Terms and Conditions

This page describes the terms and conditions that govern your use of this website (the “Site”), including all information, documents, communications, files, text, graphics and software available through the Site (collectively, the “Materials”) and all services offered through the Site by Birkman International, Inc. (“BI” or “we”), the owner of the Site, or by third parties (the “Services”).

1.  We provide an eCommerce site made available via our website at and subdomains of https://store.birkman.com (website), which enables you to purchase merchandise (goods and services).

2.  These terms are binding on any use of the services and website by you and apply to you from the time that we provide you with access to the services.  Our website terms and conditions and Privacy Policy (website terms) also apply.

3.  We can change these terms at any time and from time to time, and such changes will become effective immediately upon posting. It is your responsibility to review these Terms of Use prior to each use of the Site and by continuing to use this Site, you are agreeing to any changes. You cannot change these terms except with our prior written consent.

4.  In addition, we may change, suspend or discontinue any content, feature or aspect of the Site, the Goods or the Services at any time, and from time to time, without notice or liability.

What you get

5.  You become a registered user if we have given you a username and password and you have agreed to follow the website terms and these terms.  You need to make sure your username and password are secure and confidential. Make sure you tell us straight away if you think or know someone else has used your password or there has been any other security breach.

6.  In providing User Information, you agree to provide accurate and complete information about yourself as required by the appropriate registration form and to maintain and update your User Information in order to keep it current, complete and accurate.

7.  If you follow these terms, then we grant you a non-exclusive, non-transferable license to access via the website.

8.  If you still need technical help, please contact our support team at support@birkman.com.  

Product Availability and Payment Method

9.  Items that you find on our Site are available in as displayed on the product page. In rare circumstances (such as where two users purchase the last unit of an item almost simultaneously), it is possible that the item that was ordered will be unavailable to ship. In such an event, the item will be canceled from your order and you will be notified by email within one (1) business days. Upon request, we will try our best but cannot guarantee "backorder" on any sold-out items. Our online store offers all items that are available at our physical location. If you are unable to find an item on our site, it is not available at this time. Once an item is removed from our site, it is no longer available.

10.  You agree that your purchase is not confirmed until we receive full payments from you for the purchased merchandise. You can't withhold payment or claim any set-off without getting our written agreement.

11.  Pricing. You may purchase merchandise by following the directions on the Site. If you purchase an item, you agree to pay the then-current applicable  price listed on the Site (“Store Item Price”) and BI will charge the credit/debit card  or your PayPal account that you submit in purchasing the item. The prices displayed on the Site are in U.S. Dollars.

12.  Extra terms. You may be presented with additional terms related to a specific purchase before you confirm the transaction (such as sales tax and shipping terms for tangible goods) if applicable. Those additional terms will also govern that transaction.

13.  Funding instruments. We want to make payments convenient, so we allow you to fund your transactions using a number of different sources, like credit/debit cards and via PayPal upon checkout. When you make a purchase on our website, you agree to provide a valid funding instrument that is accepted by our website.

14.  Authority. When you provide a funding instrument to us, you confirm that you are legitimately authorized or permitted to use that funding instrument. When you fund a transaction, you authorize us (and our designated payment processor) to charge the full amount to the funding instrument you designate for the transaction. You also authorize us to collect and store that funding instrument, along with other related transaction information for processing purposes.

15.  Authorization. If you pay by credit or debit card, we may obtain a pre-approval from the issuer of the card for an amount, which may be as high as the full price of your purchase. We will bill your card at the time the transaction is settled, or shortly thereafter. If you cancel a transaction before completion, this pre-approval may result in those funds not otherwise being immediately available to you.

16.  Failed funding. If you fund a payment by debit card and your transaction results in an overdraft or other fee from your bank, you alone are responsible for that fee.

17.  If your usage of our services, website, or any content provided to you by us exceeds what is stated in your purchased plan, we will bill you for that additional usage, and you agree that you will pay for that additional usage.

18.  If at any time you do not make a payment to us when you are supposed to, we can choose to (this doesn’t affect any other rights we may have against you):

a)  make you pay, on demand, default interest on any amount you owe us at the greater of 18% per annum calculated on a daily basis, from the date when payment was due until the date when payment is actually made by you or lesser maximum permitted under applicable law.  You will also need to pay all expenses and costs (including our legal costs) in connection with us trying to recover any unpaid amount from you; and/or

b)  suspend or terminate your use of the service.

Returns and Refunds

19.  Merchandise may be returned by mail or to our physical location within 30 days of the original purchase date.

20.  If you received free shipping on your order, your refund will be the product price minus the original shipping cost.

21.  Refunds will be made to the original method of payment when we receive the returned merchandise.

22.  Merchandise returned for refunds or exchanges must be unopened and unused in new condition with original packaging and accessories of all parts. Shipping and handling fees are not refundable.

 What you need to do

23.  You need to:

a.  make sure you always give us your correct contact for billing and shipping, particularly if these change;

b.  follow these terms, the website terms and other agreements you have with us;

c.  make sure that you comply with all laws, regulations, ordinances and other rules that relate to your use of the website.

24.  You remain solely responsible for complying with all applicable obligations, requirements and other laws with regard to the website. For example, it is your responsibility to check that storage of and access to your data via the website will comply with laws applicable to you (including any laws requiring you to retain records).

What we don’t let you do

25.  You can’t:

a.  assign or transfer any rights you have under these terms to any other person without getting our written agreement;

b.  do anything that would damage or disrupt our website or a service or anyone else’s use of our website or a service;

c.  use our website or a service, including, without limitation, any communication tools available through the website such as Skype, any forum, chat room or message center:

i.  to upload material or data in violation of any law (including to breach copyright or other intellectual property rights held by us or anyone else which you do not have the right to use);

ii.  to send unwelcome communications of any kind to anyone (e.g. spam or chain letters);

iii.  to abuse, defame, threaten, stalk or harass anyone;

iv.  to publish, post, upload or distribute unsuitable, offensive, obscene or discriminatory information of any kind;

v.  for running any network scanning software, spiders, spyware software, robots, open relay software or similar software;

vi.  to upload anything or otherwise introduce any viruses, worms, trojan horses, time bombs or bots or any other damaging items which could interfere with our, or anyone else’s, network or computer system;

vii.  for using any software or device which may hinder the services (like mail bombs, war dialing, pinging, etc.);

viii.  to attempt to gain unauthorized access to any services other than those to which you have been given express permission to access; or

ix.  for using a false identity to try to trick anyone for any reason.

Communication Conditions

26.  When you make leave a product review on the website, you represent that you are permitted to make such communication. You agree to indemnify and defend us from any claims, demands or lawsuits of any kind arising from your communications on the website.

27.  You agree that your Comments will not violate any right of any third party, including copyright, trademark, privacy or other personal or proprietary right. You further agree that your Comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Sites. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead Birkman International, Inc. or third parties as to the origin of any Comments. You are solely responsible for any Comments you make and their accuracy. Birkman International, Inc. takes no responsibility and assumes no liability for any Comments posted by your or any third party.

Disclaimer

28.  We will try to give you access to our website all the time, but we do not make any promises or provide you with a warranty that our website or the services will be without any faults or interruptions;

29.  While we intend that the services should be available 24 hours a day, seven days a week, it is possible that on occasions the website or services may be unavailable to permit maintenance or other development activity to take place. If for any reason we have to interrupt the services for longer periods than we would normally expect, we will use reasonable endeavors to publish in advance details of such activity on the website.

30.  Information on our website will change regularly. We will try to keep our website up to date and correct but again we do not make any promises or guarantees about the accuracy of the information on our website.

31.  We do not warrant that the services will meet your requirements or that they will be suitable for any particular purpose. It is your sole responsibility to determine that the services meet the needs of your business or otherwise and are suitable for the purposes for which they are used.

32.  We also aren’t legally responsible for:

a.  any corruption or loss of data or other content which you or anyone else may experience after using our website, or any problems you may have when you view or navigate our website;

b.  devices or equipment that we do not own or have not given you;

c.  if you do not follow our instructions or these terms or the website terms;

d.  any actions or non-actions or other people which disrupts access to our website including the trainees;

33.  You warrant that if you are accessing and using the services for the purposes of a business then, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction do not apply to the supply of the services, the website or these terms.

34.  You agree not to do or omit to do anything which gives rise to any liability on your part or our part under any legislation or omit to do anything which would avoid that liability. This includes not making any representation or giving any guarantee, warranty or other undertaking to anyone including your trainees in relation to the services unless that representation, guarantee, warranty or undertaking is supplied by us.

Termination

35.  These terms are effective unless and until terminated by either you or Birkman International, Inc. You may terminate this Agreement at any time. Birkman International, Inc. also may terminate this Agreement at any time without notice, and accordingly may deny you access to the Sites, if in our sole judgment you fail to comply with any term or provision of the Agreement. The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this Agreement for all purposes.

Intellectual Property

Our IP

36.  We own or have the right to use the copyright, trademarks, design rights, moral rights, software and other similar rights (intellectual property rights) with respect to our website, the service, or the content licensed to you from BI, or content of a third party provider supplied to you by BI, (content) (our IP). You can’t reproduce any of the content on our website, nor make derivative works of our IP, without getting our express permission in writing. You do not have any rights to our IP except granted under these terms or any other agreement you have with us.

37.  You are not allowed to, and you can’t let anyone else, copy, alter, distribute, display, license, modify or reproduce, reverse assemble, reverse compile (whether digitally, electronically, by linking, or in hard copy or by any means whatsoever) or use any of our IP without getting our permission first in writing, unless in order to use our website the way you are supposed to use it you need to copy, reproduce or use the IP.

38.  You need to tell us straight away if you think someone has infringed our IP, or someone has threatened to or you suspect someone might.  You also need to tell us as soon as you become aware that someone claims any use of our website infringes the rights of anyone else.  If this happens you will need to do everything we ask you to reasonably do (we will pay for your costs) to help us pursue or defend any associated proceedings.

Your IP

39.  You own, or warrant that you are authorized to use, the intellectual property rights in any data you submit to the website. However, your access to the data depends on you paying your monthly fees when due. You grant us a license to use, copy, transmit, store, and back-up your information and data for the purposes of enabling you and your trainees to access and use the services and for any other purpose related to provision of services to you.

40.  You must maintain copies of all data inputted into the services. We adhere to best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but do not make any guarantees that there will be no loss of data. It is also up to you to remove all data prior to you terminating these terms with us.

Information

41.  Your data is yours and is confidential until such time as it becomes public (through no fault of ours).  We will not use it, disclose it or even look at it unless we have to for security or operational purposes (e.g. if it seems to be causing technical problems), or it breaches these terms or if we are required by law to do so (for example where we are legally required to disclose it).

42.  For more information how we protect your personal information, please visit Birkman International’s Privacy Policy.

43.  You must not disclose or make our confidential information available to any person, or use the same for your own benefit, other than as contemplated by these terms.

Notices

44.  You can contact us by writing to support@birkman.com or to any other email address notified by email to you by us, with copies of any legal notices sent to our parent company, Birkman International, Inc., 3040 Post Oak Blvd. Suite 1425, Houston TX 77026. If we need to contact you, we will email the email address or call you at the phone number you gave us when you confirmed your online purchase.

No Rights of Third Parties

45.  A person who is not a party to these terms, including a trainee, has no right to benefit under, nor to enforce any, term of these terms.

Applicable Law

46.  The Terms of Use will be governed by and construed in accordance with the laws of the State of Texas, excluding only its conflict of law provisions. Any action to enforce these Terms of Use shall be brought in the federal or state courts located in Harris County, Texas. If a court finds any part of these Terms of Use to be invalid illegal, or unenforceable, it will be requested to give effect to the intent reflected in that provision in a manner that most closely matches the intent of the original provision, and the remainder of the Terms of Use shall continue in effect and be enforceable in accordance with the original language set forth herein. Notwithstanding any of the foregoing, nothing in these Terms of Service will serve to preempt the promises made in Birkman International’s Privacy Policy, incorporated by reference herein.

©2018 Birkman International, Inc