Effective Date: August 20, 2024

PLEASE NOTE AND BE ADVISED TO READ THESE TERMS AND CONDITIONS (“TERMS”) CAREFULLY AS THEY AFFECT YOUR LEGAL RIGHTS. BY ACCESSING, BROWSING, CREATING AN ACCOUNT, PURCHASING ANY PRODUCT(S) OR OTHERWISE USING THIS SITE (AS DEFINED BELOW), YOU AGREE TO BE BOUND AND ABIDE BY THESE TERMS. THESE TERMS CONTAIN PROVISIONS THAT GOVERN HOW YOU MAY BRING CLAIMS WITH REGARD TO COBRA. THESE TERMS PROVIDE HOW SUCH CLAIMS MAY BE BROUGHT AND RESOLVED, INCLUDING, EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, ANY CLAIMS THAT AROSE OR WERE RAISED PRIOR TO THE EFFECTIVE DATE OF THESE TERMS. BY ACCESSING AND USING THE SITE, WHETHER OR NOT YOU ARE REGISTERED, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD AND AGREE TO BE BOUND BY ALL OF THESE TERMS AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES AND RAMIFICATIONS CONTAINED HEREIN. IF YOU DO NOT AGREE TO THESE TERMS, YOU SHOULD NOT ACCESS OR USE THIS SITE.

THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION (SECTION 20), INCLUDING CLASS ACTION WAIVER (SECTION 1) THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH COBRA. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION PROVISION AS PROVIDED BELOW.

These Terms govern the access or use of this website, mobile application or other Cobra product or service (collectively the "Website" or “Site”) on any computer, mobile phone, tablet, console or other device (collectively, "Device"). These Terms (together with any and all information and policies referred to herein (collectively, the “Terms”) govern your use of, access to, and purchase of products from the Site and access to and use of any text, data, information, software, graphics, videos, audio, photographs and other materials and programs that we may make available to you through the Site. These Terms and additional terms posted on this Site at each time of use apply to that use, and retroactively to any use or claims that arose or were raised prior to the posting of such Terms, except to the extent prohibited by applicable law. We may change these Terms at any time without notice, effective upon its posting to the Site. Your continued use of the Site shall be considered your acceptance of the revised Terms.

The Site and its contents are designed, operated and administered by Cobra Golf Incorporated (hereinafter “Cobra”, “we”, “us”, “our”).

 

1. CLASS ACTION WAIVER

PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.

You and we agree that, to the fullest extent permitted by applicable law, each party may bring claims against the other only in an individual capacity, and not participate as a plaintiff, claimant, or class member in any class, collective, consolidated, private attorney general, or representative proceeding. This means that you and we may not bring a claim on behalf of a class or group and may not bring a claim on behalf of any other person unless doing so as a parent, guardian, or ward of a minor or in another similar capacity for an individual who cannot otherwise bring their own individual claim. This also means that you and we may not participate in any class, collective, consolidated, private attorney general, or representative proceeding brought by any third party. Notwithstanding the foregoing, you or we may participate in a class-wide settlement. Nothing in these Terms precludes you from bringing issues to the attention of federal, state, or local government agencies and, if the applicable law allows, such agencies may seek relief against us for you.

To the fullest extent permitted by applicable law, you and we waive any right to a jury trial. If this class action waiver is found to be void or unenforceable, the dispute shall be resolved in state or federal court rather than in arbitration. You may elect to opt-out (exclude yourself) from the final, binding arbitration procedures specified in Section 20 of these Terms by sending a written letter as set forth in Section 20 of these Terms.

This section will survive after the Terms and Conditions terminate or your use of the Site ends.

 

2. GOVERNING LAW

By visiting this Site, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the Commonwealth of Massachusetts, without giving effect to any conflict of law provisions, shall govern any proceeding that occurs in arbitration. In the event any claim is found not to be arbitrable, normal choice-of-law rules shall apply to any proceeding brought in state or federal court as set forth in Section 21 of these Terms.

 

3. ACCESS TO THE SITE

It is your responsibility to ensure your equipment (computer, laptop, netbook, tablet or other mobile device) meets all the necessary technical specifications to enable you to access and use the Site and is compatible with the Site. We grant you a personal, limited, nonexclusive, nontransferable license to access the Site and to use the information and services contained here solely for your personal, non-commercial use as described in these Terms.

We may, from time to time, restrict access to certain features, parts or content of the Site, or the entire Site, to users who have registered with us. You must ensure that any registration details you provide are accurate. If you choose, or you are provided with, log-in credentials (such as a username and password or other identifier) as part of our security procedures, you must treat such information as confidential and must not reveal it to anyone else. You are responsible for all activities that occur under your log-in credentials and must notify us immediately of any unauthorized use or other security breach of which you become aware. We reserve the right to disable any log-in credentials, at any time, if in our opinion you have failed to comply with any of the provisions of these Terms.

 

4. ORDERING AND AVAILABILITY

You may purchase Products on the Site only for personal use and not for resale. By placing an order on the Site, you certify that you are purchasing Products for personal use only and not for resale. We reserve the right to refuse orders for any reason without explanation. All orders placed on the Site are subject to acceptance by us. We are not obliged to accept your order and may, at our discretion, decline to accept any order or may cancel any order, whether or not the order has been confirmed, for any or no reason, and without liability to you or anyone else. All orders are subject to email confirmation by us. If your credit card has already been charged for an order that is later cancelled, Cobra will issue you a refund. Please note that the products displayed on the Site may be out-of-stock or discontinued, and availability is not guaranteed. This Site may contain typographical errors or technical inaccuracies.

For more information, visit our FAQs.

 

5. SHIPMENT AND DELIVERY

Your order will be delivered to the delivery address you specify when placing your order.

We reserve the right not to deliver to any country that is prohibited by applicable export laws. Orders cannot be delivered to P.O. Box or similar addresses. Products comprised within the same order cannot be delivered to different addresses. You are responsible for the shipping costs associated with the delivery of the Products you purchase on the Site as specified on your order confirmation.

If you order Product(s) for international delivery, they may be opened and inspected by applicable customs authorities and may be subject to import duties and taxes which are levied when the delivery reaches the specified destination. You will be responsible for payment of any such import duties and taxes. Please note that we do not control these charges. Please contact your local customs office for further information before placing your order. In the event that you return an item, the import duties will be refunded if they were originally included in the purchase price. If they were not included in the purchase price, then you will responsible for reclaiming any duties directly from your local customs office.

Please also note that you must comply with all applicable laws and regulations of the country for which the Product(s) are destined. We will not be liable for any breach by you of any such laws.

You bear all risk of loss and damage to the Product(s) from the time of delivery or collection (as the case may be). Delivery is deemed complete and title to the products passes to you upon acceptance of shipment by a common carrier, provided full payment of all sums due in respect of the Product(s), including any delivery charges, has been received.

For more information, visit our FAQs.

 

6. PRICES AND PAYMENT

Prices are in USD and include applicable sales tax (based on your shipping address), but exclude delivery costs, which will be automatically added (at the cost shown) to the total amount due when you view the items in your shopping cart and have selected your chosen different delivery method.

Prices and delivery costs as quoted on the Site are subject to change from time to time in Cobra’s discretion.

For more information, visit our FAQs. Use of certain payment methods or products may be subject to additional terms, conditions or policies provided by third parties pertaining to those payment methods or products. As set forth in Section 13 of these Terms, Cobra assumes no responsibility or liability for any such additional terms, conditions or policies of third parties pertaining to payment methods or products or any use thereof by you. Any use of third party products is entirely at your own risk.

 

7. PRODUCT INFORMATION

While we have tried to accurately display the colors of Products featured on the Site, the actual colors and others details you see will depend on your monitor and, as such, may not be accurate. This Site may contain typographical errors or technical inaccuracies. We do not warrant that the product descriptions are complete or error-free. The images of the products on the Site are for illustrative purposes only.

Any information on the Site regarding sizing of Products is included as a guide only. If you have questions as to the size of any Product you require, we recommend that you Contact Us prior to placing an order.

 

8. RETURNS

For information regarding returns, including Cobra’s Return Policy, visit Returns.

 

9. PERMITTED USE

You may only use the Site for non-commercial use and only in accordance with these Terms. You may retrieve and display content from the Site on a computer screen, print and copy individual pages and, subject to the following section, store such pages in electronic form. Additional terms may also apply to certain features, parts or content of the Site and, where they apply, will be displayed on-screen or accessible via a link. No part of any content may be reproduced in any form or incorporated into any information system, electronic or mechanical, other than for your personal use (but not for resale or redistribution). You will be solely responsible for all damages and other harm resulting from your use of the Site and the content. Cobra shall not be deemed liable for any use of the Site and the content made by you in violation of any applicable laws and regulations and these Terms.

 

10. PROHIBITED USE

Any use of this Website for an illegal or objectionable purpose is strictly prohibited. You agree that you will not use this Website to engage in any activity that could be deemed illegal, harmful to others, or give rise to civil liability. Such activities include, but are not limited to: (i) activities involving the transmission of unlawful, threatening, harassing, obscene, sexually explicit, pornographic, hateful, profane, libelous, or defamatory information; (ii) activities involving the transmission of junk mail or spamming; (iii) activities involving the promotion or use of viruses; (iv) activities that violate any law, regulation or statute; (v) activities that infringe upon any legally protected property right, etc.; and/or (vi) activities that create links to the Site from any other website, without our prior written consent.

By using this Site, you agree that any and all information transmitted to, by or with the use of this Site cannot and shall not be deemed confidential or proprietary. Internet transmissions are never completely private or secure. You understand that any message or information you send to this Site may be read or intercepted by others. You must only use the Site and anything available from the Site for lawful purposes (complying with all applicable laws and regulations), in a responsible manner, and not in a way that might damage our name or reputation or that of any of our affiliates. You agree not to use any data mining, robots, scraping or similar data gathering methods. Cobra reserves the right to monitor transmissions and investigate any alleged prohibited use of this Website and to disclose any and all information relating to such prohibited use. Cobra, its officers, directors, affiliates, employees, agents, partners, subsidiaries, and/or contractors shall not assume, and expressly disclaim, any and all liability relating to an individual's illegal or prohibited use of this Website. Any violation of this or any other section contained herein may result in termination of service and or any other action Cobra determines appropriate under the circumstances.

 

11. INTELLECTUAL PROPERTY RIGHTS

This Website contains many trademarks, trade names, service marks, copyrights, and/or logos (“Intellectual Property”) of Cobra and may also contain Intellectual Property of Cobra's Affiliates. Such Intellectual Property remains the property of their respective owners. You recognize and acknowledge the ownership of all such Intellectual Property and understand and agree that you do not acquire, through use of this Website or otherwise, any right, title, or interest in or to any Intellectual Property. You agree not to change or delete any ownership notices from materials downloaded or printed from the Website. You agree not to modify, copy, translate, broadcast, perform, display, distribute, frame, reproduce, republish, download, display, post, transmit, exploit or sell any Intellectual Property or content appearing on the Website, nor participate in any activity which modifies, copies, translates, broadcasts, performs, displays, distributes, frames, reproduces, republishes, downloads, displays, posts, transmits, exploits or sells such Intellectual Property. All rights to such Intellectual Property are reserved. Any use of the Intellectual Property without express written authorization is strictly prohibited. Nothing in these Terms shall be interpreted as granting any license of Intellectual Property rights to you.

 

12. COPYRIGHT INFRINGEMENT COMPLAINTS

If you believe any content on the Site infringes your copyright, you may request removal of such content (or access thereto) from this Site or App by contacting us as set forth below and providing the following information:

• Identification of the copyrighted work that you believe to be infringed. Please describe the work and, where possible, include a copy of the work or the location (e.g., URL or page within the App) of an authorized version of the work, together with information regarding any copyright registration you own for the work you believe to be infringed.
• Identification of the material that you believe to be infringing and its location. Please describe the material and provide us with its URL or any other pertinent information that will allow us to locate the material you believe constitutes an infringement.
• Your name, address, telephone number, and e-mail address.
• A statement that you have “a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law”.
• A statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner's behalf.
• A signature or the electronic equivalent from the copyright holder or authorized representative.

Send this information by mail to:

Cobra Golf Incorporated
Attn: Legal Department
1818 Aston Ave.
Carlsbad CA, USA 92008

In an effort to protect the rights of copyright owners, we reserve the right to terminate in appropriate circumstances, users of the Site and account holders who are repeat infringers.

 

13. EXTERNAL LINKS

The Site may, from time to time, include links to external sites, which may include links to third party offers and promotions. We include these for convenience to provide you with access to information, products or services that you may find useful or interesting. The fact that we include links to such external sites does not imply any endorsement of, or association with, their operators or promoters. These third party websites may have their own separate policies and Cobra is not responsible or liable for the content and activities of these third parties. Any use of third party websites is entirely at your own risk. We encourage you to read the privacy policies of each website that you visit, as third party websites may use cookies, collect data or solicit personal information. Cobra, and its officers, directors, affiliates, employees, agents, partners, subsidiaries and/or contractors disclaim any and all responsibility or liability for content contained on all such third party websites and any damages, of any kind, incurred by individuals who visit such websites. The Site may allow you to interact with a wide variety of other digital products and services for activity tracking, social networks, music streaming services and other digital services. If you choose to connect your account with a third-party device or account, your privacy rights on third-party platforms will be governed by their respective policies.

 

14. MOBILE

The Website contains services and features that are available to certain mobile Devices. Your carrier's normal rates and fees apply. Not all mobile services will work with all carriers or Devices. By using Cobra's mobile services, you agree that we may communicate with you by electronic means to your mobile Device and that certain information about your use of these services may be shared with us. If you change or deactivate your mobile phone number, you must promptly update your account information to ensure that we do not send your messages to a different person.

If you use our Site or other features provided by us to track your fitness activity or physical characteristics, we may collect this personal data and store it so that you can review it on the Site or other feature. Your fitness activity data may include data you enter about your activity or data collected by your device during your activity such as location data and movement data. We may use this activity data to calculate further information about your activity so that the calculated information can be provided to you as part of the functionality of the Site.

In many cases, to use particular features within our Site you may need to provide us with additional data or additional consent to use particular data in a certain way. For example, to share content on social media, you may be required to provide your social media account credentials to sign in.

 

15. MOBILE MESSAGE SERVICE TERMS AND CONDITIONS

The Cobra mobile message service (the "SMS Service") is operated by Cobra Golf Incorporated. Your use of the SMS Service constitutes your agreement to these terms and conditions (“SMS Terms”). We may modify or cancel the SMS Service or any of its features without notice. To the extent permitted by applicable law, we may also modify these SMS Terms at any time and your continued use of the SMS Service following the effective date of any such changes shall constitute your acceptance of such changes. By consenting to Cobra’s SMS/text messaging service, you agree to receive recurring SMS/text messages from and on behalf of Cobra through your wireless provider to the mobile number you provided, even if your mobile number is registered on any state or federal Do Not Call list. Text messages may be sent using an automatic telephone dialing system or other technology. SMS Service-related messages may include updates, alerts, and information (e.g., order updates, account alerts, etc.). Promotional messages may include promotions, specials, and other marketing offers (e.g., cart reminders).

You understand that you do not have to sign up for this program in order to make a purchase, and your consent is not a condition of any purchase with Cobra. Your participation in this program is completely voluntary.

We do not charge for the SMS Service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message frequency varies. Message and data rates may apply. Check your mobile plan and contact your wireless provider for details. You are solely responsible for all charges related to SMS/text messages, including charges from your wireless provider.

You may opt-out of the SMS Service at any time. To stop receiving SMS/text messages from Cobra, please reply “STOP”, “END”, “CANCEL” or “QUIT” to the Cobra text message or click the unsubscribe link (where available) in any text message to cancel. You will receive a one-time opt-out confirmation text message. No further messages will be sent to your mobile device, unless initiated by you. If you have subscribed to other Cobra mobile message programs and wish to cancel, except where applicable law requires otherwise, you will need to opt out separately from those programs by following the instructions provided in their respective mobile terms. For SMS Service support or assistance, text “HELP” to the Cobra text message or email customerservice-ca@cobragolf.com.

We may change any short code or telephone number we use to operate the SMS Service at any time and will notify you of these changes. You acknowledge that any messages, including any “STOP” or “HELP” requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages.

The wireless carriers supported by the SMS Service are not liable for delayed or undelivered messages. You agree to provide us with a valid mobile number. If you get a new mobile number, you will need to sign up for the program with your new number.

To the extent permitted by applicable law, you agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through the SMS Service, any errors in such information, and/or any action you may or may not take in reliance on the information or SMS Service.

 

16. PROMOTIONS, SWEEPSTAKES AND PROGRAMS

By entering into or participating in any sweepstakes, you agree to all official rules of the sweepstakes.

Cobra may also provide other programs and make other features available that will be governed by additional terms and conditions.

Your participation in any of these programs will be governed by these Terms, including disclaimers of warranties and damages, limitations of liability, and the exclusive dispute resolution procedures of Section 20, and any additional applicable terms and conditions of the specific programs. In the event of an inconsistency between these Terms and the applicable terms and conditions of a program these Terms shall govern to the extent of the inconsistency.

 

17. WARRANTIES AND DISCLAIMER

COBRA IS NOT RESPONSIBLE OR LIABLE FOR ANY CONTENT POSTED ON THE WEBSITE OR FOR ANY OFFENSIVE, UNLAWFUL OR OBJECTIONABLE CONTENT YOU MAY ENCOUNTER ON OR THROUGH THE WEBSITE. THE WEBSITE, ITS CONTENT, AND THE CONTENT, MATERIALS AND PRODUCTS ON THIS WEBSITE ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COBRA DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Cobra cannot guarantee and do not make any promises regarding any specific results from use of the Website. Cobra does not make any representations or warranties regarding accuracy, completeness, currency, correctness, reliability, integrity, quality or originality of any materials, content or any product, that the Website will be uninterrupted or error-free, that any defects will be corrected, or that this Website or the server that makes the Website available are free of viruses or anything else harmful. You understand and agree that use of the Website is at your own risk, and that you will be solely responsible for your use and any damage to your Device, loss of data or other harm of any kind that may result. Cobra reserves the right to change any and all materials or content and other items used or contained in the Website at any time without notice. You are responsible for your physical activity and will not hold Cobra responsible for any injury or loss related thereto. Some states do not permit limitations or exclusions on warranties, so the above limitations may not apply to you.

 

18. INDEMNIFICATION

To the fullest extent permissible by applicable law, you agree to indemnify, defend and hold harmless Cobra and its officers, directors, employees, agents, distributors, subsidiaries, parents, and affiliates (the “Cobra Parties”) from and against any and all claims, demands, losses, liabilities, costs, or expenses, including, without limitation, reasonable attorney's fees which arise directly or indirectly out of or from (i) your breach of these Terms, including any of the foregoing provisions, representations or warranties, and/or (ii) from your access or use of the Site. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with our defense of such claim. You, for yourself and on behalf of your heirs, estate, insurers, successors and assigns, hereby fully and forever release and discharge the Cobra Parties from any and all claims or causes of action you may have for damages arising directly or indirectly out of or from (i) your breach of these Terms, including any of the foregoing provisions, representations or warranties, and/or (ii) from your access or use of the Site. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY”. This indemnification obligation and release shall survive in the event these Terms are terminated for any reason.

 

19. LIMITATION OF LIABILITY

EXCEPT IN CONNECTION WITH DEATH OR PERSONAL INJURY RESULTING FROM COBRA'S NEGLIGENCE, IN NO EVENT SHALL COBRA BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES RELATING TO OR ARISING FROM THIS WEB SITE WHETHER OR NOT EITHER PARTY HAD OR SHOULD HAVE HAD ANY KNOWLEDGE, ACTUAL OR CONSTRUCTIVE, THAT SUCH DAMAGES MIGHT BE INCURRED. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE WEBSITE. YOUR ONLY REMEDY AGAINST COBRA FOR USE OF THE WEBSITE OR ANY CONTENT IS TO STOP USING THE WEBSITE. HOWEVER, IF COBRA IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH IS IN ANY WAY CONNECTED WITH YOUR USE OF THIS WEBSITE OR ANY CONTENT, COBRAS LIABILITY SHALL NOT EXCEED US $100.00. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

 

20. DISPUTES; BINDING ARBITRATION; NO CLASS RELIEF

To the fullest extent permissible by law, with the exception of disputes pertaining to the Cobra’s intellectual property rights, any dispute of any kind between you and Cobra (“Cobra” or the “Company”) including, without limitation, arising under these Terms; your visit to the Company’s websites, mobile applications, or retail stores; or to any purchase, transaction, or other interaction with the Company (including, without limitation, claims relating to the Company’s advertisements, pricing, and disclosures; email, SMS or other messages sent by the Company; or the Company’s collection, processing, sharing, use or retention of your information) (a “Dispute”) shall be resolved through binding arbitration pursuant to these exclusive dispute resolution procedures, except that either you or the Company may elect to have a Dispute resolved in small claims court or seek action through government agencies.

Opt-out: You may elect to opt-out (exclude yourself) from the final, binding arbitration procedures specified in these Terms by sending a written letter within thirty (30) calendar days of your initial agreement to these Terms to the following address (the “Notice Address”):

Cobra Golf Incorporated
Attn: Legal Department
1818 Aston Ave.
Carlsbad CA, USA 92008

The letter must be signed personally by you or your legal guardian and specify: (1) your first and last name; (2) your mailing address; (3) your email address; and (4) your request to be excluded from the final, binding arbitration procedure specified in this Section. In the event that you opt-out consistent with the procedures set forth above, all other terms of these Terms shall continue to apply.

Your decision to opt out of the arbitration procedures in Section 20 will have no adverse effect on your relationship with us or our provision of goods or services to you.

Pre-Arbitration Dispute Resolution: Whenever a Dispute arises between you and the Company, you and the Company agree to first send a written notice to the other (a “Demand”). You must send the Demand to the Company via certified mail to the Notice Address. The Company must send the Demand to you via certified mail to the most recent address the Company has on file for you (or by email if the Company only has an email address for you on file). A Demand (1) shall seek to resolve the Dispute only on an individual basis; (2) shall state the full basis for the Dispute (including the details about the Dispute sufficient for the recipient to review and respond) and the date that the Dispute arose; (3) shall provide the individual claimant’s full name, phone number, and email address to confirm their identity and to aid communication; and (4) shall be personally signed by the individual claimant or for the Company by its authorized representative (and not only their counsel). Within twenty (20) business days of receipt of a Demand, the recipient may request an individualized video or telephone conference to attempt in good faith to resolve the Dispute which both you and the Company will personally attend (with counsel, if represented). You and the Company agree that you and the Company will not take any legal action, including filing a lawsuit or demanding arbitration, until after the period to request a conference expires or, if a conference is requested, twenty (20) business days after the individualized conference is completed. Compliance with this informal dispute resolution procedure section is mandatory and a condition precedent to initiating any lawsuit or arbitration. This procedure is essential to providing each of us a meaningful opportunity to resolve disputes informally. Any applicable statute of limitations periods relating to the Dispute will be tolled while the parties engage in the process set forth above until final resolution of any arbitration proceeding, unless the party providing the Demand withdraws or abandons the Dispute at any point, or the arbitration proceeding is withdrawn or dismissed. A court of competent jurisdiction may enjoin the filing or prosecution of a lawsuit or arbitration if these requirements have not been met.

Arbitration Procedure: If the Dispute stated in the Demand is not resolved to your or the Company’s satisfaction within the time periods set forth above for Pre-Arbitration Dispute Resolution and you or the Company intend on taking legal action, you and the Company agree that you or the Company shall file a demand for arbitration with the American Arbitration Association (“AAA”) www.adr.org. The arbitration will be conducted by a single arbitrator with AAA under its Consumer Arbitration Rules then in effect, subject to the Mass Arbitration provisions below. You or the Company may choose to have the arbitration based only on written submissions or to attend in-person, by telephone or video conference. The arbitration will be kept confidential except as may lawfully be required.

Payment of all fees will be governed by the AAA rules. Either you or the Company may seek attorneys’ fees and costs in arbitration if the arbitrator determines the claims are frivolous. ANY DISPUTE RESOLUTION PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION unless the Mass Arbitration provisions set forth below are triggered, and then only as set forth in the Mass Arbitration provisions below. NEITHER YOU NOR THE COMPANY MAY ACT AS A PRIVATE ATTORNEY GENERAL OR CLASS REPRESENTATIVE, NOR PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, WITH RESPECT TO ANY DISPUTE OR CLAIM. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT INDIVIDUAL PARTY’S CLAIM AND THE ARBITRATOR MAY NOT AWARD RELIEF FOR OR AGAINST OR ON BEHALF OF ANYONE WHO IS NOT A PARTY.

Mass Arbitration: If, at any time, 25 or more claimants submit demands or seek to file demands for arbitration raising similar Disputes against the Company, and such circumstances meet the definition and criteria of Mass Arbitration (“Mass Arbitration”) set forth in AAA’s Mass Arbitration Supplementary Rules (“AAA’s Mass Arbitration Rules” then in effect, available a www.adr.org), such as where representation of the claimants is the same, consistent or coordinated across the cases, the AAA Mass Arbitration Rules in effect at the time such demand is filed shall apply as modified below. You agree that throughout this process, the parties’ counsel shall meet and confer to discuss modifications to these procedures based on the particular needs of the Mass Arbitration. You acknowledge and agree that by electing to participate in a Mass Arbitration, the adjudication of your Dispute might be delayed. However, the parties agree that the timely submission of a Dispute pursuant to these Mass Arbitration procedures is effective to stay any applicable statute of limitations period related to the Dispute until final resolution of any arbitration proceeding, unless the party providing the Demand withdraws or abandons the Dispute at any point, or the arbitration proceeding is withdrawn or dismissed.

Stage One: Counsel for the claimants and counsel for the Company shall each select 5 claims per side and the AAA Process Arbitrator will randomly select 15 claims (25 claims total) to be filed and to proceed in individual arbitrations as part of a staged process. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. Either party may appeal a decision/award rendered in an individual arbitration pursuant to AAA’s Appellate Arbitration Rules in effect at the time the decision/award is rendered. After this initial set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge and the Company will pay the mediator’s fee. The pendency of any appeal shall not delay this global mediation.

Stage Two: If the remaining claims are not resolved after the global mediation in Stage One, then counsel for the claimants and counsel for the Company shall each select 10 claims per side and the AAA Process Arbitrator will randomly select 30 claims (50 claims total) to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agreed to in writing. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they proceed in arbitration proceedings as part of a staged process. Either party may appeal a decision/award rendered in an individual arbitration pursuant to AAA’s Appellate Arbitration Rules in effect at the time the decision/award is rendered. After this second set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge and the Company will pay the mediator’s fee. The pendency of any appeal shall not delay this global mediation.

If your Claim is not resolved as part of the staged process identified above, either:

Option One: You and the Company may separately or by agreement, opt out of arbitration and elect to have your claim heard in court consistent with these Terms on an individual basis (not a class or consolidated basis). You may opt out of arbitration by sending us your individual, personally signed notice of your intention to opt out by certified mail addressed to the Notice Address. Such an opt-out notice must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. It must include a statement, personally signed by you, that you wish to opt out of arbitration within 30 days after the conclusion of Stage 2 including its mediation. The Company may opt your claim out of arbitration by sending a notice signed by an authorized Company representative of the Company’s intention to opt out to your counsel within 14 days after the expiration of your 30-day opt out period. Counsel for the parties may agree in writing to adjust these deadlines.

OR

Option Two: If neither you nor Company elect to have your claim heard in court consistent with Option One, then you agree that your claim will be batched by the AAA Process Arbitrator into groups of 500 claimants, to be filed and to proceed in separate consolidated arbitrations, subject to any procedural changes the parties agreed to in writing. Each of these consolidated arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Either party may appeal a decision/award rendered in a consolidated arbitration pursuant to AAA’s Appellate Arbitration Rules in effect at the time the decision/award is rendered. Counsel for the parties are encouraged to meet and confer, participate in mediation, and engage with each other and with AAA (including through a Process Arbitrator, as such term is used in the AAA Rules) to explore ways to streamline the adjudication of claims, promote efficiencies, conserve resources, and resolve the remaining claims.

A court of competent jurisdiction shall have the authority to enforce these Mass Arbitration provisions and, if necessary, to enjoin any lawsuit and the mass filing, prosecution, or administration of arbitrations and the assessment of arbitration fees. You and the Company agree that each party values the integrity and efficiency of arbitration and wishes to employ the process for the fair resolution of genuine and sincere disputes between the parties. You and the Company acknowledge and agree to act in good faith to ensure the processes set forth herein are followed. You and the Company further agree that application of these Mass Arbitration procedures have been reasonably designed to result in an efficient and fair adjudication of such cases. If any part of this Mass Arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the AAA rules, then the balance of this Mass Arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein unless the lack of such provision would lead this Mass Arbitration provision to fail of its essential purpose. If the staging process of this Mass Arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the AAA rules, then the remaining claims shall be subject to Option One or Option Two above as selected by you or the Company. If the Mass Arbitration provisions apply to your claim, and a court of competent jurisdiction determines that the Mass Arbitration provisions are not enforceable as to your claim, then your claim will proceed in a court of competent jurisdiction on an individual basis (not a class or consolidated basis).

In the event of an exercise of an opt out of, or any exception to, the binding arbitration as provided above, all such Disputes or litigation shall be exclusively brought in the applicable state or federal courts of the Commonwealth of Massachusetts. You agree and consent to waive all defenses of lack of personal jurisdiction and forum non conveniens (i.e., inconvenient forum) with respect to venue and jurisdiction in the state and federal courts of the Commonwealth of Massachusetts. You consent to exclusive jurisdiction and venue in these courts.

YOU AGREE THAT ANY AND ALL CLAIMS BE BROUGHT BY YOU WITHIN ONE (1) YEAR AFTER THE CLAIM ARISES, EXCEPT TO THE EXTENT A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW.

This Section of these Terms will survive the termination of the relationship with you and Cobra.

 

21. GOVERNING LAW AND JURISDICTION

You agree that this Site, Terms, Privacy Policy and any dispute between you and Cobra shall be governed by, construed, and enforced in all respects by the laws of the Commonwealth of Massachusetts, without regard to choice of law provisions, and not by the 1980 U.N. Convention on contracts for the international sale of goods. Except where prohibited by law, you agree that all disputes, claims and legal proceedings directly or indirectly arising out of or relating to this Website (including but not limited to the purchase of Cobra products) shall be resolved individually, without resort to any form of class action, and exclusively in the state or federal courts located in the Commonwealth of Massachusetts, USA. You consent to waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of the Commonwealth of Massachusetts, USA. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE WITH RESPECT TO THE WEBSITE (INCLUDING BUT NOT LIMITED TO THE PURCHASE OF COBRA PRODUCTS) MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION ARISES.

 

22. FORCE MAJEURE

Notwithstanding any other provision set forth in these Terms, Cobra shall not be liable for any failure or delay in its performance due to any cause beyond Cobra's reasonable control, including, without limitation, any act of war or civil insurrection, national emergencies, pandemics, acts of God, fire, explosion, vandalism, storm, earthquake, flood, embargo, riot, sabotage, industry-wide strikes, lockouts, work stoppages or other labor difficulties, industry-wide supplier failures, unavailability of materials, rights of way or governmental acts; provided, however, that Cobra shall use its commercially reasonable efforts to correct promptly such failure or delay in performance to the extent consistent with then applicable law and regulatory requirements and appropriate in light of then existing circumstances.

 

23. MODIFICATION OF TERMS AND CONDITIONS OR SITE CONTENT

Cobra reserves the right to make changes to the Site at any time, without notice. We may also change, update, add or remove provisions of these Terms from time to time. We will inform you of any modifications to these Terms by posting the modified terms of use on the Site. As soon as they are accepted by you as set forth above, any changes to these Terms or any additional terms posted on the Site shall apply retroactively to any use or claims that arose or were raised prior to the posting of such Terms, except to the extent prohibited by applicable law. By continuing to use the Site after any changes are posted, you are indicating your acceptance of and agreement to those changes. Furthermore, Cobra may add, change, discontinue, remove, or suspend any other content posted on the Site, including features and specifications of products and services described or depicted on the Site, temporarily or permanently, at any time, without notice and without liability.

If you object to any such modifications to the Terms or the Site, your sole recourse shall be to stop using the Site. Continued use of the Site following any such changes to the Terms or the Site indicates you acknowledge and agree to be bound by the modifications.

 

24. RELATIONSHIP

Nothing in these Terms is intended to or shall be construed to constitute or establish an agency, joint venture, partnership, or fiduciary relationship between Cobra and you.

 

25. WAIVER, SEVERABILITY AND ENTIRE AGREEMENT

Cobra's failure to insist upon or enforce strict performance of any of these Terms shall not be considered a waiver of any provision or right. Neither the course of conduct between Cobra and you, nor trade practice, shall modify any of these Terms. Cobra may assign its rights and duties under these Terms to any party at any time without notice to you. If any provision in these Terms is deemed invalid, unlawful, void or unenforceable, then that provision is deemed severable from these Terms and the remaining provisions shall continue to be valid and enforceable. These Terms constitute the full and entire understanding and agreement between Cobra and you pertaining to use of the Website. These Terms remain in effect even after your account is terminated.

 

26. PRIVACY

For information regarding our collection, processing and use of your personal information, visit our Privacy Policy. By using the Site, you agree to receive certain electronic communications from Cobra. You agree that any notice, agreement, disclosure or other communication that Cobra sends you electronically will satisfy any legal communication requirements, including that such communications be in writing.

 

27. CONTACT US

Please submit any questions you have about these Terms or an order you have placed or ordering in general by email to customerservice-ca@cobragolf.com, by telephone: (800) 917-3300, between Mon-Fri 6:00am-4:00pm PST, or write to us at:

Cobra Golf Incorporated
Attn: Legal Department
1818 Aston Ave.
Carlsbad CA, USA 92008

 

28. NOTICE FOR CALIFORNIA USERS

Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210.