Mallard Bay Outdoors, Inc.
Terms of Service for Users

Last Updated: Nov 30th, 2022
Welcome to Mallard Bay Outdoors! As you have just clicked our Terms of Service, please pause, grab a cup of coffee and carefully read the following pages. It will take you approximately 20 minutes.
These Terms of Service (“Terms”) are a binding legal agreement between you and Mallard Bay Outdoors, Inc., a Delaware Corporation (“Mallard Bay Outdoors”) that govern your use of the Mallard Bay Outdoors website located at https://mallardbay.com/, the Mallard Bay Outdoors mobile app (when and if offered), and other offerings from Mallard Bay Outdoors (collectively, the “Mallard Bay Outdoors Platform”). When used in these Terms, “Mallard Bay Outdoors,” “Company,” “we,” “us,” or “our” refers to Mallard Bay Outdoors.
Our Platform
The Mallard Bay Outdoors Platform offers an online gathering tool that enables people (“Users,” “you,” “your”) with the quickest way for a sportsman to search and book with reputable guides and outfitters. Users who publish and offer services are“Outfitters” and Users who search for, book, or use services are“Sportsmen.” Outfitters offer lodging (“Lodging”), hunting, fishing, blast and cast (“Experience(s)”), guide services (“Guides”), and a variety of other services (collectively,“Outfitter Services,” and each Outfitter Service offering, a“Listing”).
You must register an account to access and use many features of the Mallard Bay Outdoors Platform, and must keep your account information accurate. By creating an account, you acknowledge and agree that you have read these Terms and you agree to be bound by them. As the provider of the Mallard Bay Outdoors Platform, Mallard Bay Outdoors does not own, control, offer or manage any Listings or Outfitter Services. Mallard Bay Outdoors is not a party to the contracts concluded directly between Outfitters and Sportsmen, nor is Mallard Bay Outdoors a real estate broker or insurer.
While we work hard to ensure our Users have great experiences using Mallard Bay Outdoors, we do not and cannot control the conduct of Sportsmen and Outfitters. You acknowledge that Mallard Bay Outdoors has the right, but does not have any obligation, to monitor the use of the Mallard Bay Outdoors Platform and verify information provided by our Users. Users acknowledge and agree that Mallard Bay Outdoors administers its Terms, including decisions about whether and how to apply them to a particular situation, at its sole discretion. Users agree to cooperate with and assist Mallard Bay Outdoors in good faith, and to provide Mallard Bay Outdoors with such information and take such actions as may be reasonably requested by Mallard Bay Outdoors with respect to any investigation undertaken by Mallard Bay Outdoors regarding the use or abuse of the Mallard Bay Outdoors Platform.
We maintain other terms and policies that supplement these Terms like our Privacy Policy, which describes our collection and use of personal data, and our Payments Terms, which govern any payment services provided to Users by the Mallard Bay Outdoors payment entities (“Mallard Bay Outdoors Payments”).
BEFORE USING THE MALLARD BAY OUTDOORS PLATFORM, PLEASE READ CAREFULLY THE FOLLOWING TERMS OF USE. BY REGISTERING FOR, ACCESSING, DOWNLOADING, BROWSING, AND/OR OTHERWISE USING THE MALLARD BAY OUTDOORS PLATFORM, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND ANY FUTURE MODIFICATIONS THEREOF. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE MALLARD BAY OUTDOORS PLATFORM AND DELETE YOUR ACCOUNT.
Sportsmen Terms
1.Searching and Booking on Mallard Bay Outdoors.
1.1 Use of the Platform. The Mallard Bay Outdoors Platform is intended only for access and use by individuals at least eighteen (18) years old. By accessing or using any of the Mallard Bay Outdoors Platform, you warrant and represent that you are at least eighteen (18) years of age and with the full authority, right, and capacity to enter into this agreement and abide by all of the terms and conditions of Terms. If you are not at least eighteen (18) years old, you are prohibited from both the access and usage of the Mallard Bay Outdoors Platform.
1.2 Searching. You can search for Outfitter Services by using criteria like the type of Outfitter Service, travel destination, travel dates, and number of Sportsmen in your booking. You can also use filters to refine your search results. Search results are based on their relevance to your search and other criteria. Relevance considers factors like price, availability, reviews, popularity, previous trips and saved Listings, and more.
1.3 Booking. When you book with an Outfitter, you are agreeing to pay all charges for your booking including the price included on the Listing (the“Listing Price”), applicable fees like Mallard Bay Outdoors's service fee, offline fees, taxes, and any other items identified during checkout (collectively, “Total Price”). You are also agreeing that Mallard Bay Outdoors Payments may charge and collect any security deposit identified during checkout. Additionally, when you book with an Outfitter you are agreeing to abide by any licensing requirements for said Experience, for example obtaining the applicable hunting or fishing license. When you receive the booking confirmation, a contract for Outfitter Services (sometimes called a reservation in these Terms) is formed directly between you and the Outfitter. The reservation cancellation policy and any other rules, standards, policies, or requirements identified in the Listing or during checkout form part of your contract with the Outfitter. Be aware that some Outfitters work with a co-Outfitter or as part of a team to provide their Outfitter Services.
1.4 Lodging Reservations. A Lodging reservation is a limited license to enter, occupy, and use the Lodging. The Outfitter retains the right to re-enter the Lodging during your stay, to the extent: (i) it is reasonably necessary, (ii) permitted by your contract with the Outfitter, and (iii) consistent with applicable law. If you stay past checkout, the Outfitter has the right to make you leave in a manner consistent with applicable law, including by imposing reasonable overstay penalties. You may not exceed the maximum number of allowed Sportsmen.
1.5 Reservations for Experiences and Other Outfitter Services. An Experience or other Outfitter Service reservation entitles you to participate in, attend, or use that Outfitter Service. You are responsible for confirming that you, and anyone you invite, meet minimum age, proficiency, fitness, or other requirements. You are responsible for informing the Outfitter of any medical or physical conditions, or other circumstances that may impact your ability to participate, attend, or use the Outfitter Service. Except where expressly authorized, you may not allow any person to join an Outfitter Service unless they are included as an additional Sportsmen during the booking process.
2.Cancellations, Refunds, and Booking Modifications
2.1 Cancellations, and Refunds. In general, if as a Sportsmen you cancel a reservation, the amount refunded to you is determined by the reservation cancellation policy that applies to that Listing. But, in certain situations in the sole discretion of Mallard Bay Outdoors, our Cancellation Policy may take precedence and determine what amount is refunded to you. If the Outfitter cancels, the amount refunded to you is determined by the reservation cancellation policy that applies to that Listing. If the Listing does not contain a cancellation policy, then our Cancellation Policy set forth below shall apply.
2.2 Cancellation Policy. A cancellation is deemed received if and only if submitted through the Mallard Bay Outdoors Platform cancellation workflow. As used in this Section, the term “rebooking credit” means a credit equal to the Total Price paid by a Sportsmen.
  • If a Sportsmen cancels at least 48 hours prior to the date of the applicable Experience, Lodging, or Guide, the Sportsmen will receive a full refund of the Listing Price. If a Sportsmen cancels at between 48-24 hours prior to the date of the applicable Experience, Lodging, or Guide, the Sportsmen will receive a partial refund equal to half of the Listing Price. If a Sportsmen cancels less than 24 hours prior to the date of the applicable Experience, Lodging, or Guide, the Sportsmen will not be entitled to any refund. Mallard Bay Outdoors reserves the right but not the obligation to offer a rebooking credit in lieu of a refund in any of the circumstances described above, including a less than 24 hours' notice cancellation.
  • If the Outfitter cancels, the Sportsmen will receive a full refund of the Listing Price, or at their option a rebooking credit.
  • In the case of inclement weather or other force majeure which requires cancellation of the Experience, Lodging, or Guide, the Sportsmen will be entitled to a rebooking credit.
2.3 Booking Modifications. Sportsmen and Outfitters are responsible for any booking modifications they agree to make via the Mallard Bay Outdoors Platform or direct Mallard Bay Outdoors customer service to make on their behalf (“Booking Modifications”), and agree to pay any additional amounts, fees, or taxes associated with any Booking Modification.
3.Your Responsibilities and Assumption of Risk.
3.1 Your Responsibilities. You are responsible and liable for your own acts and omissions and are also responsible for the acts and omissions of anyone you invite to join or provide access to any Lodging, Experience, or other Outfitter Service. For example, this means: (i) you are responsible for leaving a Lodging (and related personal property) in the condition it was in when you arrived, and (ii) you must act with integrity, treat others with respect, and comply with applicable laws at all times. If you are booking for an additional Sportsmen who is a minor or if you bring a minor to an Outfitter Service, you must be legally authorized to act on behalf of the minor and you are solely responsible for the supervision of that minor.
3.2 Your Assumption of Risk. You acknowledge that many activities carry inherent risks and agree that, to the maximum extent permitted by applicable law, you assume the entire risk arising out of your access to and use of the Mallard Bay Outdoors Platform and any Mallard Bay Outdoors Materials and/or User Content (as defined in Section 5), including your stay at any Lodging, participation in any Experience, use of any other Outfitter Service, or any other interaction you have with other Users whether in person or online. This means it is your responsibility to investigate an Outfitter Service to determine whether it is suitable for you. For example, Outfitter Services may carry risk of illness, bodily injury, disability, or death, and you freely and willfully assume those risks by choosing to participate in those Outfitter Services.
Outfitter Terms
These Outfitters Terms of Service (“Outfitters Terms”) are a binding legal agreement between you and Mallard Bay Outdoors, Inc., a Delaware Corporation (“Mallard Bay Outdoors”) that govern your role as an Outfitter (“Outfitter”) for Mallard Bay Outdoors, pursuant to the Outfitter Services Agreement between you and Mallard Bay Outdoors (the “Outfitter Agreement”). When used in these Outfitters Terms, “Mallard Bay Outdoors,” “Company,” “we,” “us,” or “our” refers to Mallard Bay Outdoors, “Party” may be used to refer to Finder or Mallard Bay Outdoors individually, and “Parties” is used to refer to both Finder and Mallard Bay Outdoors together. Capitalized terms used but not defined herein shall have the meaning set forth in the Mallard Bay Outdoors Platform Terms of Service located here: https://mallardbay.com/terms (the “Terms of Service”).
1.Term
Term. The term of the Outfitter Agreement will begin on the Order Date (as set forth in the Outfitter Agreement) and continue for a period of twelve (12) months (“Initial Term”), unless earlier terminated as set out herein. After the Initial Term or any subsequent Renewal Term, the Outfitter Agreement will automatically and immediately renew for successive twelve (12) month periods at the applicable fees set out therein (“Renewal Term”), provided that each party will have the right not to renew the Outfitter Agreement by providing notice to the other party of its intent not to renew at least fifteen (15) days prior to the end of the current term.
2.Termination
2.1 By either Party. Each Party will have the right to terminate the Outfitter Agreement immediately upon written notice to the other Party if: (a) a Party becomes insolvent or an insolvency proceeding is begun by or against a Party and not dismissed or stayed within ninety (90) days; (b) any material portion of a Party’s assets is attached, seized, levied on, or comes into possession of a trustee or receiver and the attachment, seizure or levy is not removed within ten (10) days; or (c) a Party fails or neglects to perform, keep, or observe any other material term, provision, condition, covenant or agreement included in these Terms and, to the extent it can be cured, fails to cure such default within ten (10) days after notice by the other Party thereof. Each Party will have the right to terminate the Outfitter Agreement at the conclusion of the Initial Term or any subsequent Renewal Term for any reason by providing fifteen (15) days written notice to the other Party.
2.2 By Mallard Bay Outdoors. Mallard Bay Outdoors has the right, in its sole discretion, to suspend the Mallard Bay Outdoors Services, including the Outfitter Services, or terminate the Outfitter Agreement immediately in the event that: (1) Outfitter fails to pay any undisputed fees by the applicable due date; (2) Outfitter fails or is unable to comply with these Outfitter Terms, the Mallard Bay Outdoors Inc. Terms of Use and/or the Mallard Bay Outdoors Inc. Privacy Policy; or (3) Mallard Bay Outdoors determines, in its sole discretion, that Outfitter becomes ineligible for the Mallard Bay Outdoors Services because of the level of risk associated with Outfitter’s Mallard Bay Outdoors account or for any other reason.
3.Effect of Termination
If Outfitter’s use of the Outfitter Services is terminated, Outfitter agrees to complete all pending Mallard Bay Outdoors transactions and stop using the Outfitter Services to accept new transactions. Paid fees will not be refunded or prorated upon termination. The license described in Section 5(i) (Outfitter License Grant to Mallard Bay Outdoors) will terminate and Mallard Bay Outdoors will remove Outfitter’s logos, trademarks and/or trade names from its materials as soon as reasonably possible. Notwithstanding the foregoing, in the event Outfitter’s use of the Outfitter Services is terminated pursuant to Section 2, Outfitter may continue to use their Mallard Bay Outdoors hosted website (“Website”) for the remainder of the term of the Outfitter Agreement by paying the Website Continuation Fee. The “Website Continuation Fee” means the quotient found by multiplying the remaining months in the term of the Outfitter Agreement by one hundred and fifty ($150) dollars. If Outfitter elects to pay the Website Continuation Fee, Mallard Bay Outdoors will continue to host the Website until the conclusion of the term of the Outfitter Agreement, at which point Outfitter will be responsible for transferring the Website to another hosting platform within thirty (30) days.
4.Outfitter Representations and Warranties
4.1. Outfitter represents and warrants that it has all right, title, ownership interest and marketing rights necessary to provide the Trips (as defined in the Outfitter Agreement) and otherwise perform its obligations to Mallard Bay Outdoors hereunder.
4.2. Outfitter represents and warrants that (i) the purchase of Trips through the Mallard Bay Outdoors website by Mallard Bay Outdoors’s end users (“End Users”) as contemplated by these Outfitter Terms violates no foreign, federal state or local code, law or regulation, including any antitrust laws or trade regulations and (ii) it has not entered into any agreements or commitments that are inconsistent with or in conflict with the rights granted to Mallard Bay Outdoors in these Outfitter Terms.
4.3. Outfitter warrants to Mallard Bay Outdoors that the Trips are safe, will be conducted in a professional, safe and workmanlike manner performed by highly skilled professionals. Outfitter warrants that any products used on trips (“Products”) will be new and/or will be free and clear of all liens and encumbrances and will be free from defects in design, materials and workmanship for a period of one (1) year from the date of purchase or use by an End User. Outfitter warrants that the Trips are merchantable and fit for their intended use, and that the Trips will be performed by Outfitter in conformance with the specifications and documentation provided with the Trips and will conform to all codes, laws or regulations.
4.4. Outfitter hereby represents and warrants that no Product sold to End Users during the term of the Outfitter Agreement, nor the manufacture, marketing, sale and use of the Products or Trips, nor anything in or contemplated by these Outfitter Terms, infringes upon any Intellectual Property Rights of any third party, and that there are no suits or proceedings, pending or threatened, alleging any such infringement.
4.5. Outfitter shall indemnify and hold Mallard Bay Outdoors, its affiliates and their respective officers, directors, employees and agents (collectively, the “Mallard Bay Outdoors Indemnities“) harmless from and against any and all actions, claims, losses, damages, liabilities, awards, costs and expenses (including attorney's fees and costs) which they or any of them incur or become obligated to pay resulting from or arising out of any breach or claimed breach of the warranties regarding Trips or Products contained in these Outfitter Terms. Mallard Bay Outdoors shall inform Outfitter of any such suit or proceeding filed against any of the Mallard Bay Outdoors Indemnities and shall have the right, but not the obligation, to participate in the defense of any such suit or proceeding at Mallard Bay Outdoors's expense.
4.6. Outfitter shall be solely responsible for the design, development, supply, production and performance of the Trips. Outfitter shall indemnify and hold each of the Mallard Bay Outdoors Indemnities harmless from and against any and all actions, claims, losses, damages, liabilities, awards, costs and expenses (including attorney's fees and costs) which they or any of them incur or become obligated to pay resulting from or arising out of any claim asserted against Mallard Bay Outdoors or its End Users with respect to the Trips, any information or materials provided by Outfitter pursuant to these Outfitter Terms, or which otherwise arises out of Outfitter's relationship with Mallard Bay Outdoors, including, but not limited to, any claim for personal or bodily injury or property damage, arising out of or resulting in any way from any defect in Trips, or for claims for violation of any of the warranties contained in these Outfitter Terms. Mallard Bay Outdoors shall inform Outfitter of any such asserted claim against any of the Mallard Bay Outdoors Indemnities and shall have the right, but not the obligation, to participate in the defense of any such suit or proceeding at Mallard B's expense. The obligations of Outfitter under this Section 4 shall survive termination or expiration of the Outfitter Agreement and shall be in addition to the warranty obligations of Outfitter.
4.7. Without in any way limiting Outfitter's indemnification obligation as set forth in these Outfitter Terms, Outfitter shall maintain Commercial General Liability or Comprehensive General Liability Insurance in such amounts as is reasonable and standard for the industry. Either policy form should contain the following coverages: Personal and Advertising Injury, Broad Form Property Damage, Trips and Completed Operations, Contractual Liability, employees as Insured and Fire Legal Liability. Outfitter will provide evidence of the existence of the insurance coverage referred to in this Section 4 by certificates of insurance, which should also provide for at least thirty (30) days’ notice of cancellation, non-renewal or material change of coverage to Mallard Bay Outdoors. If requested, the certificates of insurance shall name Mallard Bay Outdoors and its affiliates as an additional insured for the limited purpose of claims arising pursuant to these Outfitter Terms.
5.Intellectual Property; Confidentiality
5.1 Outfitter License Grant to Mallard Bay Outdoors. During the Term, Outfitter grants to Mallard Bay Outdoors a non-exclusive, transferable, sublicensable, worldwide and royalty-free license to display, reproduce, and use Outfitter’s Intellectual Property (as defined below) in any electronic or printed materials, including Mallard Bay Outdoors websites, to identify Outfitter as a customer of Mallard Bay Outdoors.
5.2 Ownership. Mallard Bay Outdoors is the exclusive owner of and retains all right, title and interest in and to the Mallard Bay Outdoors Services, the Mallard Bay Outdoors network and system, the Mallard Bay Outdoors Intellectual Property and including, without limitation, all Intellectual Property Rights (as defined below) therein and thereto. There are no implied licenses under these Outfitter Terms. Outfitter will not acquire any rights in the foregoing and Outfitter will not copy, transmit, transfer, modify or create derivate works of the foregoing. Outfitter shall not reverse engineer, reverse compile, reverse assemble or otherwise determine or derive source code of the foregoing.
5.3 Confidentiality. Outfitter must not use any Confidential Information (as defined below) disclosed as part of the Outfitter Agreement except for the benefit of Mallard Bay Outdoors. Outfitter must not disclose such Confidential Information to third parties. Outfitter must take reasonable steps to maintain the confidentiality and secrecy of such Confidential Information and to prevent the unauthorized use or disclosure of such Confidential Information. Any breach of these restrictions will cause irreparable harm to Mallard Bay Outdoors and will entitle Mallard Bay Outdoors to injunctive relief in addition to all applicable legal remedies.

a) "Intellectual Property". means all technology and intellectual property, regardless of form, including without limitation: published and unpublished works of authorship, including without limitation audiovisual works, collective works, computer programs, compilations, databases, derivative works, literary works, maskworks, and sound recordings ( “Works of Authorship”); inventions and discoveries, including without limitation articles of manufacture, business methods, compositions of matter, improvements, machines, methods, and processes and new uses for any of the preceding items (“Inventions”); words, names, symbols, devices, designs, and other designations, and combinations of the preceding items, used to identify or distinguish a business, good, group, product, or service or to indicate a form of certification, including without limitation logos, product designs, and product features (“Trademarks”); and information that is not generally known or readily ascertainable through proper means, whether tangible or intangible, including without limitation algorithms, customer lists, ideas, designs, formulas, recipes, know-how, methods, processes, programs, prototypes, systems, and techniques (“Confidential Information”).
b) "Intellectual Property Rights". means all rights in, arising out of, or associated with Intellectual Property in any jurisdiction, including without limitation: rights in, arising out of, or associated with Works of Authorship, including without limitation rights in maskworks and databases and rights granted under the Copyright Act (“Copyrights”); rights in, arising out of, or associated with Inventions, including without limitation rights granted under the Patent Act (“Patent Rights”); rights in, arising out of, or associated with Trademarks, including without limitation rights granted under the Lanham Act (“Trademark Rights”); rights in, arising out of, or associated with Confidential Information, including without limitation rights granted under the Uniform Trade Secrets Act (“Trade Secret Rights”); rights in, arising out of, or associated with a person’s name, voice, signature, photograph, or likeness, including without limitation rights of personality, privacy, and publicity (“Personality Rights”); rights of attribution and integrity and other moral rights of an author (“Moral Rights”); and rights in, arising out of, or associated with domain names (“Domain Name Rights”).
6.Data and Password Security
Outfitter is responsible for the security of all data in its possession or control and is responsible for its compliance with all applicable laws and rules in connection with its collection of personal, financial, or transaction information on its website(s). Outfitter is also responsible for maintaining adequate security and control of its Mallard Bay Outdoors account and Mallard Bay Outdoors credentials, including its password and PIN, and is responsible for ensuring that Outfitter’s employee(s) and/or agent(s) comply with this security requirement and all other terms of these Outfitter Terms.
7.No Warranty
THE MALLARD BAY OUTDOORS SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY REPRESENTATION OF WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT. MALLARD BAY OUTDOORS MAKES NO REPRESENTATION OR WARRANTY THAT THE MALLARD BAY OUTDOORS SERVICES WILL MEET OUTFITTER’S REQUIREMENTS, BE CONTINUOUS, UNINTERRUPTED, OR ERROR- FREE.
8.Indemnification
Outfitter agrees to defend, indemnify and hold Mallard Bay Outdoors, its officers, directors and employees harmless from any claim or demand (including attorneys’ fees) made or incurred by any third party due to or arising out of Outfitter’s breach of these Outfitter Terms, the Outfitter Agreement, Outfitter’s breach of the Mallard Bay Outdoors Terms of Use, Outfitter’s use of the Mallard Bay Outdoors Services, and/or Outfitter’s negligence or misconduct.
9.Limitation of Liability
IN NO EVENT WILL MALLARD BAY OUTDOORS BE LIABLE TO OUTFITTER OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY, DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES INCURRED IN CONNECTION WITH: (i) THESE OUTFITTER TERMS, (ii) THE MALLARD BAY OUTDOORS TERMS OF USE, (iii) OUTFITTER’S USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE MALLARD BAY OUTDOORS SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER MALLARD BAY OUTDOORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MALLARD BAY OUTDOORS’S LIABILITY EXCEED THE FEES MALLARD BAY OUTDOORS HAS RECEIVED FROM OUTFITTER DURING THE PRECEDING 12 MONTHS. THIS LIMITATION OF LIABILITY SECTION WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
10.Assignment
Outfitter may not transfer or assign the Outfitter Agreement or any of its rights or duties thereunder without the prior written consent of Mallard Bay Outdoors. Mallard Bay Outdoors may transfer or assign the Outfitter Agreement or any right or duty thereunder at any time.
11.No Waiver
Mallard Bay Outdoors’s failure or delay to exercise any right under these Outfitter Terms will not operate as a waiver of any such right.
12.Governing Law
The Outfitter Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to choice of law provisions.
13.Notices
All notices to Mallard Bay Outdoors shall be sent by email to logan.meaux@mallardbay.com unless otherwise agreed upon by the Parties. All notices to Outfitter shall be sent by email to the address listed in Outfitter’s account settings unless otherwise agreed upon by the Parties.
14.Taxes
Outfitter is liable for all taxes, duties, levies or tariffs or charges of any kind imposed by any federal, state or local governmental entity with respect to the net income recognized by Outfitter in connection with the Outfitter Agreement and/or the sale of Outfitter’s products and services. The Parties acknowledge that each Party may have reporting requirements to the Internal Revenue Service in connection with payments for goods or services under the Outfitter Agreement.
15.Entire Agreement; Amendment; Severability
These Outfitter Terms and the Outfitter Agreement, along with the Mallard Bay Outdoors Inc. Terms of Use and the Mallard Bay Outdoors Inc. Privacy Policy, constitutes the entire agreement between the Parties, and supersedes all other prior or contemporaneous communications between the Parties (whether written or oral) relating to the subject matter of the Outfitter Agreement. To the extent that these Outfitter Terms conflict with the Mallard Bay Outdoors Inc. Terms of Use and/or the Mallard Bay Outdoors Inc. Privacy Policy, these Outfitter Terms will control. If any provision of these Outfitter Terms is held to be invalid or unenforceable, such provision will be struck and the remaining provisions will remain in full force and effect.
General Terms
1.Eligibility; User Accounts and Fees.
1.1 Eligibility. In order to use the Mallard Bay Outdoors Platform, you must be fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms and to abide by and comply with these Terms. These Terms apply to all categories of Users.
1.2 Users Accounts. You must register an account to access and use many features of the Mallard Bay Outdoors Platform. Registration is only permitted for legal entities, partnerships and natural persons who are 18 years or older. You represent and warrant that you are not a person or entity barred from using the Mallard Bay Outdoors Platform under the laws of the United States, your place of residence, or any other applicable jurisdiction. You must provide accurate, current, and complete information during registration and keep your account information up-to-date. You may not register more than one account or transfer your account to someone else. You are responsible for maintaining the confidentiality and security of your account credentials and may not disclose your credentials to any third party. You are responsible and liable for activities conducted through your account and must immediately notify Mallard Bay Outdoors if you suspect that your credentials have been lost, stolen, or your account is otherwise compromised. If and as permitted by applicable law, we may, but have no obligation to (i) ask you to provide identification or other information, (ii) undertake checks designed to help verify your identity or background, (iii) screen you against third-party databases or other sources and request reports from service providers, and (iv) obtain reports from public records of criminal convictions or sex offender registrations or their local equivalents.
1.3 Fees. Mallard Bay Outdoors may charge fees (and applicable Taxes) to Outfitters and Sportsmen for use of the Mallard Bay Outdoors Platform. Except as otherwise provided on the Mallard Bay Outdoors Platform, service fees are non-refundable. Mallard Bay Outdoors reserves the right to change the service fees at any time, and will provide Users notice of any fee changes before they become effective. Fee changes will not affect bookings made prior to the effective date of the fee change. Fees and other conditions for Users' access to and use of the Mallard Bay Outdoors Platform may be governed by the agreement between a User and Mallard Bay Outdoors (a“Separate Agreement”), which such Separate Agreement would provide additional or supplemental these Terms, to the extent noted therein.
2.Content Policy
2.1 Ownership; Proprietary Rights. Mallard Bay Outdoors is the sole owner of the content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, applications, software, the services, and all other elements of the Mallard Bay Outdoors Platform and any service product, data, application, software development kit or technology that are provided by Mallard Bay Outdoors (“Mallard Bay Outdoors Materials”) or are otherwise owned and operated by Mallard Bay Outdoors. Mallard Bay Outdoors Materials do not include User Content (defined below) or any Non-Mallard Bay Outdoors Content (as defined below). Except as expressly authorized by Mallard Bay Outdoors, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Mallard Bay Outdoors Platform or the Mallard Bay Outdoors Materials. Mallard Bay Outdoors reserves all rights not expressly granted in these Terms. Users shall not acquire any right, title, or interest to the Mallard Bay Outdoors Materials, except for the limited rights set forth in these Terms.
2.2 User Content. Parts of the Mallard Bay Outdoors Platform enable you to provide feedback, text, photos, audio, video, information, and other content (collectively, “User Content”). By providing User Content, in whatever form and through whatever means, you grant Mallard Bay Outdoors a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, sub-licensable and transferable license to copy, modify, prepare derivative works of, distribute, publish and otherwise exploit, that User Content, without limitation (the “License”). If User Content includes personal information, our Privacy Policy describes how we use that personal information. Where Mallard Bay Outdoors pays for the creation of User Content or facilitates its creation, Mallard Bay Outdoors may own that content, in which case supplemental terms or disclosures will say that. You are solely responsible for all User Content that you provide and warrant that you either own it or are authorized to grant Mallard Bay Outdoors the rights described in these Terms. You are responsible and liable if any of your User Content violates or infringes the intellectual property or privacy rights of any third party. User Content must comply with your Representations and Warranties regarding User Content (described below).
2.3 Your Representations and Warranties Regarding User Content. You shall be solely responsible for your own User Content and the consequences of posting or publishing them. In connection with User Content, you affirm, represent, and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize the License described about to use, all patent, trademark, copyright, or other proprietary rights in and to any and all User Content to enable inclusion and use of User Content in the manner contemplated by Mallard Bay Outdoors and these Terms, and to grant the rights and License set forth in this Section, and (ii) your User Content, Mallard Bay Outdoors's use of such User Content pursuant to these Terms, and Mallard Bay Outdoors's exercise of the License set forth in this Section, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (c) violate any applicable law or regulation. Furthermore, in connection with your User Content, you further agree that you will not publish, post, submit, transmit through or otherwise make available on the Mallard Bay Outdoors Platform: (i) any falsehoods or misrepresentations that could damage Mallard Bay or any third party; (ii) any material which is unlawful, defamatory, libelous, slanderous, pornographic, obscene, abusive, profane, vulgar, sexually explicit, threatening, harassing, harmful, hateful, sexually, gender, racially or ethnically offensive or otherwise objectionable, or which encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate; (iii) advertisements or solicitations of business, products, or services; or (iv) any material that would be harmful to minors in any manner. You represent, warrant and agree that you have obtained the prior requisite consent and permission to display and post on the Mallard Bay Outdoors Platform any personally identifiable information submitted by you, including any text, personally identifiable information, personal health information, pictures, photographs, videos, names, or the like. You further represent, warrant and agree that you will comply with all export controls, arms limitations or controls and other provisions of applicable law.
2.4 Reviews. After each Outfitter Service, Sportsmen and Outfitters will have an opportunity to review each other. Your Review must be accurate and may not contain any discriminatory, offensive, defamatory, or other language that violates our Content Policy. Reviews are not verified by Mallard Bay Outdoors for accuracy and may be incorrect or misleading.
2.5 Non-Mallard Bay Outdoors Content Disclaimer. You understand that when using the Mallard Bay Outdoors Platform you will be exposed to User Content and other third party content (together, the “Non-Mallard Bay Outdoors Content”) from a variety of sources, and that you may be exposed to Non-Mallard Bay Outdoors Content that is inaccurate, offensive, indecent, or otherwise objectionable. Mallard Bay Outdoors does not endorse any Non-Mallard Bay Outdoors Content or any opinion, recommendation, or advice expressed therein. IN ANY DEALINGS YOU HAVE WITH OTHER USERS AND OTHER THIRD PARTIES THROUGH THE MALLARD BAY OUTDOORS PLATFORM, YOU ARE SOLELY RESPONSIBLE FOR ALL RISKS ASSOCIATED WITH SUCH DEALINGS. Under no circumstances will Mallard Bay Outdoors be liable in any way for or in connection with the Non-Mallard Bay Outdoors Content, including, but not limited to, for any inaccuracies, errors or omissions in any Non-Mallard Bay Outdoors Content, any intellectual property infringement with regard to any Non-Mallard Bay Outdoors Content, or for any loss or damage of any kind incurred as a result of the use of any Non-Mallard Bay Outdoors Content posted, emailed or otherwise displayed or transmitted through the Mallard Bay Outdoors Platform (or otherwise through any Mallard Bay Outdoors Materials).
2.6 Non-Monitoring of Users and Non-Mallard Bay Outdoors Content. You understand that all Non-Mallard Bay Outdoors Content is the sole responsibility of the User and/or third party who submitted such Non-Mallard Bay Outdoors Content. This means that you, and not Mallard Bay Outdoors, are entirely responsible for all User Content that you upload, post, email, transmit or otherwise make available through the Mallard Bay Outdoors Platform. Mallard Bay Outdoors does not control the Non-Mallard Bay Outdoors Content posted by Users or otherwise made available by other persons and does not have any obligation to monitor such Non-Mallard Bay Outdoors Content for any purpose. If at any time, Mallard Bay Outdoors chooses, in its sole discretion, to monitor the Non-Mallard Bay Outdoors Content, Mallard Bay Outdoors nonetheless assumes no responsibility for the Non-Mallard Bay Outdoors Content, no obligation to modify or remove any inappropriate Non-Mallard Bay Outdoors Content, and no responsibility for the conduct of the User submitting any such Non-Mallard Bay Outdoors Content. You agree that you must evaluate, and bear all risks associated with the use of any User Content or other Non-Mallard Bay Outdoors Content, including any reliance on the accuracy, completeness, usefulness, or legality of such User Content or other Non-Mallard Bay Outdoors Content. Mallard Bay Outdoors cannot and does not guarantee any User’s professed identity, including without limitation the identity or nonprofit, tax exempt status of any organization, individual or entity claiming nonprofit status or tax-exempt treatment. Users of the Mallard Bay Outdoors Platform agree to accept the risks of dealing with people acting under false pretense and that Mallard Bay Outdoors is not responsible for the acts or omissions of Users of any kind. Mallard Bay Outdoors reserves all rights to conduct background checks of its choosing to verify User identity, but it assumes no obligation to do so by reserving this right.
2.7 Removal of Non-Mallard Bay Outdoors Content. Mallard Bay Outdoors and its designees shall have the right (but not the obligation) in their sole discretion to refuse to post or remove any Non-Mallard Bay Outdoors Content that is available on the Mallard Bay Outdoors Platform in whole or in part at any time for any reason or no reason, with or without notice and with no liability of any kind.
3.Prohibited Uses of the Mallard Bay Outdoors Platform.
As a condition of your use of the Mallard Bay Outdoors Platform, you hereby represent and warrant that you will not use the Mallard Bay Outdoors Platform (or any Mallard Bay Outdoors Materials) for any purpose that is unlawful or prohibited (including without limitation, the prohibitions in this Section) by these Terms.
  • Any use by you of any of the Mallard Bay Outdoors Materials and the Mallard Bay Outdoors Platform other than as permitted by these Terms is strictly prohibited. You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute, or exploit, any portion of Mallard Bay Outdoors Materials, use of Mallard Bay Outdoors Materials, access to Mallard Bay Outdoors Materials, or Non-Mallard Bay Outdoors Content obtained through Mallard Bay Outdoors Materials, for any purpose other than for your personal, private, non-commercial purposes.
  • You agree not to use Mallard Bay Outdoors Materials if you do not meet the eligibility requirements described in Section 4
  • You agree not to defame, harass, abuse, threaten, stalk or defraud Users of the Mallard Bay Outdoors Platform, or collect, or attempt to collect, personal information about users or third parties without their consent.
  • You agree not to intentionally interfere with or damage, impair or disable the operation of the Mallard Bay Outdoors Platform or any user's enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code.
  • You agree not to remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Mallard Bay Outdoors Platform, features that prevent or restrict the use or copying of any part of the Mallard Bay Outdoors Platform, or features that enforce limitations on the use of the Mallard Bay Outdoors Platform.
  • You agree not to attempt to gain unauthorized access to Mallard Bay Outdoors Platform, or any part of it, other accounts, computer systems or networks connected to the Mallard Bay Outdoors Platform, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Mallard Bay Outdoors Platform or any activities conducted through the Mallard Bay Outdoors Platform.
  • You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the Mallard Bay Outdoors Platform. You agree neither to modify the Mallard Bay Outdoors Platform in any manner or form, nor to use modified versions of the Mallard Bay Outdoors Platform, including (without limitation) for the purpose of obtaining unauthorized access to the Mallard Bay Outdoors Platform.
  • You agree not to utilize framing techniques to enclose any trademark, logo, copyright or other the service without our express written consent. You agree not to use any meta tags or any other “hidden text” utilizing Mallard Bay Outdoors's name or trademarks without our express written consent.
  • You agree not to deep-link to Mallard Bay Outdoors and will promptly remove any links that Mallard Bay Outdoors finds objectionable in its sole discretion. You agree not to use any Mallard Bay Outdoors logos, graphics, or trademarks as part of the link without our express written consent.
  • You agree not to make unsolicited offers, advertisements, proposals, or send junk mail, commercial communications or spam to other users of the Mallard Bay Outdoors Platform as a User. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.
  • You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, software architecture, database structure or other elements of the Mallard Bay Outdoors Platform or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
  • You agree not to modify, adapt, translate, or create derivative works based upon the Mallard Bay Outdoors Platform or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
  • You agree not to impersonate another person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity.
  • You agree that you will not use any robot, spider, scraper, or other automated means to access the Mallard Bay Outdoors Platform for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Mallard Bay Outdoors Platform.
  • You agree that you will not use the Mallard Bay Outdoors Platform to produce any harmful, infringing or defective product.
  • You agree that Mallard Bay Outdoors shall have the right not to honor any Mallard Bay Outdoors product or hardware piece containing infringing, harmful, defective, obscene, destructive or otherwise dangerous items using the Mallard Bay Outdoors Platform, and Mallard Bay Outdoors shall have the right to refuse to refund any fees associated with the same.
  • You agree that you will not organize or facilitate unauthorized parties or events. You are responsible and liable for any party or event during your reservation.
  • You agree that you will not use the name, logo, branding, or trademarks of Mallard Bay Outdoors or others without permission.
  • You agree that you will not use or register any domain name, social media handle, trade name, trademark, branding, logo, or other source identifier that may be confused with Mallard Bay Outdoors branding.
  • You agree that you will not offer Outfitter Services that violate the laws or agreements that apply to you.
  • You agree that you will not offer or solicit prostitution or participate in or facilitate human trafficking through your use of Outfitter Services.
4.Reporting Violations; Infringement.
4.1 Reporting Violations. If you believe that a User, Listing, User Content or other Non-Mallard Bay Outdoors Content poses an imminent risk of harm to a person or property, you should immediately contact local authorities before contacting Mallard Bay Outdoors. In addition, if you believe that a User, Listing, User Content or other Non-Mallard Bay Outdoors Content has violated our Terms, you should report your concerns to Mallard Bay Outdoors. If you reported an issue to local authorities, Mallard Bay Outdoors may request a copy of that report. Except as required by law, you agree that we are not obligated to take action in response to any report.
4.2 Digital Millennium Copyright Act Compliance. If you are a copyright owner or an agent thereof, and believe that any User Content or other Non-Mallard Bay Outdoors Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on Mallard Bay Outdoors are covered by a single notification, a representative list of such works from Mallard Bay Outdoors;
  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Mallard Bay Outdoors to locate the material;
  • Information reasonably sufficient to permit Mallard Bay Outdoors to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
  • A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
  • A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Mallard Bay Outdoors's designated Copyright Agent to receive notifications of claimed infringement is:
Mallard Bay Outdoors Inc.
Subject: DMCA
email: support@mallardbay.com
5.Termination, Suspension, and other Measures.
5.1 Term. The agreement between you and Mallard Bay Outdoors reflected by these Terms is effective when you access the Mallard Bay Outdoors Platform (for example to create an account) and remains in effect until either you or we terminate the agreement in accordance with these Terms.
5.2 Termination. You may terminate this agreement at any time by deleting your account. Mallard Bay Outdoors may terminate this agreement and your account for any reason by giving you notice via email or using any other contact information you have provided for your account. Mallard Bay Outdoors may also terminate this agreement immediately and without notice and stop providing access to the Mallard Bay Outdoors Platform if you breach these Terms, you violate our Terms, you violate applicable laws, or we reasonably believe termination is necessary to protect Mallard Bay Outdoors, its Users, or third parties. If your account has been inactive for more than two years, we may terminate your account without prior notice.
5.3 Users Violations. If (i) you breach these Terms, (ii) you violate applicable laws, regulations, or third-party rights, or (iii) Mallard Bay Outdoors believes it is reasonably necessary to protect Mallard Bay Outdoors, its Users, or third parties; Mallard Bay Outdoors may, with or without prior notice:
  • suspend or limit your access to or use of the Mallard Bay Outdoors Platform and/or your account;
  • suspend or remove Listings, Reviews, or other User Content;
  • cancel pending or confirmed bookings; or
  • suspend or revoke any special status associated with your account.
For minor violations or where otherwise appropriate as Mallard Bay Outdoors determines in its sole discretion, you will be given notice of any intended measure by Mallard Bay Outdoors and an opportunity to resolve the issue. You may appeal actions taken by us under this Section by contacting customer service. If a reservation is cancelled under this Section, the amount paid to the Outfitter will be reduced by the amount we refund or otherwise provide to the Sportsmen, and by any other costs we incur as a result of the cancellation.
5.4 Legal Mandates. Mallard Bay Outdoors may take any action it determines is reasonably necessary to comply with applicable law, or the order or request of a court, law enforcement, or other administrative agency or governmental body, including the measures described above in Section 8.3.
5.5 Effect of Termination. If you are an Outfitter and terminate your Mallard Bay Outdoors account, any confirmed booking(s) will be automatically cancelled and your Sportsmen will receive a full refund of the Total Price. If you terminate your account as a Sportsmen, any confirmed booking(s) will be automatically cancelled and any refund will depend upon the terms of the reservation’s cancellation policy. When this agreement has been terminated, you are not entitled to a restoration of your account or any of your User Content. If your access to or use of the Mallard Bay Outdoors Platform has been limited, or your Mallard Bay Outdoors account has been suspended, or this agreement has been terminated by us, you may not register a new account or access or use the Mallard Bay Outdoors Platform through an account of another Users.
6.Modification
Mallard Bay Outdoors may modify these Terms at any time. When we make material changes to these Terms, we will post the revised Terms on the Mallard Bay Outdoors Platform and update the “Last Updated” date at the top of these Terms. We will also provide you with notice of any material changes by email before the date they become effective. If you disagree with the revised Terms, you may terminate this agreement immediately as provided in these Terms. If you do not terminate your agreement before the date the revised Terms become effective, your continued access to or use of the Mallard Bay Outdoors Platform will constitute acceptance of the revised Terms.
7.Resolving Damage Claims and Platform Errors
7.1 Damage Claims. If a User provides evidence that another Users damaged their real or personal property (“Damage Claim”), the complaining Users can seek compensation by contacting us, and the other Users will be given an opportunity to respond. If the responding Users agrees to pay, or Mallard Bay Outdoors determines in its sole discretion that they are responsible for the Damage Claim, Mallard Bay Outdoors via Mallard Bay Outdoors Payments can collect any sums required to cover the Damage Claim from the responding Users and/or against any security deposit. You agree that Mallard Bay Outdoors may seek to recover from you under any insurance policies you maintain, and that Mallard Bay Outdoors may also pursue against you any remedies it may have available under applicable law. You agree to cooperate in good faith, provide any information Mallard Bay Outdoors requests, execute documents, and take further reasonable action, in connection with Damage Claims, Users complaints, claims under insurance policies, or other claims related to your provision or use of Outfitter Services.
7.2 Error Reporting and Feedback.You may provide us either directly at support@mallardbay.com or via third party sites and tools with information and feedback concerning errors, suggestions for improvements, ideas, problems, complaints, and other matters related to the Mallard Bay Outdoors Platform (“Feedback”). You acknowledge and agree that: (i) you shall not retain, acquire or assert any intellectual property right or other right, title or interest in or to the Feedback; (ii) Company may have development ideas similar to the Feedback; (iii) Feedback does not contain confidential information or proprietary information from you or any third party; and (iv) Company is not under any obligation of confidentiality with respect to the Feedback. In the event the transfer of the ownership to the Feedback is not possible due to applicable mandatory laws, you grant Company and its affiliates an exclusive, transferable, irrevocable, free-of-charge, sub- licensable, unlimited and perpetual right to use (including copy, modify, create derivative works, publish, distribute and commercialize) Feedback in any manner and for any purpose.
The third-party sites and tools mentioned above include the following:
Sentry
Sentry is open-source error tracking solution provided by Functional Software Inc. More information is available here: https://sentry.io/privacy/
8.Mobile Application
The following terms apply in the event we offer a mobile application.
8.1 Application License. Subject to your compliance with the Terms, Mallard Bay Outdoors grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of Mallard Bay Outdoors's software application for mobile devices (the “Application”) on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes.
8.2 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge that the Terms are between you and Mallard Bay Outdoors and not with the App Store. Mallard Bay Outdoors, not the App Store, is solely responsible for the Mallard Bay Outdoors Materials, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store's terms and policies) when using the Mallard Bay Outdoors Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
9.Disclaimer of Warranties
YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION, THE TERM “WE” AND “US” INCLUDES MALLARD BAY OUTDOORS AND ITS OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, MANAGERS, SHAREHOLDERS, AGENTS, AFFILIATES, AND SUBCONTRACTORS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, REDHIBITION, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH US WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WE PROVIDE THE MALLARD BAY OUTDOORS PLATFORM AND ALL CONTENT, INCLUDING NON-MALLARD BAY OUTDOORS CONTENT, “AS IS” WITHOUT WARRANTY OF ANY KIND AND WE DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED. FOR EXAMPLE: (I) WE DO NOT ENDORSE OR WARRANT THE EXISTENCE, CONDUCT, PERFORMANCE, SAFETY, QUALITY, LEGALITY OR SUITABILITY OF ANY SPORTSMEN, OUTFITTER, OUTFITTER SERVICE, LISTING OR THIRD PARTY; (II) WE DO NOT WARRANT THE PERFORMANCE OR NON-INTERRUPTION OF THE MALLARD BAY OUTDOORS PLATFORM; AND (III) WE DO NOT WARRANT THAT VERIFICATION, IDENTITY OR BACKGROUND CHECKS CONDUCTED ON LISTINGS OR USERS (IF ANY) WILL IDENTIFY PAST MISCONDUCT OR PREVENT FUTURE MISCONDUCT. ANY REFERENCES TO A USER OR LISTING BEING “VERIFIED” (OR SIMILAR LANGUAGE) INDICATE ONLY THAT THE USERS OR LISTING OR MALLARD BAY OUTDOORS HAS COMPLETED A RELEVANT VERIFICATION OR IDENTIFICATION PROCESS AND NOTHING ELSE. THE DISCLAIMERS IN THESE TERMS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. IF YOU HAVE STATUTORY RIGHTS OR WARRANTIES WE CANNOT DISCLAIM, THE DURATION OF ANY SUCH STATUTORILY REQUIRED RIGHTS OR WARRANTIES, WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
10.Limitations of Liability
EXCEPT AS PROHIBITED BY LAW, YOU WILL HOLD US AND OUR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS HARMLESS FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGE, HOWEVER IT ARISES (INCLUDING ATTORNEYS' FEES AND ALL RELATED COSTS AND EXPENSES OF LITIGATION AND ARBITRATION, OR AT TRIAL OR ON APPEAL, IF ANY, WHETHER OR NOT LITIGATION OR ARBITRATION IS INSTITUTED), WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTION, OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY CLAIM FOR PERSONAL INJURY OR PROPERTY DAMAGE, ARISING FROM THIS AGREEMENT AND ANY VIOLATION BY YOU OF ANY FEDERAL, STATE, OR LOCAL LAWS, STATUTES, RULES, OR REGULATIONS, EVEN IF COMPANY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT AS PROHIBITED BY LAW, IF THERE IS LIABILITY FOUND ON THE PART OF COMPANY, IT WILL BE LIMITED TO THE AMOUNT PAID FOR THE SERVICES ON THE MALLARD BAY OUTDOORS PLATFORMS, AND UNDER NO CIRCUMSTANCES WILL THERE BE CONSEQUENTIAL OR PUNITIVE DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE PRIOR LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
11.Indemnification; Hold Harmless.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO RELEASE, DEFEND (AT MALLARD BAY OUTDOORS'S OPTION), INDEMNIFY, AND HOLD MALLARD BAY OUTDOORS AND ITS PARENT, SUBSIDIARIES, AFFILIATES OR ANY RELATED COMPANIES (INCLUDING THOSE WHICH SHARE SUBSTANTIALLY COMMON OWNERSHIP), AND THE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES HARMLESS FROM AND AGAINST ANY CLAIMS, LIABILITIES, DAMAGES, LOSSES, AND EXPENSES, INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL AND ACCOUNTING FEES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH: (I) YOUR BREACH OF THESE TERMS (INCLUDING ANY SUPPLEMENTAL OR ADDITIONAL TERMS THAT APPLY TO A PRODUCT OR FEATURE) (II) YOUR IMPROPER USE OF THE MALLARD BAY OUTDOORS PLATFORM, (III) YOUR INTERACTION WITH ANY USERS, STAY AT AN LODGING, PARTICIPATION IN AN EXPERIENCE OR OTHER OUTFITTER SERVICE, INCLUDING WITHOUT LIMITATION ANY INJURIES, LOSSES OR DAMAGES (WHETHER COMPENSATORY, DIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHERWISE) OF ANY KIND ARISING IN CONNECTION WITH OR AS A RESULT OF SUCH INTERACTION, STAY, PARTICIPATION OR USE, (IV) YOUR FAILURE, OR OUR FAILURE AT YOUR DIRECTION, TO ACCURATELY REPORT, COLLECT OR REMIT TAXES, OR (V) YOUR BREACH OF ANY LAWS, REGULATIONS OR THIRD PARTY RIGHTS SUCH AS INTELLECTUAL PROPERTY OR PRIVACY RIGHTS. MALLARD BAY OUTDOORS RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY US AND YOU AGREE TO COOPERATE WITH OUR DEFENSE OF THESE CLAIMS. YOU AGREE NOT TO SETTLE ANY MATTER WITHOUT THE PRIOR WRITTEN CONSENT OF MALLARD BAY OUTDOORS. MALLARD BAY OUTDOORS WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION, OR PROCEEDING UPON BECOMING AWARE OF IT.
12.Governing Law and Dispute Resolution and Arbitration Agreement.
12.1 Governing Law. These Terms shall be governed and construed in accordance with the laws of State of Delaware without regard to its conflict of law provisions. Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding the Mallard Bay Outdoors Platform and supersede and replace any prior agreements we might have had between us regarding the Mallard Bay Outdoors Platform.
12.2 Dispute Resolution and Arbitration Agreement. The Users hereby agree that any and all disputes, claims or controversies between Users and Mallard Bay Outdoors, including but not limited to any dispute arising out of or relating to these Terms shall be resolved through a consumer-friendly dispute resolution process. To that end, these Terms provide for a two-part process: (1) an informal negotiation directly with Mallard Bay Outdoors's customer service team, and any disputes which are not resolved by mutual agreement shall be resolved by (2) a binding arbitration administered by the American Arbitration Association (“AAA”). You and Mallard Bay Outdoors each retain the right to seek relief in small claims court as an alternative to arbitration.
12.3 Arbitration Agreement. For purposes of this Arbitration Agreement (“Agreement”) the term “parties” shall include Mallard Bay Outdoors, and the Users including both Sportsmen and Outfitter. In arbitration, each side in the dispute presents its case, including evidence, to a neutral third party called an “arbitrator,” rather than to a judge or jury. The parties agree that any arbitration shall be conducted before one neutral arbitrator selected by the parties and shall be conducted under the American Arbitration Association Arbitration Rules & Procedures then in effect. The parties agree that this Agreement is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1, et seq (“FAA”). The parties also understand and agree that Mallard Bay Outdoors is engaged in transactions involving interstate commerce.
The arbitration shall take place in Baton Rouge, Louisiana. The parties are entitled to be represented by their own legal counsel in the arbitration proceeding and agree to maintain the proceedings and the award, including the hearing, as confidential, except as is otherwise required by court order, required by law, or as is necessary to confirm, vacate or enforce the award. The arbitrator shall have the authority to order such discovery by way of deposition, interrogatory, document production, or otherwise, as the arbitrator considers necessary for a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration. The arbitrator is authorized to award any remedy or relief available under applicable law that the arbitrator deems just and equitable, including any remedy or relief that would have been available to the parties had the matter been heard in a court. Nothing in this Agreement shall prohibit or limit the parties from seeking provisional remedies, such as injunctive relief from a court of competent jurisdiction. The arbitrator shall have the authority to provide for the award of attorney's fees if such award is separately authorized by applicable law. The decision of the arbitrator shall be in writing and shall provide the reasons for the award unless the parties agree otherwise. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator's decision is final and binding which means there will be no trial by a judge or jury, or ability to appeal the arbitrator's decision except as provided by the FAA or analogous state law.
12.4 Agreement to Arbitrate. You and Mallard Bay Outdoors mutually agree that any dispute, claim or controversy arising out of or relating to these Terms or the applicability, breach, termination, validity, enforcement or interpretation thereof, or any use of the Mallard Bay Outdoors Platform, Outfitter Services, or any User Content (collectively, “Disputes”) will be settled by binding individual arbitration pursuant to this Agreement. If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and Mallard Bay Outdoors agree that the arbitrator will decide that issue.
12.5 Exceptions to Arbitration Agreement. You and Mallard Bay Outdoors each agree that the following causes of action and/or claims for relief are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) any claim or cause of action alleging actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) any claim or cause of action seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack); or (iii) a request for the remedy of public injunctive relief. You and Mallard Bay Outdoors agree that the remedy of public injunctive relief will proceed after the arbitration of all arbitrable claims, remedies, or causes of action, and will be stayed pending the outcome of the arbitration pursuant to section 3 of the Federal Arbitration Act.
12.6 Arbitrator's Decision. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award any relief allowed by law or the AAA Rules, but declaratory or injunctive relief may be awarded only on an individual basis and only to the extent necessary to provide relief warranted by the claimant's individual claim.
12.7 Jury Trial Waiver. You and Mallard Bay Outdoors acknowledge and intentionally agree that each are waiving the right to a trial by jury as to all arbitrable Disputes.
12.8 No Class Actions or Representative Proceedings. You and Mallard Bay Outdoors acknowledge and agree that, to the fullest extent permitted by law, each are waiving the right to participate as a plaintiff or class Users in any purported class action lawsuit, class-wide arbitration, private attorney general action, or any other representative or consolidated proceeding. Unless agreed in writing, the arbitrator may not consolidate more than one party's claims and may not otherwise preside over any form of any class or representative proceeding. If there is a final judicial determination that applicable law precludes enforcement of the waiver contained in this paragraph as to any claim, cause of action or requested remedy, then that claim, cause of action or requested remedy, and only that claim, cause of action or requested remedy, will be severed from this agreement to arbitrate and will be brought in a court of competent jurisdiction. In the event that a claim, cause of action or requested remedy is severed pursuant to this paragraph, then you agree that the claims, causes of action or requested remedies that are not subject to arbitration will be stayed until all arbitrable claims, causes of action and requested remedies are resolved by the arbitrator.
12.9 Severability. Except as provided in this Section, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision will be severed and the remainder of the Arbitration Agreement will be given full force and effect.
12.10 Changes to Agreement to Arbitrate. If Mallard Bay Outdoors changes this Section after the date you last accepted these Terms (or accepted any subsequent changes to these Terms), you may reject that change by sending us written notice (including by email) within 30 days of the date the change is effective. Rejecting a new change, however, does not revoke or alter your prior consent to any earlier agreements to arbitrate any Dispute between you and Mallard Bay Outdoors (or your prior consent to any subsequent changes thereto), which will remain in effect and enforceable as to any Dispute between you and Mallard Bay Outdoors.
12.11 Survival. This Section 15 will survive any termination of these Terms and will continue to apply even if you stop using the Mallard Bay Outdoors Platform or terminate your Mallard Bay Outdoors account.
13.Miscellaneous
13.1 Other Terms Incorporated by Reference. Our Privacy Policy and other supplemental policies and terms linked to in these Terms apply to your use of the Mallard Bay Outdoors Platform, are incorporated by reference, and form part of your agreement with Mallard Bay Outdoors. If you are subject to a Separate Agreement as defined in Section 4, that Separate Agreement is incorporated herein by reference, and forms part of your agreement with Mallard Bay Outdoors.
13.2 Interpreting these Terms. Except as they may be supplemented by additional terms, conditions, policies, guidelines, standards, and in-product disclosures, these Terms (including those items incorporated by reference under Section 16.1) constitute the entire agreement between Mallard Bay Outdoors and you pertaining to your access to or use of the Mallard Bay Outdoors Platform and supersede any and all prior oral or written understandings or agreements between Mallard Bay Outdoors and you. These Terms do not and are not intended to confer any rights or remedies upon anyone other than you and Mallard Bay Outdoors. If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions. Where the word “will” is used in these Terms it connotes an obligation with the same meaning as “shall.”
13.3 No Waiver. Mallard Bay Outdoors's failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision.
13.4 Assignment. The Terms and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Mallard Bay Outdoors without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
13.5 Notice. Unless specified otherwise, any notices or other communications to Users permitted or required under this agreement, will be provided electronically and given by Mallard Bay Outdoors via email, Mallard Bay Outdoors Platform notification, messaging service (including SMS and Chat), or any other contact method we enable and you provide. If Notice is by email, it will be provided to the email provided by you with your account information and it is your responsibility to update such account information for any changes.
13.6 Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
13.7 Independence of Relationship. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Mallard Bay Outdoors as a result of these Terms or use of the Mallard Bay Outdoors Platform. You further acknowledge that by submitting User Content or other Non-Mallard Bay Outdoors Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Mallard Bay Outdoors other than pursuant to these Terms.
13.8 Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
13.9 Third-Party Services. The Mallard Bay Outdoors Platform may contain links to third-party websites, applications, services or resources (“Third-Party Services”) that are subject to different terms and privacy practices. Mallard Bay Outdoors is not responsible or liable for any aspect of such Third-Party Services and links to such Third-Party Services are not an endorsement.
13.10 Survival. Sections 5, 6, 8.3, 8.4, 8.5, 12, 13, 14, 15, and 16 will survive any termination of these Terms.
13.11 Contact Us. If you have any questions about these Terms please email us at support@mallardbay.com.
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