Terms of Use
SURVIVAL FROG TERMS OF USE AGREEMENT
Effective Date: April 18, 2024
This Terms of Use Agreement (“Agreement”) is made and entered into by and between Survival Frog, LLC, a limited liability company organized under the laws of the State of Colorado (“Survival Frog”), and you (“You” or “Your”), the user of the Survival Frog website and its associated products (collectively “Website”). This Agreement will be effective when You browse the Website, accept cookies from the Website, and/or select the box to agree to our terms and conditions upon checkout, and Your continued use of the Website or selection of the “I Agree” button constitutes Your manifestation of assent to the terms of this Agreement. If You do not wish to be bound by the terms of this Agreement, You must not select the “I Agree” button or use the Website.
NOTICE OF ARBITRATION. THIS TERMS OF USE AGREEMENT CONTAINS AN ARBITRATION PROVISION AND CLASS ACTION WAIVER THAT APPLIES TO ALL CLAIMS EXCEPT FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT OR THOSE THAT CAN BE BROUGHT IN SMALL CLAIMS COURT. EXCEPT AS OTHERWISE STATED UNDER THE TERMS OF THIS AGREEMENT, YOU AGREE THAT ANY AND ALL DISPUTES BETWEEN YOU AND SURVIVAL FROG WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE YOUR RIGHT TO BRING OR RESOLVE ANY DISPUTE AS, OR PARTICIPATE IN, A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR ARBITRATION.
1. Warranties. You warrant and agree that You have the right and legal capacity to enter into this Agreement and to adhere to its terms and conditions. You warrant that You are a human individual that is eighteen (18) years of age or older and that You are not a bot, script, or other computer or machine. You warrant that You are not prohibited from assenting to this Agreement by any preexisting Agreement. If You are using the Website on behalf of a third party, including but not limited to a business entity, You warrant that You are the authorized representative of that third party and have the authority to bind that third party to the terms of this Agreement.
2. User Account. Survival Frog may provide You with the ability to register a user account (“User Account”), which will provide access to the Website. Your User Account is protected by a username and password. You recognize that You are solely responsible for maintaining the security and confidentiality of Your username and password and that You are responsible for any unauthorized access to Your User Account. In the event Your User Account is accessed without Your authorization, You agree to notify Survival Frog immediately. Survival Frog reserves the right to restrict access to, suspend, disable, or delete Your User Account at any time, in its sole discretion, and without warning.
3. License. Conditional upon Your adherence to the terms of this Agreement, Survival Frog grants You a limited, non-exclusive, non-transferable, worldwide, and revocable license to use the Website in its executable, and non-source code, form and for its customary and intended purposes. The customary and intended purposes of the Website are limited to its use to review information published on the Website, to communication with Survival Frog, or to purchase products through the Website.
4. License Conditions. As a condition of the license granted to You under the terms of this Agreement, and except where otherwise expressly allowed under the terms of this Agreement, You are expressly prohibited from the following:
a. Attempting to access the Website other than through a standard web browser unless You have been permitted to do so by Survival Frog through a separate, written agreement (this restriction does not apply to search engines that comply with Survival Frog’s robots.txt file);
b. Accessing or attempting to access the Website through automated means (this restriction does not apply to search engines that comply with Survival Frog’s robots.txt file);
c. Distributing, framing, emulating, cloning, publishing, displaying, selling, assigning, sublicensing, renting, leasing, loaning, modifying, publicly displaying, publicly performing, creating derivative works of, translating, or adapting the Website;
d. Decompiling, reverse engineering, disassembling, or hacking the Website;
e. Scraping, caching, or utilizing the Website through a proxy;
f. Sharing Your User Account with others or providing unauthorized access to Your User Account;
g. Circumventing the Website’s technology protection measures;
h. Infringing upon the intellectual property or other proprietary rights of Survival Frog;
i. Posting or transmitting content intended to collect personal or personally identifiable information from users of the Website or third parties;
j. Exporting the Website in violation of the export controls or regulations of the laws of Your country or any other country’s laws or regulations;
k. Using the Website to violate any applicable law, statute, regulation, ordinance, or treaty, whether national or international;
l. Using the Website to violate the rights of third parties, including, but not limited to, personal and proprietary rights;
m. Removing or altering any proprietary notices contained within the Website, including, but not limited to, copyright and trademark notices; or
n. Encouraging or assisting any other party to do anything in violation of the terms of this Agreement.
5. Proprietary Rights. You understand and agree that the Website, including, but not limited to, its source code, data, selection and arrangement, executable code, structure, and organization, contains the valuable trade secrets and intellectual property of Survival Frog. Under the terms of this Agreement, You do not acquire any ownership rights to the Website or the data contained therein. You acquire only a limited license to use the Website subject to the terms of this Agreement. All other rights are reserved by Survival Frog.
6. Data Processing and Privacy Policy. In Your use of the Website, Survival Frog may collect personal or personally identifiable information from You. You warrant and agree that, for any personal or personally identifiable information that You transmit to Survival Frog, You have adequate rights to transmit that personal or personally identifiable information to Survival Frog and that doing so does not violate any law, statute, regulation, ordinance, or treaty, whether local, state, national, provincial. Survival Frog has adopted its Privacy Notice to ensure that You understand the type of information that it collects, when it collects it, how it uses it, and Your right of access to it.
7. Trademarks. You acknowledge and agree that any and all trademarks, trade names, design marks, or logos displayed on or through the Website by Survival Frog, including, but not limited to, SURVIVAL FROG, are common law or registered trademarks owned by or licensed to Survival Frog. You are expressly prohibited from using the trademarks of Survival Frog to cause confusion in, to cause mistake in, or to deceive consumers, or from falsely designating the origin of, the source of, or the sponsorship of Your goods or services. You are further prohibited from using the trademarks of Survival Frog in domain names, in keyword advertisements, to trigger keyword advertisements, or in meta tags. All other trademarks, trade names, design marks, or logos are the property of their respective owners.
8. Ordering and Payment. Payment for all orders placed through the Website must be made at the time of ordering. You understand and agree that the prices quoted on the Website are an invitation to deal and that no contract will be formed between You and Survival Frog until Survival Frog accepts Your invitation to deal by performance, specifically, by shipping the ordered goods. Pricing errors will not constitute a contract between You and Survival Frog, and Survival Frog strives to quickly correct any pricing errors on the Website when discovered. You agree that You will pay all applicable taxes or charges imposed by any governmental entity anywhere in the world in connection with Your use of the Website or purchase of goods through the Website. All costs and fees are quoted and payable in United States Dollars and You acknowledge and agree that Survival Frog is not responsible for any foreign transaction fees or other fees charged to You by Your financial institution or by Survival Frog’s payment processor. You agree that You will not initiate any chargebacks to Survival Frog unless otherwise authorized by Survival Frog in writing. You understand and agree that You will be responsible and required to pay for any costs associated with any chargebacks that You have initiated against Survival Frog.
9. Participation in Buyer’s Club. In the event You agree to participate in Survival Frog’s Buyer’s Club (“Buyer’s Club Service”), You understand and agree that You are agreeing that Survival Frog may charge You for a monthly or yearly subscription (“Buyer’s Club Fees”). By selecting a Buyer’s Club Service, You agree to pay Survival Frog for that Buyer’s Club Service. You further agree to provide Survival Frog with a valid payment method, which Survival Frog will store and from which Survival Frog will automatically charge Buyer’s Club Fees as they become due. These Buyer’s Club Fees will be charged on the first day that your Buyer’s Club Service goes into effect and will cover the use of that service for the period indicated. Thereafter, You agree that you will continue to be charged Buyer’s Club Fees on a monthly or yearly basis, whichever You have selected, until the Buyer’s Club Service is cancelled. The amount of these recurring Buyer’s Club Fees will be the then-current Buyer’s Club Fees applicable to the Buyer’s Club Services you selected. You acknowledge that the amount of the recurring charge may increase if the applicable Buyer’s Club Fees increase. Survival Frog will collect and remit sales tax where required by state laws, based on the Buyer’s Club Services and Your primary office location. If you have questions about Survival Frog’s recurring billing, you may contact Survival Frog at support@survivalfrog.com or by toll free telephone number at (800) 773-7737.
10. SMS Terms. In addition, You agree to our Messaging Terms (https://terms.pscr.pt/legal/shop/survivalcenter/terms_of_service) and Messaging Privacy Policy (https://terms.pscr.pt/legal/shop/survivalcenter/privacy_policy).
11. Taxes. You agree that You will pay all taxes assessed by governmental bodies, whether local, state, provincial, national, or international, associated with Your use of the Website or purchase of products through the Website. Survival Frog will report as income all payments received from You to Survival Frog to all proper taxing authorities.
12. Shipping and Returns.
a. Shipping.
i. Survival Frog incorporates its Shipping Policy, located at https://www.survivalfrog.com/pages/shipping-policy, as if fully restated herein.
b. Returns.
i. Survival Frog incorporates its Return Policy, located at https://www.survivalfrog.com/pages/shipping-policy, as if fully restated herein.
13. Third Party Websites. You acknowledge and agree that the Website may contain links to third party websites or content that Survival Frog does not own or control. You are advised to review the terms and conditions of any third-party websites or content linked to through the Website, and You agree that Survival Frog will not be responsible for websites not under the ownership or control of Survival Frog.
14. Proposition 65 Notice.
a.
i. WARNING: Products sold through the Website may contain chemicals known to the State of California to cause cancer, birth defects, or other reproductive harm. You are instructed to wash your hands after handling any products purchased through the Website and to keep all products away from children. For more information on Proposition 65, please visit: https://www.p65warnings.ca.gov/.
15. Term and Termination. The term of this Agreement will begin upon Your first accessing of the Website and will continue until the earlier of the following: (i) Survival Frog terminates Your access to the Website; or (ii) You cease using the Website and terminate Your User Account. Survival Frog reserves the right to terminate the Website or Your access to the Website in its sole and absolute discretion and without prior notice.
16. Consumer Rights Information; California Civil Code Section 1789.3. If this site charges for services, products, content, or information, pricing information will be posted as part of the ordering process for this site. We maintain specific contact information including an e-mail address for notifications of complaints and for inquiries regarding pricing policies in accordance with California Civil Code Section 1789.3. All correspondence should be addressed to our agent for notice at the following address:
Notification of Consumer Rights Complaint or Pricing Inquiry:
Survival Frog LLC
621 Kalamath St. STE 75
Denver, CO 80204
Contact: support@SurvivalFrog.com
Telephone: (800) 773-7737
You may contact us with complaints and inquiries regarding pricing and we will investigate those matters and respond to the inquiries.
The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814.
17. Limited Warranty.
a. Survival Frog provides to the original purchaser of products through the Website (the "Purchaser") a three (3) year Limited Manufacturer’s Warranty that protects the original purchaser only against manufacturing defects or issues in workmanship and/or materials that may have been caused during production. This Limited Manufacturer’s Warranty applies only to defects in material and/or workmanship of the purchased products or their components (collectively, the"Covered Items"). In the event of a manufacturer’s defect, Survival Frog will repair or replace the Covered Items with the same or similar item or refund the Covered Items at its discretion. This Limited Manufacturer’s Warranty does not cover normal wear and tear or accidents. Only original materials and workmanship are covered by this warranty.
b. This Limited Manufacturer’s Warranty shall apply exclusively to the Covered Items and shall not include any other items.
c. All warranty qualifications and disclaimers shall apply during the three (3) year warranty term. This Limited Manufacturer’s Warranty shall be invalid, and shall not apply if, Survival Frog determines, in its sole discretion, that the Covered Items have been damaged because of a modificationor alteration made by a Purchaser or user.
d. This Limited Manufacturer’s Warranty explicitly excludes coverage for rust, corrosion, oxidation, fading, blemishing, or discoloration of the Covered Items or exposure of the Covered Items to surface scratches, abrasives, or chemical cleaners. Additionally, this Limited Manufacturer’s Warranty also explicitly excludes coverage for damage to the Covered Items due to fire damage, including, but not limited to, runaway sparks or floating embers. Survival Frog advises you to review the product manual carefully so that you may properly use the fireproof roof cover.
e. This Limited Manufacturer’s Warranty shall also not apply and shall be invalid if Survival Frog determines, in its sole discretion that, Covered Items or any of their components have been damaged due to negligence, misuse, abuse, attempted repair, improper assembly, or any other reason including, but are not limited to:
i. installation or use other than as described in the product instruction manual;
ii. damage due to prolonged exposure to extreme weather; or
iii. use in a manner inconsistent with the use and instructions as set forth in the product instruction manual.
f. This Limited Manufacturer’s Warranty shall be invalid and no refund or replacement shall be made to a Purchaser prior to the actual receipt, inspection, and confirmation by Survival Frog that the returned Survival Frog has no damage other than a defect in the material and/or workmanship of the Covered Items.
g. Survival Frog reserves the right to refuse to replace the product or refund all or a portion of the purchase price if, Survival Frog determines in its sole discretion, that Purchaser has failed to fully comply with any of the terms and conditions of this Limited Manufacturer’s Warranty.
h. The Purchaser, upon return of the Survival Frog to Survival Frog, pursuant to this Limited Manufacturer’s Warranty, shall include a copy ofthe sales receipt, with original date of purchase. This Limited Manufacturer’s Warranty shall be invalid in the event that Survival Frog determines,in its sole discretion, that the proof of purchase has been altered, erased, or forged. Purchaser shall be solely responsible for theprepayment of all shipping costs associated with the return of the Covered Items to Survival Frog including, export taxes, customsduties, or any other charges, fees, and/or taxes. This Lifetime Manufacturer’s Warranty shall be valid only if Purchaser returns to Survival Frog the Covered Items and all items originally included with the Covered Items at the time of sale.
18. Disclaimer of Warranties and Limitation of Liability.
a. Survival Frog offers products sold through the Website to You conditioned upon Your acceptance without modification of the terms, conditions, and notices contained herein. Your use of products sold through the Website constitutes Your manifestation of assent to the terms, conditions, and notices contained herein.
b. The products sold through the Website have been designed for the specific uses designated within their accompanying instructional materials or as displayed on the Website. These products may not be used for unlawful uses or for uses not expressly stated in their instructional materials.
c. EXCEPT FOR THE LIMITED WARRANTY EXPLICITLY PROVIDED HEREIN, YOU ACKNOWLEDGE AND AGREE THAT THE PRODUCTS PROVIDED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS-IS” BASIS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, AND NON-INFRINGEMENT. WHEREVER PERMITTED BY LAW, YOU ACKNOWLEDGE THAT SURVIVAL FROG WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CLAIMS, DAMAGES, JUDGMENTS, CHARGES, OR FEES ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF THE PRODUCTS PURCHASED THROUGH THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, COSTS AND ATTORNEYS' FEES. YOU ACKNOWLEDGE THAT YOUR USE OF PRODUCTS PURCHASED THROUGH THE WEBSITE IS AT YOUR SOLE RISK AND THAT SURVIVAL FROG’S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID FOR THE PRODUCT IN QUESTION OR $1000, WHICHEVER IS LESS. SOME JURISDICTIONS DO NOT ALLOW AN EXCLUSION OF IMPLIED WARRANTIES. IF YOU ARE LOCATED IN SUCH A JURISDICTION, YOU ARE ADVISED TO SEEK LEGAL ADVICE TO DETERMINE IF THIS EXCLUSION APPLIES TO YOU.
d. SURVIVAL FROG WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY, WHETHER IN WARRANTY, CONTRACT, STRICT LIABILITY, TORT, OR NEGLIGENCE, FOR ANY DAMAGES, CLAIMS, INJURIES, JUDGMENTS, COSTS, OR LIABILITIES OF ANY KIND ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF PRODUCTS PURCHASED THROUGH THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, DAMAGE TO PROPERTY, LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNATIVE DAMAGES, OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE.
e. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE WEBSITE IS PROVIDED ON AN “AS-IS” BASIS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, AND NON-INFRINGEMENT. WHEREVER PERMITTED BY LAW, YOU ACKNOWLEDGE THAT SURVIVAL FROG WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CLAIMS, DAMAGES, JUDGMENTS, CHARGES, OR FEES ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, COSTS, AND ATTORNEYS' FEES, DAMAGES ARISING OUT OF ERRORS OR OMISSIONS, AND DAMAGES ARISING OUT OF THE UNAVAILABILITY OF THE WEBSITE OR DOWNTIME. YOU ACKNOWLEDGE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK AND THAT SURVIVAL FROG’S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID TO USE THE WEBSITE OR $1000, WHICHEVER IS LESS.
f. WHEREVER PERMITTED BY LAW, YOU ACKNOWLEDGE THAT SURVIVAL FROG WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CLAIMS, DAMAGES, JUDGMENTS, CHARGES, OR FEES ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, COSTS, AND ATTORNEYS' FEES, DAMAGES ARISING OUT OF ERRORS OR OMISSIONS, AND DAMAGES ARISING OUT OF THE UNAVAILABILITY OF THE WEBSITE OR DOWNTIME. YOU ACKNOWLEDGE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK AND THAT SURVIVAL FROG’S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID TO USE THE WEBSITE OR $1000, WHICHEVER IS LESS.
19. Indemnification. You agree to indemnify, defend, and hold harmless Survival Frog, its officers, shareholders, directors, employees, subsidiaries, affiliates, and representatives, from any and all losses, including, but not limited to, costs and attorneys' fees, arising out of or related to (i) Your use or misuse of the Website, (ii) Your use or misuse of products purchased from the Website; (iii) Your violation of any term or condition of this Agreement; (iv) Your violation of the rights of third parties, including, but not limited to, intellectual property rights or other personal or proprietary rights; and (v) violation of any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national or international. Your obligation to defend Survival Frog will not provide You with the ability to control Survival Frog's defense, and Survival Frog reserves the right to control its defense, including its choice of counsel and whether to litigate or settle a claim subject to indemnification.
20. Arbitration and Choice of Laws. You agree that any dispute, claim, or controversy arising out of or in relation to this Agreement, or the applicability, breach, termination, validity, enforcement, or interpretation thereof, will be settled by binding individual arbitration. If there is a dispute about whether this arbitration clause can be enforced or applies to the dispute between You and Survival Frog, the Parties agree that the arbitrator will decide that issue. Notwithstanding the foregoing, You and Survival Frog each agree that any claim related to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights will not be subject to this arbitration clause or arbitration. However, all claims related to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or intellectual property rights will be interpreted under Colorado law and will be heard exclusively in the state and federal courts located in or with jurisdiction over Denver, Colorado. You and Survival Frog agree that the Federal Arbitration Act will govern the interpretation and enforcement of this arbitration provision. The arbitration shall be finally resolved by binding arbitration through the platform provided by New Era ADR, Inc. (https://app.neweraadr.com/) (the “New Era Platform”) in accordance with its rules and procedures for “Virtual Expedited Arbitrations” by a professional neutral(s) with substantial experience in resolving commercial disputes (the “Neutral”). The Neutral shall be chosen in accordance with the rules and procedures of the New Era Platform. The parties will bear costs as provided for under this Agreement or, if silent, in accordance with the rules and procedures of the New Era Platform. Judgment on any award rendered by the arbitrator may be entered in any court having jurisdiction and shall be enforceable consistent with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly referred to as the 1958 New York Convention. The arbitrator will be provided with the right to award costs and attorneys’ fees to the prevailing Party. The arbitrator will apply the laws of the State of Colorado and the federal laws of the United States in deciding any controversy or claim pursuant to this arbitration clause. ANY DISPUTE RESOLUTION PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN ARBITRATION OR OTHERWISE, SHALL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, AND YOU AND SURVIVAL FROG EXPRESSLY AGREE THAT CLASS ACTION AND REPRESENTATIVE ACTION PROCEDURES SHALL NOT BE ASSERTED IN NOR APPLY TO ANY ARBITRATION PURSUANT TO THESE TERMS.
21. Force Majeure. Survival Frog will not be responsible for any delay or failure in performance of the Website arising out of any cause beyond Survival Frog’s control, such as acts of God, war, riots, fire, pandemic, terrorist attacks, power outages, severe weather, or other accidents.
22. Survivability. The representations, warranties, duties, and covenants made by You under this Agreement will survive the termination of this Agreement, Your User Account, or the Website, including, but not limited to, Your duty to indemnify and defend Survival Frog.
23. Interpretation. This Agreement will be deemed to have been drafted by both parties, and the terms and conditions of this Agreement will not be interpreted against its drafter.
24. Assignment. You are expressly prohibited from assigning Your rights and duties under this Agreement. Survival Frog reserves the right to assign its rights and duties under this Agreement, including in a sale of Survival Frog, its assets, or the Website.
25. Waiver and Integration. No term or condition of this Agreement or breach of this Agreement will be deemed to have been waived or consented to unless said waiver is writing and signed by the party to be charged. This Agreement is the entire agreement between the parties and supersedes all previous agreements or representations between the parties.