PLEASE NOTE THAT THESE TERMS AND CONDITIONS CONTAIN AN ARBITRATION PROVISION THAT REQUIRES ARBITRATION ON AN INDIVIDUAL BASIS, WAIVES YOUR RIGHT TO TRIAL BY JURY, AND WAIVES YOUR RIGHT TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING IN THE EVENT OF DISPUTES WITH COWBOY, AS DESCRIBED IN MORE DETAIL BELOW.
Hyperlinks taking you directly to certain parts of our Terms and Conditions are below:
- Website and Online Services
- Sales and Purchases
- Return Policy and Limited Warranty
- Application Use, Registration, and Accounts
- Liability Disclaimers and Damages Limitations
- User/Product Manual
- Dispute Resolution, Arbitration, and Class Action Waiver
- Choice of Law and Forum Selection
- Referral Program
- Other General Terms
1. WEBSITE AND ONLINE SERVICES
a. Intellectual Property Rights.
The entire contents and design of our Services and products are protected under U.S. and international copyright and other intellectual property laws, and Cowboy reserves all rights and licenses to the content contained in them. Cowboy’s Services and products also display multiple trademarks and service marks that are owned by Cowboy or are the property of other respective holders and are subject to the trademark or license rights of Cowboy or the other respective holders, and all intellectual property rights, including those under licenses, associated with the Services or products are reserved. Except as set out in these Terms and Conditions, the use of any content available on the Services or products is strictly prohibited. You may look at the Services, download information to your computer to read later, or print copies of pages for yourself, your family, or your friends. However, you may not copy the Services, products, or any portion of them for commercial use or distribution, nor may you modify or repost them. You also agree not to display, reproduce, duplicate, copy, sell, resell, exploit, or use in any manner any of the content herein, including any trademark, service mark, logo, written text, html or other code, images, animations, digital photographs, or other content accessible on the Services without Cowboy’s express written permission.
b. User Contents.
You represent that you own the information, proposals, plans, pictures, ratings, reviews, questions, text, software, sound, photographs, graphics, video, messages, posts, tags, or other materials you make available whether online, by email, by postal mail, or otherwise (collectively, “User Contents”). By sharing User Contents on the Services, you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate, and otherwise use in any medium any User Contents that you share with us. By posting User Contents on the Services, you grant us a non-exclusive, transferable, sublicensable, royalty-free, perpetual, worldwide, and irrevocable license to use, modify, translate, reproduce, publish, and distribute your User Contents in connection with Cowboy and any other of our services and of the services of our affiliated companies; you grant each user of the Services a non-exclusive, non-transferable, and royalty-free license to use your User Contents as permitted through the features of the Services and in accordance with these terms. You also represent and warrant that you have all rights necessary for the purpose of this Section. Cowboy may, in its sole discretion, screen, monitor, refuse, or remove any User Content for any reason, but Cowboy has no obligation to do so and is under no circumstances liable for User Content, including but not limited to any errors or omissions in any User Content or any loss or damage as a result of any use of any User Content made available on the Services or products.
c. Restrictions on User Contents.
You agree not to post User Contents with any commercial or professional purposes or that may be unlawful, harmful, abusive, offensive, defamatory, infringing, harassing, invasive of personal privacy, or otherwise inappropriate. We reserve the right to refuse and/or remove any User Contents that we believe, in our sole discretion, violate these terms.
d. Third-Party Links.
Cowboy’s Services may include links to third-party websites, services, or applications that are not affiliated with us. We make no representations about any third-party websites, services, or applications. We are not responsible for reviewing or evaluating third parties’ materials, nor are we responsible for the accuracy of any third party’s content, goods, or services. The privacy practices of linked sites or apps could be different from those of Cowboy. If you access third-party linked sites or apps from our Services, you are solely responsible for the access and use of the third-party linked sites.
2. SALES AND PURCHASES
a. Order and Acceptance.
All orders are offers to buy, subject to these Terms and Conditions, and subject to Cowboy’s acceptance. Cowboy may confirm that we received your order by sending a confirmation email with an order number and details of the items ordered, but this email is not an acceptance of your order nor a confirmation of our offer to sell. Cowboy may for any or no reason refuse to accept or may cancel or limit any order, or order quantity, whether or not Cowboy has sent confirmation that it received your order. Cowboy will only accept and ship orders paid in full or subject to other payment terms acceptable to Cowboy and made by consumers over 18 years old, with a valid email address. An order is accepted only when Cowboy expressly so confirms via email in writing (or when Cowboy ships the product). If Cowboy cancels an order after charging, Cowboy will refund the charged amount.
b. Products and Prices.
All product descriptions, prices, discounts, and offerings are subject to change or discontinuance at any time without notice and in Cowboy’s sole discretion for any reason or no reason. We have made every effort to display our products as accurately as possible. We cannot guarantee that the device on which you view the Services will be accurate and a true reflection of the physical item upon receipt. Posted prices include shipping and handling charges, but do not include taxes. Tax will be added to your merchandise total and itemized in your shopping cart and order confirmation email.
All orders must be paid in full or subject to other payment arrangements acceptable to Cowboy prior to shipment. We accept debit cards, credit cards, and PayPal, and you represent and warrant that any such payment information you provide to us is true and correct and that you are authorized to use such payment method. Other forms of payment, including financing through a third-party service, may be available as described during the checkout process and on individual product pages. If you purchase a product using a financing option, the financing company is solely responsible for determining the necessary qualifications for financing a Cowboy product and the rights and obligations associated with financing a Cowboy product. It is your responsibility to review, analyze, and understand all terms and conditions associated with financing your purchase, and Cowboy is in no way responsible for such any such financing. Shipment of orders is subject to verification of payment information and available funds. Cowboy reserves the right to change available payment and financing options at any time and without notice.
Available shipping options will be displayed on the individual product pages during checkout. At this time, Cowboy does not ship to Alaska or Hawaii. Delivery timeline depends on the configuration of the Cowboy product you purchase, including among other things the model and color of e-bike. As deliveries can potentially be impacted by events beyond Cowboy’s control, arrival dates are good faith estimates and are not guaranteed. Cowboy is not and cannot be held liable for late deliveries.
Title to the purchased Cowboy product passes to you from Cowboy upon delivery to the applicable shipping carrier. You bear the risk of loss associated with the product upon delivery to the applicable shipping carrier.
f. Not for resale.
Cowboy products are sold direct to consumers for end-user customers only and not for resale. Cowboy reserves the right to reject or cancel orders that appear, in our sole judgment, to be placed for resale or by sellers or distributors. Only purchases made through Cowboy Services are authorized, all others are unauthorized and any such purchasers assume all risk.
We work to ensure the accuracy of the information on the Services, but sometimes such information may be inaccurate and change without notice. Cowboy undertakes no obligation to update, amend, or clarify information in or on the Services, including, without limitation, pricing information, product descriptions, delivery times, and product availability, except as required by law.
3. RETURN POLICY AND LIMITED WARRANTY
a. Return and Refund Policy.
If you are unhappy for any reason with your purchase of a Cowboy bike and any custom accessories you purchased with it (kickstand and/or luggage rack), you have the right to return your order without giving any reason and for a full refund without costs for 30 days from receipt of these Cowboy products. To make a return, you can send an email to firstname.lastname@example.org stating your intent to return the product and withdraw from the contract of sale. Your email should include the order date, the date you received the product, your name, and your address. The Cowboy team will be in touch to arrange the logistics and cover the shipping costs. Please hold on to the original packaging during the return period in case you need to send the bike back to us for any reason.
Please also note that this return and full refund offer applies only to the bike and custom accessories you purchase with it (kickstand and/or luggage rack). Returns of third-party accessories including the Kryptonite Lock, Quad Lock Case, or Quad Lock Mount are only accepted if the items are unused, in their original packaging, and in a resellable condition. For these items, Cowboy will still contact you to arrange the logistics and cover any shipping costs.
b. LIMITED WARRANTY.
THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE. WE WARRANT THAT DURING THE WARRANTY PERIOD, THE PRODUCTS YOU PURCHASE FROM US WILL BE FREE FROM DEFECTS IN WORKMANSHIP OR MATERIALS, AS EXPLAINED IN MORE DETAIL IN THIS SECTION BELOW. TO THE EXTENT NOT PROHIBITED BY LAW, THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS LIMITED WARRANTY STATEMENT AND TO THE EXTENT NOT PROHIBITED BY LAW, WE DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. TO THE EXTENT SUCH WARRANTIES CANNOT BE DISCLAIMED, WE LIMIT THE DURATION AND REMEDIES OF ANY IMPLIED WARRANTIES TO THE DURATION OF THIS LIMITED WARRANTY. SOME STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
OUR RESPONSIBILITY FOR PRODUCTS SUBJECT TO THIS WARRANTY IS LIMITED TO REPAIR, REPLACEMENT OR REFUND AS SET FORTH IN THIS WARRANTY STATEMENT. NEITHER ANY PERFORMANCE OR OTHER CONDUCT, NOR ANY ORAL OR WRITTEN INFORMATION, STATEMENT, OR ADVICE PROVIDED BY US OR ANY OF OUR SUPPLIERS, AGENTS, OR EMPLOYEES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OR DURATION OF THIS LIMITED WARRANTY.
(i) Who may use this Warranty?
This limited warranty extends to the original purchaser of products from Cowboy, as well as any subsequent or other owner or transferee of the product. The warranty does not apply to Cowboy’s Services such as the mobile app, website, or online or other services.
(ii) What does this Warranty cover?
During the Warranty Period (as defined below), this limited warranty covers defects in materials and workmanship in products purchased from Cowboy.
(iii) What does this Warranty not cover?
This limited warranty does not cover any damages due to, related to, or arising from: (1) transportation; (2) storage; (3) improper, incorrect, or negligent use, assembly, operation, or installation of the product; (4) failure to follow the product instructions or to perform any preventative maintenance; (5) modifications or transformations of the product; (6) combinations or use with any products, materials, processes, systems or other matter not authorized in writing by Cowboy; (7) unauthorized repair or maintenance; (8) normal wear and tear and defects inherent in the normal useful life or service life of the product; or (9) external causes such as accidents, abuse, exposure to severe weather conditions, or other actions or events beyond our reasonable control. Any alterations, modifications, or other changes made by you to the products after your purchase that affect the safety, operation, or mechanics of the bike or other products void the limited warranty and are at your sole risk.
(iv) What is the period of coverage?
This limited warranty starts on the date you, as the original purchaser from Cowboy, first receive your product and lasts for two years from that date (the “Warranty Period”). During the first six months of the warranty, you do not have to prove that the defect was already present when you bought the product. After that initial six-month period, you do have to establish that the defect was present when you bought the product. Note that the Warranty Period is not extended if we repair or replace a warranted product or re-perform a warranted service. We may change the availability of this limited warranty at our discretion, but any changes will not be retroactive.
(v) What are your remedies under this Warranty?
With respect to any products subject to this limited warranty, during the Warranty Period, we will, in our sole discretion, either repair or replace such products (or the defective part) free of charge or refund the purchase price of such products. We will also pay for shipping and handling fees to return the repaired or replacement product to you.
(vi) How do you obtain Warranty service?
To obtain service under this limited warranty, yo can email us at email@example.com, or contact us within the App during the Warranty Period.
(vii) LIMITATION OF LIABILITY.
THE REMEDIES DESCRIBED ABOVE ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF THIS LIMITED WARRANTY. OUR LIABILITY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY YOU FOR THE DEFECTIVE PRODUCT THAT YOU HAVE PURCHASED FROM COWBOY, NOR WILL WE UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY LOSS OF PRODUCTION, WORK, DATA, USE, BUSINESS, GOODWILL, REPUTATION, REVENUE OR PROFIT, ANY DIMINUTION IN VALUE, COSTS OR REPLACEMENT GOODS OR SERVICES, OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MIGHT NOT APPLY TO YOU.
(viii) What can you do in the case of a dispute with us regarding this Warranty?
The dispute resolution procedures detailed in Section 8 below apply to you if you believe that we have not performed our obligations under this limited warranty or these Terms and Conditions.
c. Battery and Range Disclaimer.
Please note that information regarding the expected speeds and ranges of our bikes and their batteries are estimates, not guarantees. There are many factors that affect actual real-world bike speeds and battery ranges, including but not limited to the battery and motor age, temperatures, tire pressure, pedal power, wind conditions, speeds, rider and cargo weights, and terrain. Under certain conditions, battery ranges and top speeds may be different from and less than the listed estimates.
d. California Residents.
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
4. APPLICATION USE, REGISTRATION, AND ACCOUNTS
a. Cowboy App.
The Cowboy App allows you to activate your personal Cowboy account and use your Cowboy bike. In order to start using your Cowboy bike, you will first need to download the Cowboy Application (the “App”) (available via the App Store and Google Play) and to activate your personal Cowboy account. Download and use of the Cowboy App is free of charge and subject to these Terms and Conditions. You are eligible to use the Cowboy App if you meet the following conditions: you are 18 years old or older and not legally incapacitated; you are the legitimate owner of a Cowboy bike; you have a valid email address; you have a mobile device with internet access and GPS signal; and we have confirmed the activation of your personal Cowboy account.
b. Cowboy Account.
To activate your personal Cowboy account, you must provide us with certain information, including your email address, the reference of your Cowboy bike and your private key (which you will receive upon delivery of your Cowboy bike). Once we have confirmed the activation of your personal Cowboy account, you can start using your Cowboy bike with the App.
c. Use of Your Cowboy Bike and Cowboy App.
After you download the Cowboy App and activate your Cowboy account, you may use your Cowboy bike and the App features. The Cowboy App allows you to: start and stop your Cowboy bike; monitor the battery level of your Cowboy bike; monitor your speed and directions while riding; keep information about your past rides; track the location of your Cowboy bike in case of theft; and contact our bike maintenance and repair service. You are responsible for all of your own costs relating to the use of your Cowboy bike and App, including any costs relating to your mobile device, internet connection, GPS, reloading of the battery, bell, and reflectors.
d. Your Contact Information.
You agree to provide to Cowboy truthful and accurate information about yourself, including your email address, and agree to allow Cowboy to use the supplied information to contact you. You agree to keep your contact information up-to-date so that Cowboy can contact you, including with any information about our products or Services.
e. Account Security.
You are responsible for the confidentiality of your Cowboy account password and for restricting unauthorized users’ access to your Cowboy account while logged into the Services. Cowboy is not responsible for any loss you may incur if someone misuses your password, banking or credit card information, or account information. Cowboy tries to use reasonable security measures to protect against unauthorized access to your account, but Cowboy cannot promise that our measures will prevent a data breach.
f. Not for Children.
Cowboy’s Services and products are intended for adults and are not intended for children under 18 years old. Only individuals 18 years old and older may create a Cowboy account, download the Cowboy App, purchase a Cowboy bike, or interact with the Services in any way. We request that minors under 18 years old not provide personal data to Cowboy.
g. Lawful Use of the App.
You may use the Cowboy App for lawful purposes only. You may not use the App in a way that interrupts, damages, impairs, alters, copies, modifies, reverse-engineers, decompiles, disassembles, or otherwise tampers in any way with technology that forms part of the App, including but not limited to the software and databases. Nor may you use the App in a way that infringes on anyone else’s rights to use the App or restricts anyone else’s enjoyment of the App. You may not introduce anything which may harm or alter the performance of the App or attempt to infiltrate the App’s security measures.
h. Access to the App.
At its sole discretion, Cowboy may withdraw, discontinue, or decline access to the App or your Cowboy account, including if Cowboy believes you have violated any part of these terms.
i. App Updates.
Cowboy may from time to time release upgraded versions of its Services and may automatically provide updates, upgrades, patches, or other modifications to the version of the Cowboy App that you are is using. Although Cowboy will try to provide notice of these updates or upgrades, Cowboy has no obligation to do so, and these modifications may cause disruptions in your use of the App without prior notice.
5. LIABILITY DISCLAIMERS AND DAMAGES LIMITATIONS
a. Compliance with Laws.
You are solely responsible for compliance with any and all applicable laws and regulations governing the purchase or use of a Cowboy bike or any other Cowboy product. These laws and regulations include without limitation rules regarding helmet use, registration of an e-bike, licensure and age restrictions for riding an e-bike, or purchasing insurance for an e-bike. Cowboy is not responsible for advising you regarding the laws or regulations in any jurisdiction regarding the purchase and use of an e-bike or other product. Cowboy is not responsible for and is expressly released from any injury to you or others resulting from, arising out of, or in any way related to your violation of any applicable law or regulation governing the purchase or use of a Cowboy bike or any other Cowboy product.
b. Cowboy Provides the Services “As-Is.”
Cowboy provides “as-is” the Services and any software, information, or any other content available on the Services. Cowboy does not make any express or implied commitment concerning the availability of the Services, including the Cowboy website and App; their compatibility with your equipment; their functionality; their availability at any specific place or at any specific point in time; that errors on them will be corrected; or that information found therein will be accurate. The limited warranty described in Section 4(b) does not apply to the Cowboy Services.
c. Risks Inherent in Use of an E-Bike.
You expressly agree that your use of Cowboy products, including e-bikes, carries certain inherent and significant risks (including without limit property damage, bodily injury, or death to you or others) and you voluntarily assume these risks, both known and unknown, and you release Cowboy from them and will not seek to hold Cowboy responsible for them.
d. Federal Communications Commission (“FCC”) Disclosure.
The Cowboy bike includes 5G and Bluetooth transceivers and is therefore subject to FCC rules. Although the modular transceivers have already been certified by the FCC, we are in the process of securing equipment authorization with the FCC for the integration of these devices into our bike. Delivery of the bike is subject to Cowboy’s successful completion of the FCC equipment authorization process. Cowboy will notify you by email and refund any deposit or other payments you have made on the bike if Cowboy is unable to complete the FCC equipment authorization process. Note that the FCC rules do not address the applicability of other consumer protection, contract, and federal and state rules that may apply to the bike as well.
e. Cowboy Does Not Provide Medical Advice.
You expressly agree and understand that Cowboy does not provide medical advice on the Services and that any information provided is not intended to be and should not be used in place of the advice of physicians or medical professionals. If you have any health-related questions, you should promptly contact your healthcare provider. If you experience an emergency, call your physician or dial 911 immediately.
f. LIMITATIONS OF LIABILITY.
YOU EXPRESSLY AGREE TO RELEASE COWBOY, TO THE FULLEST EXTENT OF THE LAW, FROM ANY AND ALL LIABILITY IN CONNECTION WITH A BREACH OF THIS AGREEMENT AND/OR YOUR USE OF THE SERVICES OR ANY COWBOY PRODUCT. UNDER NO CIRCUMSTANCES WILL COWBOY BE LIABLE FOR ANY LOSS OF PRODUCTION, WORK, DATA, USE, BUSINESS, GOODWILL, REPUTATION, REVENUE, OR PROFIT; ANY DIMINUTION IN VALUE, COSTS OF REPLACEMENT GOODS, OR SERVICES; OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT. THESE LIMITATIONS APPLY REGARDLESS OF (1) WHETHER SUCH DAMAGES WERE FORESEEABLE, (2) WHETHER OR NOT COWBOY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND/OR (3) THE LEGAL OR EQUITABLE THEORY UPON WHICH ANY CLAIM IS BASED. COWBOY’S MAXIMUM AGGREGATE LIABILITY TO YOU UNDER THESE TERMS AND CONDITIONS OR OTHERWISE SHALL BE AT MOST, AND ONLY IN THE AMOUNT PROVEN AND ACCORDING TO PROOF, THE GREATER OF EITHER (A) $100 OR (B) THE AMOUNT PAID BY YOU TO COWBOY.
THE PARTIES AGREE THAT THE EXCLUSION OF REMEDIES AND LIMITATIONS SPECIFIED IN THIS SECTION AND THE REST OF THIS AGREEMENT ARE A REASONABLE ALLOCATION OF RISK AND APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING ANY COWBOY NEGLIGENCE OR GROSS NEGLIGENCE, IF AND AS ALLOWED BY LAW), STRICT LIABILITY OR OTHERWISE, AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. YOU ACKNOWLEDGE AND AGREE THAT COWBOY OFFERED ITS PRODUCTS AND SERVICES TO YOU IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. TO THE EXTENT THE ABOVE LIMITATION OF LIABILITY IS RESTRICTED UNDER THE LAW, THE ABOVE LIMITATION SHALL BE APPLIED TO THE FULLEST EXTENT PERMITTED UNDER SUCH LAW.
g. IMPORTANT NOTE TO NEW JERSEY CONSUMERS.
IF YOU ARE A CONSUMER RESIDING IN NEW JERSEY, THE FOLLOWING PROVISIONS OF THESE TERMS AND CONDITIONS DO NOT APPLY TO YOU (AND DO NOT LIMIT ANY RIGHTS THAT YOU MAY HAVE) TO THE EXTENT THAT THEY ARE UNENFORCEABLE UNDER NEW JERSEY LAW: (A) THE DISCLAIMER OF LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND (FOR EXAMPLE, TO THE EXTENT UNENFORCEABLE UNDER THE NEW JERSEY PUNITIVE DAMAGES ACT, NEW JERSEY PRODUCTS LIABILITY ACT, NEW JERSEY UNIFORM COMMERCIAL CODE, AND NEW JERSEY CONSUMER FRAUD ACT); (B) THE LIMITATION ON LIABILITY FOR LOST PROFITS OR LOSS OR MISUSE OF ANY DATA (FOR EXAMPLE, TO THE EXTENT UNENFORCEABLE UNDER THE NEW JERSEY IDENTITY THEFT PROTECTION ACT AND NEW JERSEY CONSUMER FRAUD ACT); © APPLICATION OF THE LIMITATIONS OF LIABILITY TO THE RECOVERY OF DAMAGES THAT ARISE UNDER CONTRACT AND TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY (FOR EXAMPLE, TO THE EXTENT SUCH DAMAGES ARE RECOVERABLE BY A CONSUMER UNDER NEW JERSEY LAW, INCLUDING, WITHOUT LIMITATION, THE NEW JERSEY PRODUCTS LIABILITY ACT); AND (D) THE GOVERNING LAW PROVISION (FOR EXAMPLE, TO THE EXTENT THAT YOUR RIGHTS AS A CONSUMER RESIDING IN NEW JERSEY ARE REQUIRED TO BE GOVERNED BY NEW JERSEY LAW).
h . Indemnification for Third-Party Claims.
You agree to release, waive, defend, indemnify, and hold Cowboy and its parents, subsidiaries, affiliates, directors, officers, employees, agents, members, partners, suppliers, and licensors harmless and will keep them indemnified from any third-party claim, demand, losses, causes of action, liability, including for Cowboy’s reasonable attorneys’ fees, costs, and expenses, relating to, in connection with, or in any way arising from: (a) your purchase or use of any Cowboy products; (b) your possession of a Cowboy e-bike; © your use of the Services; (d) your posting of any content to the Services; (e) any violation by you of these Terms and Conditions; or (f) your violation of another party’s rights or applicable law. This indemnification obligation applies to any third-party claim or demand, no matter the cause of action, including but not limited to claims for negligence, gross negligence, recklessness, wantonness, or otherwise.
i. Force Majeure.
“Force Majeure Events” include any events beyond Cowboy’s reasonable control such as but not limited to acts of God; flood, fire, earthquake, epidemics, or explosions; war, invasion, hostilities, terrorist threats or acts, riot or other civil unrest; government actions; embargoes or blockades in effect; national or regional emergency; strikes, labor stoppages or slowdowns, or other industrial disturbances; telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; or data breaches or incidents or other malicious acts. Cowboy shall not be liable for any failure or delay in performance for causes beyond Cowboy’s reasonable control, including but not limited to the listed Force Majeure Events, and not caused by Cowboy’s fault or negligence. Cowboy shall notify you within a reasonable time of the Force Majeure Event, stating the period of time the occurrence is expected to continue. Cowboy shall diligently try to minimize the delay caused by the Force Majeure Event and shall resume performance when reasonably practicable.
6. USER/PRODUCT MANUAL
a. Requirement to Read.
You agree to read the Cowboy user guide and product manual applicable to the Cowboy products or Services you purchase or use, including all instructions, warnings, and labels, prior to using the products or Services. These documents are included with your purchase of your Cowboy product and available on the Cowboy website, linked here.
b. Failure to Follow Instructions.
You agree to follow the instructions and warnings in the Cowboy user guide and product manual applicable to the Cowboy products or Services you purchase or use, including all warnings and labels, in using the products or Services. Cowboy is not liable for, and you expressly release Cowboy from, any claims, injury, or damages of any kind arising from your failure to follow these instructions and warnings. Also, any alterations, modifications, or other changes made by you to the products after your purchase that affect the safety, operation, or mechanics of the bike or other products are at your sole risk and are not the responsibility of Cowboy.
7. DISPUTE RESOLUTION, ARBITRATION, AND CLASS ACTION WAIVER
a. Notice and Good Faith Informal Resolution.
Both you and Cowboy agree that each party will notify the other in writing of any dispute arising out of, in connection with, or relating to these Terms and Conditions, your use or purchase of any Cowboy products or Services, our relationship, or any other dispute you might have in any way involving Cowboy before initiating arbitration under this Section 8, so that we can try to resolve the dispute informally and individually, negotiating in good faith. The notice must be specific and individual to you and include your name, street address, telephone number, and email, as well as a brief description of the dispute, the amount of money (if any) at issue, and the specific relief sought. The notice must be signed and include the handwritten signature of, as applicable, either you or a Cowboy employee, depending on which party is providing notice. Notice sent by you to Cowboy will be sent to the following email and street addresses: firstname.lastname@example.org and 45 Pleasant Street Unit 1, Newburyport, 01950, MA. Notice sent by Cowboy to you will be sent to the email and street address that you provided to Cowboy. This notice is a requirement and condition precedent to initiating any formal arbitration proceedings. If and only if we fail to reach an amicable settlement of the dispute after good faith negotiation pursuant to this provision, then you or Cowboy may commence an arbitration proceeding starting 45 calendar days after notice is received with a written demand for arbitration pursuant to Section 8 below.
b. Arbitration Agreement.
We and you acknowledge a desire to resolve fairly and quickly any and all disputes, including existing, currently pending and/or future disputes or claims, between you and us as set forth in this Section. Final, binding, and confidential arbitration before a single, neutral arbitrator will be the exclusive remedy for any “Covered Claim.” A “Covered Claim” is any past, existing, currently pending and/or future claim or dispute of any kind (except a claim or dispute that by law is non-arbitrable) that has arisen or arises between you and Cowboy, and/or their respective past, present, and future parent(s), subsidiaries, affiliates, clients, officers, directors, employees, and/or independent contractors, including but not limited to claims arising from the Services provided under these Terms and Conditions, your purchase or use of any Cowboy products, and any other agreements between you and Cowboy. A “Covered Claim” does not include claims filed in small claims court for disputes or claims within the scope of the small claims’ court jurisdiction or claims for injunctive or other equitable relief to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other confidential or proprietary information or intellectual property rights.
This Section 8 applies to successor entities without the need for a formal assignment by either Cowboy and you. This Section also includes any Covered Claim brought against a third party, including but not limited to any client(s), consultant(s), and/or independent contractors of Cowboy, and this provision can be enforced by any such third party through a motion to compel arbitration as necessary. In the event that there are both arbitrable and non-arbitrable claims covered by this Section, the arbitrable claims must be finally and fully resolved before litigation of any non-arbitrable claims can proceed.
d. Waiver of Right to Jury Trial and Class Claims.
As to any Covered Claim, both Cowboy and you waive to the maximum extent permitted by law the right to jury trial or bench trial, and the right to bring, maintain, or participate in any class, collective or representative proceeding, whether in arbitration or otherwise. Further, all Covered Claims must be brought in the individual capacity of the entity or person asserting the claim, and cannot be maintained on a class, collective, or representative basis, to the full extent permitted by applicable law. The arbitrator does not have the authority to consider, certify, or hear arbitration as a class action, collective action, or any other type of representative action.
e. Arbitration Procedures.
Arbitration will be confidential and conducted with JAMS or another arbitration provider pursuant to the JAMS Comprehensive Arbitration Rules & Procedures (the “Arbitration Rules”) in effect at the time the arbitration is filed, available at the following website: https://www.jamsadr.com/rules-comprehensive-arbitration/, except as expressly set forth herein or where such rules are not in compliance with applicable state or federal law. A copy of the Arbitration Rules is available for review through Cowboy by submitting a request to Cowboy or by contacting JAMS at telephone number (800) 352-5267. For claims asserted by you, you understand and agree that you will pay JAMS’ claimant filing fee under the Arbitration Rules. With respect to such claims, Cowboy will pay the remaining part of the filing fees, JAMS’ administrative fees for such disputes, and the fees and expenses of the arbitrator, but only to the extent required by the Arbitration Rules and applicable law. You will pay your own attorneys’ fees and litigation costs associated with the arbitration, except as required by applicable state or federal law. The arbitrator must be either a former judge or a currently licensed attorney. The parties will maintain the confidential nature of the arbitration proceeding and the award, unless otherwise required by law or judicial decision. The arbitrator, and not any federal, state, local court or government agency, will have exclusive authority to resolve any and all disputes regarding the validity, interpretation, applicability, enforceability or formation of the agreement to arbitrate pursuant to this Section, including but not limited to the arbitrability of any claims, notwithstanding anything to the contrary in the Arbitration Rules. The arbitrator will apply the Federal Rules of Evidence, and will apply the Federal Rules of Civil Procedure regarding discovery. The arbitrator can order the same individual remedies that a judge could in a court of law, including injunctive relief but only in favor of you or Cowboy and only to the extent necessary to provide the relief warranted by your or Cowboy’s individual claim. The arbitrator has the authority to consider motions to dismiss and motions for summary judgment/summary adjudication. Should Cowboy or you refuse or neglect to appear for, or participate in, the arbitration hearing, the arbitrator will have the authority to decide the dispute based upon the evidence presented. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. This Section 8 is governed by and enforceable under the Federal Arbitration Act (“FAA”), this Section 8 will be interpreted under the FAA, and both Cowboy and you agree that they are engaged in interstate commerce as part of the business of the Cowboy’s business. Section 8 can be modified only by a writing both signed by Cowboy and you, stating the intent to revoke or modify this Section 8.
If any provision in this Section 8 is adjudged to be void or otherwise unenforceable by a court of competent jurisdiction, in whole or in part, such adjudication will not affect the validity of the remainder of the agreement to arbitrate. Notwithstanding the foregoing, if a court of competent jurisdiction holds or rules that the provision concerning the waiver of a representative and/or collective action is not enforceable as to one or more claims, only claims that the court finds can be arbitrated on an individual basis will be arbitrable under this Section 8 and any remaining Covered Claims must be pursued in court but only after completion of arbitration on the arbitrable claims.
g. EXPRESS CLASS AND JURY WAIVER.
COWBOY AND YOU KNOWINGLY AND VOLUNTARILY WAIVE FOR ANY COVERED CLAIM THE RIGHT TO CLASS, REPRESENTATIVE, CONSOLIDATED, AND COLLECTIVE PROCEDURES AND THE RIGHT TO TRIAL BY JURY OR JUDGE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. COWBOY AND YOU ACKNOWLEDGE AND AGREE THAT EACH HAS CAREFULLY READ THIS SECTION 8 AND THE TERMS AND CONDITIONS, UNDERSTAND THEM, AND AGREE TO THEM.
8. CHOICE OF LAW AND FORUM SELECTION
a. Choice of Law.
You and Cowboy agree that your access to the Services and these Terms and Conditions, and any dispute between you and Cowboy relating to your use of the Services, these Terms and Conditions, or your order, purchase, or use of a Cowboy product will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of law rules. The Dispute Resolution, Arbitration, and Class Action Waiver Provision in Section 8 above will be governed by the Federal Arbitration Act and not any state law.
b. Forum Selection.
For any dispute not subject to arbitration, you and Cowboy agree to be subject to personal jurisdiction in state and federal courts covering New York, New York and waive any jurisdictional, venue, or inconvenient forum defenses or objections to those courts.
10. REFERRAL PROGRAM
a. Terms and Conditions Apply.
Cowboy offers you and your friends the opportunity to be rewarded for your referrals to buy our products and Services. These Terms and Conditions apply to individuals who are accessing or using the Referral Program (the “Referral Program”) both as a referrer (“Advocate”) and a friend (“Friend”) referred to our products and Services. If you do not agree to these Terms and Conditions in their entirety, you are not authorized to register as an Advocate or a Friend or participate in the Program in any manner.
b. Program Basics.
Owners of new Cowboy 3 or Cowboy 4 bikes, may send referral links through the Cowboy App to Friends who are interested in purchasing a new Cowboy 4 bike. Certified refurbished Cowboy Circular bikes are not available for purchase or referrals through the Referral Program. Friends will receive notification from Cowboy containing a referral link. Once a Friend clicks on the referral link and purchases a new Cowboy 4, the Advocate will be awarded with Cowboy branded merchandise, which the Advocate may unlock through the App, and the Friend will receive a $100 voucher, which the Friend will receive via email.
c. Limitations on Referrals.
Rewards must be claimed before the expiration date noted on the Cowboy App or in the email received by the Friend containing the referral link. Cowboy reserves the right to refuse to issue any reward to any Friend or Advocate at any time, and there are limits on the numbers of referrals allowed. We reserve the right to change, modify, or cancel the Referral Program at any time for any reason and without notice. If Cowboy changes, modifies, or discontinues the program, unused rewards will expire. Test Ride independent contractors are not eligible for the Referral Program. Rewards cannot be applied to previous purchases, nor is the reward redeemable for cash.
11. OTHER GENERAL TERMS
a. Modifications and Changes to Terms.
Cowboy can modify these Terms and Conditions at any time, in its sole discretion, without notice to you, and such modifications will be posted here and become effective upon posting online. Cowboy may provide you with notice of changes by email, but it is not required to do so. You should regularly review these Terms and Conditions because you will be bound by any changes made, and continued use of Cowboy’s Services or products constitutes agreement to any modified terms.
If any part of these Terms and Conditions is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other parts of these Terms and Conditions will still be valid and enforceable. You and Cowboy agree that if a provision is declared void, we will replace by agreement the provision that is declared void with a new provision that reflects, as closely as possible, the parties’ purpose and intent in entering this agreement.
c. No Waiver.
Cowboy’s failure to enforce any right or provision of these Terms and Conditions will not constitute a waiver of future enforcement of that right or provision.
d. Entire Agreement.
These Terms and Conditions and the documents integrated herein constitute the entire agreement between you and Cowboy pertaining to the subject matter hereof. Except as otherwise stated herein, these Terms and Conditions supersede all other agreements, communications, or representations, oral or written, between us, past or present.
Cowboy can assign its rights under the Terms and Conditions to any other party at any time without notice to you.
f. No Third-Party Beneficiaries.
Except as otherwise expressly stated herein, no one other than you and Cowboy (or Cowboy’s successors and assigns) will have any right to enforce these terms.
Section titles and headings in the Terms and Conditions have no legal effect and are for convenience only.
Cowboy may provide notice to you under these Terms and Conditions by sending a message to the email address provided by you or by posting information to the Services. Notices sent by email will be effective when email sent, and notices provided by posting will be effective upon posting. You must keep your email address up to date.