, images, video or other audiovisual works incorporated in or generated by the software, and data accompanying the software (collectively, the "Software") are licensed non-exclusively to you by New Balance and/or its licensors. New Balance does not transfer title to the Software to you. You may not redistribute, sell, decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form. The Software is further subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of United States export laws. Downloading or using the Software is at your sole risk.
Any other intellectual property embodied in the Service or New Balance products, including without limitation patents, issued or pending, are the sole property of New Balance and/or its licensors.
Your access to and use of certain components of the Service as a Member is subject to verification of your authority to so access and use such components of the Service. You shall hold and secure any username and password that provides you access to the Service or any particular component thereof as strictly confidential, and you shall not allow any other person access to or use of such username and password. You are responsible for any and all activity related to the Service accessed or used via your account. You shall immediately notify New Balance of any unauthorized use of your username and password by sending an email to firstname.lastname@example.org.
Use of and Membership in the Service is void where prohibited. By using the Service as a Member, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 13 years of age or older; and (d) your use of the Service does not violate any applicable law or regulation. Your Membership may be terminated without warning, if we believe that you are under 13 years of age. You are solely responsible for your interactions with other Members. New Balance reserves the right, but has no obligation, to monitor disputes between you and other Members.
4. POLICY CONCERNING CLAIMS OF INFRINGEMENT
It is the policy of New Balance to respond expeditiously upon receiving notice of claimed intellectual property infringement on the Service. New Balance will promptly process and investigate notices of alleged infringement and will take appropriate actions under the United States Digital Millennium Copyright Act, where applicable, and other applicable intellectual property laws with respect to any alleged, actual or threatened infringement. All notices as to matters of copyright infringement should be sent to our designated agent at the following address:
New Balance Athletic Shoe, Inc.
20 Guest Street
Boston, MA 02135-2088
Notices as to matters of copyright infringement should contain the following information:
a. A physical or electronic signature of a person authorized to act on behalf of the copyright owner who is allegedly infringed.
b. Identification of the copyrighted work claimed to have been infringed.
c. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit New Balance to locate the material.
d. The address, telephone number or email address of the complaining party.
e. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
f. A statement, under penalty of perjury, that the information in the notification is accurate, and that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
New Balance reserves the right to (i) remove any material which it believes may violate the copyright or other rights of any third party and/or (ii) limit access to or from the Service for any user whom New Balance believes is violating any such rights of others.
5. SUBMISSIONS AND COMMUNICATIONS
You agree that you will not upload or transmit any remarks, suggestions, messages (including without limitation to other Members) ideas, photographs, graphics, information, data, text, files, links, software, or other materials ("Content") that: (i) infringe any patent, trademark, trade secret, copyright or other proprietary rights of any party, (ii) are offensive or promote racism, bigotry, hatred or physical harm of any kind against any group or individual, (iii) harass or advocate harassment of another person, (iv) exploit people in a sexual or violent manner, (v) contain nudity, violence, or offensive subject matter or contain a link to an adult website, (vi) solicit personal information from anyone under 18, (vii) provide any telephone numbers, street addresses, last names, URLs or email addresses, (viii) promote information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous, (ix) promote any illegal or unauthorized copy of another person's copyrighted work, (x) involve the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming", (xi) contain restricted or password only access pages or hidden pages or images, (xii) further or promote any criminal activity or enterprise or provide instructional information about illegal activities, (xiii) solicit passwords or personally identifiable information for commercial or unlawful purposes from other Users, (xiv) involve commercial activities and/or sales without New Balance's prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes, (xv) imply that New Balance endorses any of your statements or positions, (xvi) impose an unreasonable burden on the Service's server, or (xvii) include a photograph of another person that you have posted without that person's consent.
You acknowledge that you are responsible for whatever Content you submit, and you, not New Balance, shall have full responsibility for the Content, including its legality, reliability, appropriateness, originality, and non-interference with third-party rights.
New Balance shall have the right to refuse to post or transmit all or any portion of any Content. By way of example and not in limitation of anything else in this Agreement, New Balance shall also have the right, but not the responsibility, to refuse, remove or edit any Content (in whole or in part).
The Service may link to other websites which are not maintained by New Balance and which are owned and operated by third parties. You acknowledge that New Balance is not responsible for the operation of, or content located on or through, any third-party websites. The inclusion of a link to such website does not imply endorsement by New Balance and/or the Service. Viewing of any website linked to the Service is at your own risk. You may not link to any of the websites in the Service other than www.newbalance.co.nz from another site without New Balance's written consent. You may not display any of the websites in the Service, or any of the material on such websites, in frames on or within any other website without New Balance's written consent.
You hereby agree to indemnify, defend and hold harmless New Balance and its subsidiaries, divisions and affiliates and each of their officers, directors, representatives, agents and employees (collectively, the "Indemnitees") from and against any and all liability, damages and costs (including, without limitation, legal costs on a solicitor-client basis) incurred by the Indemnitees in connection any claim arising out of any Content that you submit or breach or alleged breach of any of your obligations set forth in paragraphs 2 (Trademarks and Copyrights) and 3 (Restrictions on Use) herein. New Balance reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without the written consent of New Balance. You shall cooperate as fully as reasonably required in the defense of any claim.
EXCEPT TO THE EXTENT REQUIRED BY LAW, NEW BALANCE, ITS SUBSIDIARIES, DIVISIONS AND AFFILIATES, THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS (COLLECTIVELY, THE "NEW BALANCE PARTIES") DO NOT WARRANT THAT ANY INFORMATION, CONTENT OR MATERIAL ON THE SERVICE IS ERROR-FREE. THE CONTENT OR MATERIAL ON THE SERVICE MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. EXCEPT TO THE EXTENT REQUIRED BY LAW, THE NEW BALANCE PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE OF, OR THE RESULTS OF THE USE OF, THE SERVICE, WHETHER IN TERMS OF CORRECTNESS, COMPLETENESS, ACCURACY, RELIABILITY, OR OTHERWISE. EXCEPT TO THE EXTENT REQUIRED BY LAW, NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE SHALL CREATE OR DEEMED TO CREATE ANY CONDITION, WARRANTY, GUARANTEE OR REPRESENTATION NOT EXPRESSLY MADE HEREIN.
EXCEPT TO THE EXTENT REQUIRED BY LAW, THE NEW BALANCE PARTIES DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU UNDERSTAND AND AGREE THAT, EXCEPT TO THE EXTENT REQUIRED BY LAW, ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOADING OF SUCH CONTENT. YOU (AND NOT THE NEW BALANCE PARTIES) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
WHERE YOU USE THE SERVICE FOR THE PURPOSES OF A BUSINESS:
- THE CONSUMER GUARANTEES ACT 1993 WILL NOT APPLY;
- SECTION 9 (MISLEADING AND DECEPTIVE CONDUCT) AND SECTION 13 (FALSE OR MISLEADING REPRESENTATIONS), WILL NOT APPLY AND YOU AGREE THAT IT IS FAIR AND REASONABLE THAT THESE PROVISIONS WILL NOT APPLY;
- YOU UNDERSTAND AND AGREE THAT THE ABOVE PROVISIONS ARE FAIR AND REASONABLE.
YOU UNDERSTAND AND AGREE THAT, EXCEPT TO THE EXTENT REQUIRED BY LAW, THE DISCLAIMERS SET FORTH HEREIN APPLY TO ALL CAUSES OF ACTION NOW KNOWN OR WHICH MAY ARISE IN THE FUTURE.
9. LIMITATION OF LIABILITY
THE DISCLAIMERS, LIMITATIONS AND EXCLUSIONS IN THIS CLAUSE ARE MADE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND APPLY TO LIABILITY OF ANY NATURE WHATSOEVER, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE.
SUBJECT TO THE PROVISIONS OF CLAUSE 7 (ABOVE) IN RELATION TO YOU), NEITHER PARTY WILL BE LIABLE FOR ANY DAMAGES OR INJURY, INCLUDING BUT NOT LIMITED TO, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE CONTENT OR MATERIALS ON THE SERVICE EVEN IF THERE IS NEGLIGENCE BY THE OTHER PARTY OR IF AN AUTHORIZED REPRESENTATIVE OF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR BOTH.
THE NEW BALANCE PARTIES WILL NOT BE LIABLE FOR ANY DAMAGES OR INJURY, INCLUDING BUT NOT LIMITED TO, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT MAY RESULT FROM LINKING TO ANY THIRD-PARTY WEBSITE.
IF NOTWITHSTANDING THE LIMITATIONS AND EXCLUSIONS IN THESE TERMS AND CONDITIONS ANY NEW BALANCE PARTY IS HELD LIABLE, THEN TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILTY OF THE NEW BALANCE PARTIES WILL BE LIMITED TO, AT NEW BALANCE'S OPTION, THE RESUPPLY OF THE SERVICE OR THE COST OF THE RESUPPLY OF THE SERVICE.
Either party may terminate any rights granted hereunder at any time by notice to the other party, but without prejudice to any existing transactions between you and us at the date of termination. You may terminate any obligations granted hereunder by destroying: (a) all content and material obtained from the Service, and (b) all related documentation and all copies, printouts, and installations. New Balance may prevent your access to the Service or cancel your Membership immediately without notice if, in its sole judgment, you breach any provision of these Terms and Conditions or for any other reason (or no reason) whatsoever. Sections 1 (PRODUCT PURCHASE), 2 (TRADEMARKS AND COPYRIGHTS), 3 (RESTRICTIONS ON USE), 4 (POLICY CONCERNING CLAIMS OF INFRINGEMENT), 5 (SUBMISSIONS AND COMMUNICATIONS), 6 (LINKS), 7 (INDEMNIFICATION), 8 (DISCLAIMER), 9 (LIMITATION OF LIABILITY), 10 (EXCLUSIONS AND LIMITATIONS), 11 (TERMINATION) and 15 (MISCELLANEOUS) shall survive the termination of this Agreement.
11. IMPORTANT NOTICE FOR AMATEUR ATHLETES
You are responsible for ensuring that your use of or participation in the activities of this website does not affect your eligibility as an amateur athlete. Please check with your amateur athletic association for the rules that apply to you. NEW BALANCE IS NOT RESPONSIBLE OR LIABLE FOR YOUR USE OF THE WEBSITE RESULTING IN YOUR INELIGIBILITY AS AN AMATEUR ATHLETE.
12. NO RESALE
You may use the Service only for your own non-commercial use to participate in the website or to place an order or purchase products. Any other use is prohibited unless agreed to by New Balance in writing.
13. COMPLIANCE WITH APPLICABLE LAWS
We make no claims concerning whether Content may be downloaded, viewed, or be appropriate for use outside of New Zealand. If you access the Service or the Content from outside New Zealand, you do so at your own risk. Whether inside or outside of New Zealand, you are solely responsible for ensuring compliance with the laws of your specific jurisdictions. The United States controls the export of products and information. Your use of the Service may be subject to such export control laws. You expressly agree to comply with such restrictions and not to export or re-export any of the Content to countries or persons prohibited under the export control laws. By downloading the Content, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of the Content.
If any provision of this Agreement is found to be invalid by any court, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement. No waiver shall be effective against either party unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Headings are for convenience only and have no legal import. This Agreement will be governed by the laws of New Zealand. The courts of New Zealand will have non-exclusive jurisdiction and venue for any dispute arising out of or relating to the Service or this Agreement, and each party hereby waives any argument that any such court does not have jurisdiction over that party or such dispute or that the venue is not appropriate or convenient.