Last Updated: April 25, 2017
Welcome! You have arrived at a website or mobile Internet site operated by Thermapparel LLC. ("Thermapparel", "we," "our," or "us"). Each website or mobile Internet site shall be referenced as a "Site" or collectively, the "Sites", however it is accessed and/or used, whether via personal computers, mobile devices or otherwise.
PLEASE NOTE THAT THESE TERMS REQUIRE THAT DISPUTES BE RESOLVED ONLY BY FINAL AND BINDING ARBITRATION (AND NOT BY COURT LITIGATION) IN THE COUNTY OF THE BILLING ADDRESS ASSOCIATED WITH YOUR ACCOUNT, OR YOUR PURCHASE IF NO ACCOUNT EXISTS. THIS MEANS THAT YOU WAIVE ANY RIGHT TO JURY TRIAL, AND WAIVE ANY RIGHT TO BRING CLASS ACTIONS AGAINST US. Please review the Governing Law, Arbitration and No Class Actions provisions in Section 17 below of these Terms for complete details.
1. Account Registration
Certain areas of the Sites may require registration or may otherwise ask you to provide information to participate in certain features, such as to purchase products, in order to participate in a loyalty rewards program (such as our Thermapparel Referral program), receive electronic newsletters or mobile alerts, to participate in social networking activities, or to access certain Materials, use our User Forums, or post User Content. The decision to provide this information is purely optional; however, if you elect not to provide such information, you may not be able to participate in certain features of the Sites. When you provide information to the Sites, you agree to provide only true, accurate, current and complete information. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Sites (or any portion thereof).
If you register on the Sites and/or create a personal profile, you agree to accept responsibility for all activities that occur under your account ("Account") or password, if any, and you agree you will not sell, transfer or assign your membership or any membership rights to your Account. You are responsible for maintaining the confidentiality of your password, if any, and for restricting access to your computer (or other Internet access device, as applicable) so that others may not access the password protected portion of the Sites using your name in whole or in part. Thermapparel reserves the right to terminate your Account or otherwise deny you access in its sole discretion without notice and without liability.
Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to immediately notify us of any unauthorized use of your account or any other breach of security of which you become aware.
2. Ordering Products and Services
(a) Products and Services Offered on the Sites
You need a valid credit or payment card (except to the extent we permit purchases with PayPal, gift cards, gift certificates, promotional or discount codes, or similar forms of payment), with full authority to use it, to submit an order for merchandise or other products or services through our Sites. You hereby represent and warrant that you will not use any credit card or other form of payment unless you have all necessary legal authorization to do so. You may be asked to supply certain information relevant to your transaction including, without limitation, your credit or payment card number, the expiration date of your credit or payment card, your billing address, and your shipping information. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating the completion of transactions initiated by you or on your behalf to purchase products or services from the Sites. You understand that we will not be liable in the event that others acting with or without your permission use your credit or payment card to make purchases on the Sites. Certain products that you purchase and/or download on or through the Sites may be subject to additional terms and conditions presented to you at the time of such purchase or download.
(b) Prices; Colors; Availability
All prices listed on the Sites are subject to change. In the event a product or service is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or product information received from our suppliers, we shall have the right, prior to the acceptance of your order pursuant to our Order Acceptance Policy described below, to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit or payment card has already been charged for the purchase and we cancel your order, we shall issue a credit to your credit or payment card account in the amount of the charge. Please note that the colors of items and products may depend on your monitor and may not be correctly displayed.
Please keep in mind that while we might offer a variety of merchandise, products, and services for sale on the Sites, we cannot guarantee availability at a particular time; and certain products or services available in our stores ("in person" or "at events") might not be available on the Sites, and vice versa. We reserve the right to change our merchandise and other products and service offerings, both in-store and online, at any time. We also reserve the right to change contents, features and offerings, and adjust accessibility of the Sites from time to time in our discretion.
(c) Order Acceptance Policy
Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. We reserve the right at any time after receipt of your order to accept or decline your order for any reason. We reserve the right at any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. We may require additional verifications or information before accepting any order. Your order is not accepted until we send you shipping information for the order (or the accepted portion thereof). Notwithstanding the foregoing, you agree that, if we cancel all or a portion of your order or if we provide you less than the quantity you ordered, your sole and exclusive remedy is either that (a) we will issue a credit to your credit or payment card account in the amount charged for the cancelled portion or the quantity not provided (if your credit or payment card has already been charged for the order) or (b) we will not charge your credit or payment card for the cancelled portion of the order or the quantity not provided.
(d) Payment Terms
For each product or service that you order on the Sites, you agree to pay the price applicable for the product or service (including any sales taxes, surcharges and any delivery fees for the delivery service you select) as of the time you submitted the order. Thermapparel will automatically bill your credit card or other form of payment submitted as part of the order process for such price. If payment is not received by your credit or payment card issuer or its agents, you agree to pay all amounts due upon demand by us.
(e) Sales Taxes
Sales taxes, or other taxes, duties, customs, import/export charges, or similar governmental charges are not included in the price of the products. We shall automatically charge and withhold the applicable sales tax for orders to be delivered to addresses within the United States in accordance with our order policy in effect at the time of purchase. Each customer shall be solely responsible for all sales taxes, or other taxes, duties, customs, import/export charges, or similar governmental charges (except for taxes on Thermapparel's net income), on orders shipped outside the United States.
(f) Exchange and Return Policies
All purchase transactions are subject to Thermapparel's Exchange and Return policies in effect at the time of purchase. For reference, the current form of thermapparel.net's Exchange and Return policies is available at /return-and-exchange-policy. We may modify our return policies from time to time so you should check these each time prior to making a purchase. Returns and/or refunds are limited solely to apparel with fabric that is materially flawed or the printing is below quality standards.
The Sites may contain or offer sweepstakes or other promotions, which may be governed by a separate set of rules that describe the sweepstakes or promotion and may have eligibility requirements, such as certain age or geographic area restrictions. It is your responsibility to read those rules to determine whether or not your participation, registration or entry will be valid and to determine the sponsor's requirements of you in connection with the applicable sweepstakes or promotion.
4. Ownership of Site Materials
The Sites (including past, present and future versions) and all materials that are included in or are otherwise a part of the Sites, including, without limitation: graphics; layout; text; content; instructions; images; audio; videos; digital media designs; advertising copy; trademarks; logos; domain names; trade names; service marks and trade identities; any and all copyrightable material (including source and object code); the "look and feel" of the Sites; the compilation, assembly and arrangement of the materials of the Sites; and all other materials related to the Sites (collectively, the "Materials") are owned, controlled or licensed by Thermapparel, its subsidiaries or affiliates and are protected from unauthorized use, copying and dissemination by copyright, trademark, patent, publicity and other laws, rules, regulations and international treaties. Except as expressly set forth in these Terms or otherwise expressly granted to you in writing by Thermapparel, no rights (either by implication, estoppel or otherwise) are granted to you. Any and all rights to use any Materials not expressly granted to you under this Terms are hereby reserved for Thermapparel and/or its members, subsidiaries, affiliates or its licensors. Nothing contained in these Terms will affect, impair, or limit in any way Thermapparel's rights to exploit fully any or all of the Materials. You acknowledge and agree that you will not, directly or indirectly, contest, challenge, aid or abet in contesting or challenging the validity or ownership of the Materials, or take any action whatsoever in derogation of Thermapparel's rights therein, or in breach of, any terms and conditions contained in this Terms.
The entire contents of the Sites (including the Materials) are copyrighted under the United States copyright laws and/or similar laws of other jurisdictions. Without limitation, Thermapparel owns a copyright in the selection, coordination, arrangement and enhancement of the Materials on the Sites. Third-party content providers own the copyright in content that is original to them. Trademarks and service marks, such as the Thermapparel ]names and logos, and the Sites' URLs are the service and trademarks of Thermapparel. Without Thermapparel's prior written permission, you agree not to display or use, in any manner any such marks and all goodwill associated with any use by you thereof will inure exclusively to Thermapparel. The Materials may not be copied, reproduced, downloaded or distributed in any way, in whole or in part, without the express prior written permission of Thermapparel, unless and except as is expressly provided in these Terms. Any unauthorized use of the Materials is prohibited. You agree to abide by any and all additional trademark and copyright notices, information or restrictions contained in any part of the Sites.
Certain functionality provided via this Site(s) may be covered by U.S. Patent 5,930,474.
5. Your License to Use Materials on Our Sites
(a) License for Materials.
(b) Prohibited Activities.
You also agree that you will not: (a) use any robot, spider, rover, scraper, or any other data mining technology or automatic or manual process to monitor, cache, frame, mask, extract data from, copy or distribute the Materials (except as may be a result of standard Internet browser or search engine); (b) fail to follow the instructions provided on the Sites in a "robots.txt" file or similar mechanism (to the extent that you provide standard search engine services to the public); nor will you (c) modify, frame, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party web site, or otherwise use the Materials in any way for any public or commercial purpose except as specifically permitted by these Terms or Thermapparel without the prior written consent of Thermapparel.
(c) Streaming Video Content.
(e) Software and Other Items Available For Download.
Any items that we make available for download or use from the Sites and/or our servers, including, without limitation, the Digital Media Purchases (the "Downloadable Items") are the copyrighted work of Thermapparel or its licensors or suppliers. You may not use the Downloadable Items for commercial purposes. Your use of the Downloadable Items may be governed by Additional Terms, which may be included with the Downloadable Items. Please carefully read any Additional Terms to determine the full extent of conditions governing the use of such Downloadable Items. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE DOWNLOADABLE ITEMS TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE LICENSE AGREEMENT APPLICABLE TO SUCH DOWNLOADABLE ITEMS. Note that if you install certain applications that may be available via the Sites, you consent to the download of software to your computer and accept these Terms and any Additional Terms related to such application. The Sites may provide updates to the Downloadable Items for feature, security or other enhancements from time to time. You agree to hold Thermapparel harmless in the event of damage to your device used to access the Sites or data that may result from your use of the Downloadable Items.
6. Information You Submit
(a) User Content.
The Sites may provide you and others with the opportunity to participate in forums, blogs, message boards, social networking, and other communication (collectively, "User Forums") and may provide you with the opportunity, through such features or otherwise, to submit, post, display, transmit, perform, publish, distribute or broadcast content and materials to Thermapparel or the Sites, including, without limitation, Designs (defined below), photographs, writings, music, video, audio recordings, computer graphics, pictures, data, questions, comments, suggestions or personally identifiable information (collectively, "User Content").
(b) Terms Applicable to User Content.
(c) License to Thermapparel for User Content. You grant to Thermapparel the unrestricted, unconditional, non-exclusive, unlimited, worldwide, irrevocable, perpetual and royalty-free right and license to host, use, copy, distribute, reproduce, disclose, sell, re-sell, sub-license, display, perform, transmit, publish, broadcast, modify, reformat, translate, archive, store, cache or otherwise exploit in any manner whatsoever, all or any portion of your User Content for any purpose whatsoever in all formats; on or through any media, software, formula or medium now known or hereafter developed; and with any technology or devices now known or hereafter developed and to advertise, market and promote the same. You further agree that Thermapparel is free to use any ideas, concepts, know-how or techniques contained in any User Content you send to the Sites or Thermapparel, for any purposes whatsoever, including, without limitation, developing, manufacturing and marketing products and or services using such User Content; or creating informational articles based on or advertising our products and services, and without compensation of any kind. You further perpetually and irrevocably grant Thermapparel the unconditional right to use and exploit your name, persona and likeness included in any User Content and in connection with any User Content, without any obligation or compensation to you. You also grant to Thermapparel the right to sub-license and authorize others to exercise any of the rights granted to Thermapparel under these Terms; and each such third party will be entitled to benefit from the rights and licenses granted to Thermapparel under these Terms. You further authorize Thermapparel to publish your User Content in a searchable format that may be accessed by users of the Sites and the Internet. Except as prohibited by law, you waive any moral rights you may have in any User Content you submit, even if such User Content is altered or changed in a manner not agreeable to you.
(d) Thermapparel's Obligations Regarding User Content. You agree that Thermapparel has no obligation to pre-screen, monitor or enforce your intellectual property rights to your User Content but has the right to protect and enforce its and its licensees' licensed rights to your User Content. You further acknowledge and agree that Thermapparel will not have any obligation to, but may review, monitor, display, accept or exploit any User Content and Thermapparel may, in its sole discretion, delete, edit, distribute, move, block access, re-format, edit, alter, distort, remove or refuse to exploit User Content without notice or liability; provided, however, that Thermapparel reserves the right to treat User Content on the Sites, or on certain portions of the Sites, as content stored at the direction of users for which Thermapparel will not exercise editorial control except to enforce the rights of third parties and the content restrictions set forth in our User Forums Rules (defined below) when notice of such violations are directed to Thermapparel's attention.
Thermapparel is not in any manner responsible for the User Content. Any opinions, advice, statements, or other information contained in User Content made available on the Sites are those of the respective author(s) or distributor(s) and not of Thermapparel. We neither endorse nor guarantee the accuracy, completeness, or usefulness of any such User Content.
You acknowledge that by providing you with the ability to view User Content on the Sites, Thermapparel is not undertaking any obligation or liability relating to any such User Content, including without limitation any liability arising under the laws relating to copyrights, trademarks, defamation, privacy or obscenity or any other applicable law. User Content posted may not be maintained on the Sites by us for any period of time, we may delete it at our discretion and you have no right to access or control any User Content that you provide. You agree and understand that Thermapparel is not obligated to use User Content and that you will not receive any consideration or compensation for your User Content or for any exploitation of it.
(e) Your Obligations Regarding User Content. You agree that you need to evaluate, and bear all risks associated with, the use of any of User Content, including, but not limited to, any reliance on the accuracy, completeness, or usefulness of User Content. As Thermapparel may not pre-screen User Content, you bear legal responsibility for others' exposure to any offensive indecent or objectionable content in User Content.
7. User Forums Usage Rules
As a user of the Sites, you agree that these User Forums Usage Rules ("Rules") are here to help you understand the conduct that is expected of individuals who participate in User Forums, including any social networking opportunities on the Sites. Your participation in the User Forums is subject to all the Terms, including these Rules. We reserve the right, in our sole discretion, to monitor and screen all User Content submitted to the Sites and may disregard any User Content that, in our sole discretion, violates these Rules or the Terms, or that we otherwise find objectionable. Please follow these Rules as you upload any User Content:
(a) User Content has to be yours. All User Content has to be original, not copied from someone else's work, and you have all rights in the User Content; OR, all persons who contributed in any way or have any rights to your User Content or otherwise appear in the User Content have given you permission to upload and distribute the User Content on the Sites and elsewhere.
(b) No pictures or images of anyone but you, your friends and family. If you choose to upload photos to the Sites, link to embedded videos, or include other images of real people, make sure they are of you or of you and someone you know -- but only with their express permission to submit it.
(c) Please act appropriately. Express yourself with non-offensive individual self-expression. Be respectful of others opinions and comments so we can continue to build User Forums for everyone to enjoy. If you think your User Content might offend someone or be embarrassing to someone chances are it probably will and it doesn't belong on the Sites. Cursing, flaming, harassing, stalking, posting insulting comments, personal attacks, gossip or similar actions are prohibited. Your User Content may not threaten, abuse or harm others. Your User Content may not include any negative comments that are connected to race, national origin, gender, sexual preference or physical handicap or that are defamatory, slanderous, indecent, obscene, pornographic or sexually explicit. If you discover content that violates these Terms, you may report such abuse by clicking on the "report abuse" buttons located throughout the Sites.
(d) Don't upload third party materials. Your User Content should not contain any visible logos, phrases or trademarks or other third party materials. Do not use any User Content that belongs to other people and pass it off as your own. This includes any content that you might have found elsewhere on the Internet.
(e) Does your User Content contain music? Your User Content may not contain any music unless the work and performance is original with you and/or you have all rights to the musical work (including any performances). No jingles, sampling or otherwise.
(f) Do not use the User Forums for commercial purposes. Your User Content may not advertise or promote a product or service. You may not use your User Content to raise money for anyone, any organization, any business or for a pyramid or other multi-tiered marketing scheme.
(g) Do not upload User Content that is inappropriate or illegal. Your User Content may not promote any illegal activity. If someone could go to jail for taking action suggested by your User Content, don't upload or post it. If you do upload or post User Content that is illegal or in violation of applicable law, we reserve the right to take action that we deem appropriate, in our sole discretion, including reporting you to the proper governmental authorities.
(h) No violence. Your User Content may not promote violence or describe how to perform a violent act.
(j) Be honest and do not misrepresent yourself or your User Content. Do not impersonate any other person, user or company or upload or post User Content that you know is false, fraudulent, deceptive, inaccurate, misleading or that misrepresents your identity or affiliation with a person or company.
(j) Others are watching. We hope that you will use the User Forums to exchange information and content and have discussions with other members. However, please remember that the User Forums is a public forum and User Content that you post on the User Forums will be accessible and viewable by other users. Do not post personal information (e.g., first and last name, password, phone number, address, e-mail address or other personally identifiable information or contact information).
(k) Don't share other people's personal information. Your User Content may not reveal another person's address, phone number, e-mail address, credit card number or any information that may be used to track, contact, or impersonate that individual or that is extremely personal in nature. You may not harvest personally identifiable information about the Sites' users.
(l) Don't damage the Sites or anyone's computers. User Content may not upload viruses, Trojan horses, spyware or any other technologies that could impact the operation of the Sites or any computer system. You may not gain unauthorized access to any computer system or nonpublic portion of the Sites or interfere with or disrupt the Sites, servers or networks connected to the Sites.
We reserve the right to request at any time proof of the permissions referred to above in the sections starting "User Content has to be yours", "No pictures or images of anyone but you and your friends and family" and "Does your User Content contain music?" in a form acceptable to us. Failure to provide such proof may, if requested, lead to the User Content in question being removed from the Sites.
8. User Interactions and Disputes
You are solely responsible for your interaction with other users of the Sites, whether online or offline. We are not responsible or liable for the conduct of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others, when you submit or post any personal or other information, and in all other online activities.
9. Copyright Policy
(a) DMCA. You may not use the Sites for any purpose or in any manner that infringes the rights of any third party. In accordance with the Digital Millennium Copyright Act of 1998 (the "DMCA") (text at http://www.copyright.gov), Thermapparel has a designated agent for receiving notices of copyright infringement and we follow the notice and take down procedures of the DMCA. We have a policy of terminating the Accounts of users who (in our reasonable discretion) are repeat infringers.
(b) Procedure. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Thermapparel's copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online Site are covered by a single notification, a representative list of such works at that Site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact the complaining party; (e) 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; and (f) 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. Here is the contact information for our DMCA agent:
125 Tech Park Dr, #1100
Rochester, NY 14619
It is often difficult to determine if your intellectual property rights have been violated. We may request additional information before we remove any infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove your content along with that of the alleged infringer pending resolution of the matter.
10. Third Party Links and Content
11. Linking Policy
Thermapparel grants you the revocable permission to link to the Sites; provided, however, that your web site, or any third party web sites that link to the Sites: (a) can not frame or create a browser or border environment around any of the content on the Sites or otherwise mirror any part of the Sites; (b) can not imply that Thermapparel or the Sites are endorsing or sponsoring it or its products, unless Thermapparel has given its prior written consent; (c) can not present false information about, or disparage, tarnish, or otherwise, in Thermapparel's sole opinion, harm Thermapparel or its products or services; (d) can not use any Thermapparel trademarks without the prior written permission from Thermapparel; (e) can not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in Thermapparel's sole opinion); and (f) has to be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these Terms. By linking to the Sites, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in these Terms, Thermapparel reserves the right to prohibit linking to the Sites for any reason, in our sole and absolute discretion, even if the linking complies with the requirements described above.
12. Disclaimer of Warranties
THE SITES, INCLUDING, WITHOUT LIMITATION, THE MATERIALS, ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THERMAPPAREL AND ITS PARENT, SUBSIDIARIES OR AFFILIATES AND EACH OF THEIR EMPLOYEES, DIRECTORS, OFFICERS, MEMBERS, SHAREHOLDERS, AGENTS, VENDORS, AND CONTRACTORS (COLLECTIVELY, THE "THERMAPPAREL PARTIES") MAKE NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SITES; (B) THE MATERIALS ON OR PROVIDED THROUGH THE SITES; (C) USER CONTENT; (D) THE DOWNLOADABLE ITEMS AND EMBED CODE; (E) THE FUNCTIONS MADE ACCESSIBLE ON OR THROUGH THE SITES; (F) ANY PRODUCTS, SERVICES OR INSTRUCTIONS OFFERED OR REFERENCED AT THE SITES; AND/OR (G) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TRANSMITTED TO OR FROM THERMAPPAREL OR VIA THE SITES. IN ADDITION, THE THERMAPPAREL PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
THE THERMAPPAREL PARTIES DO NOT REPRESENT OR WARRANT THAT THE SITES OR THE FUNCTIONS CONTAINED THEREIN WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITES OR THE SERVER THAT MAKES THE SITES AVAILABLE ARE FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES OR OTHER MALWARE. THE THERMAPPAREL PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SITES IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE. THE THERMAPPAREL PARTIES DO NOT WARRANT THAT YOUR USE OF THE SITES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE THERMAPPAREL PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO THESE TERMS.
BY ACCESSING OR USING THE SITES, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SITES.
THERMAPPAREL PARTIES DO NOT REPRESENT HEALTH CARE PROFESSIONALS. YOU SHOULD CONSULT YOUR HEALTH CARE PROVIDER PRIOR TO USING ANY OF OUR COOLING PRODUCTS FOR A MEDICAL CONDITION. THERMAPPAREL LLC WILL NOT BE LIABLE FOR INJURIES OR DAMAGES RESULTING FROM MISUSE OR MISAPPLICATION OF OUR PRODUCT(S).
13. Limited Liability
UNDER NO CIRCUMSTANCES WILL THE THERMAPPAREL PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO (A) THE SITES; (B) THE MATERIALS; (C) USER CONTENT; (D) THE DOWNLOADABLE ITEMS AND EMBED CODE (E) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SITES; (F) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE THERMAPPAREL PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE SITES; (G) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (H) ANY ERRORS OR OMISSIONS IN THE SITES' TECHNICAL OPERATION; OR (I) ANY DAMAGE TO ANY USER'S COMPUTER, HARDWARE, COMPUTER SOFTWARE, WIRELESS DEVICES, CELLULAR PHONE, MODEM OR OTHER EQUIPMENT OR TECHNOLOGY, INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE THERMAPPAREL PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED, IN WHOLE OR IN PART, BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SITES). IN NO EVENT WILL THE THERMAPPAREL PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE THERMAPPAREL PARTIES' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED TEN UNITED STATES DOLLARS ($10.00).
YOUR ACCESS TO AND USE OF THE SITES IS AT YOUR RISK. IF YOU ARE DISSATISFIED WITH THE SITES OR ANY OF THE MATERIALS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SITES OR THE MATERIALS.
WAIVER OF INJUNCTIVE RELIEF. YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF THERMAPPAREL'S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF THE SITES OR ANY OTHER WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE THERMAPPAREL PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE OR OTHER MATERIALS OWNED OR CONTROLLED BY THE THERMAPPAREL PARTIES OR ANY AND ALL ACTIVITIES OR ACTIONS RELATED THERETO.
WAIVER OF UNKNOWN CLAIMS. BY ACCESSING THE SITES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
You agree to defend (if requested by Thermapparel), indemnify and hold harmless the Thermapparel Parties from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, settlements and expenses, including attorneys' fees, that directly or indirectly arise from or are otherwise directly or indirectly related to: (a) User Content; (b) your use of the Sites or activities in connection with the Sites; (c) your breach or anticipatory breach of these Terms; (d) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; (e) information or material transmitted through your computer or other device used to access the Sites, even if not submitted by you, that infringes, violates or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy or other right of any person or defames any person; (f) any misrepresentation made by you; or (g) the Thermapparel Parties' use of your information. You will cooperate as fully required by the Thermapparel Parties in the defense of any claim. Notwithstanding the foregoing, the Thermapparel Parties retain the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of action which are brought against them herein under the terms and provisions of this Section. The Thermapparel Parties reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of a duly authorized employee of the Thermapparel Parties.
15. Termination and Modifications
(a) Termination. Thermapparel reserves the right to terminate your access to and use of the Sites, including, without limitation your Account, in its sole discretion, without notice and liability, including, without limitation, if Thermapparel believes your conduct fails to conform with these Terms. Thermapparel also reserves the right to investigate suspected violations of these Terms, including, without limitation, any violation arising from any e-mails you send to the Sites or Thermapparel. Any violation, or potential violation, of these Terms may be referred to law enforcement authorities.
(b) Modifications. Thermapparel reserves the exclusive right to modify, withdraw, suspend or discontinue, temporarily or permanently, at any time and from time to time, any Materials available on the Sites, without limitation, in whole or in part, including the cessation of all activities associated with the Sites, with or without notice. You agree that Thermapparel will not be liable to you or to any third party for any modification, suspension or discontinuance of the Sites or any part thereof.
(c) What happens upon Termination? Upon termination of your access to the Sites and/or your Account, or upon demand from Thermapparel, all rights granted to you under these Terms will cease immediately, and you agree that you will: (a) immediately discontinue use of the Sites, including links to the Sites; and (b) destroy all Materials obtained from the Sites and all related documentation.
16. Location of Sites and Territorial Restrictions
The information provided on the Sites is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Thermapparel to any registration requirement within such jurisdiction or country. Thermapparel controls and operates the Sites from offices located in the United States and makes no representations or warranties that the information, products or services contained on the Sites are appropriate for use or access in other locations. Anyone using or accessing the Sites from other locations does so on their own initiative and are responsible for compliance with United States', and local laws regarding online conduct and acceptable content, if and to the extent such local laws are applicable. We reserve the right to limit the availability of the Sites and/or the provision of any content, program, product, service or other feature described or available thereon to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such content, program, product, service or other feature that we provide.
17. Governing Law, Arbitration, and Class Action Waiver
(a) GOVERNING LAW. THESE TERMS AND THE INTERPRETATION OF THESE TERMS WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES AND SPECIFICALLY WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.
(b) DISPUTE NOTICE
Before initiating an arbitration, you and Thermapparel each agree to first provide the other a written notice ("Notice of Dispute"), which shall contain: (a) a written description of the problem and relevant documents and supporting information; and (b) a statement of the specific relief sought. A Notice of Dispute can be (1) mailed to Thermapparel, 125 Tech Park Dr, #1100, Suite 2130, Rochester, NY 14623, or (2) emailed at email@example.com. Thermapparel will provide a Notice of Dispute to you via the billing address or email address associated with your Account and/or billing information (the "Notice Address").
You and Thermapparel agree to make attempts to resolve the Dispute prior to commencing an arbitration and not to commence an arbitration proceeding until a 45-day post-notice resolution period expires. If an agreement cannot be reached within forty-five (45) days of receipt of the Notice of Dispute, you or Thermapparel may commence an arbitration proceeding
(c) ARBITRATION. YOU UNDERSTAND AND AGREE THAT ALL CLAIMS, DISAGREEMENTS, DISPUTES OR CONTROVERSIES BETWEEN YOU AND ANY THERMAPPAREL PARTIES, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, PARENTS, AFFILIATES, SUBSIDIARIES AND/OR RELATED COMPANIES ARISING OUT OF OR RELATING TO THE SITES, TO THE USE OR ACCESS THEREOF, TO THE PRODUCTS, SERVICES, MATERIALS, PROGRAMS OR OTHER FEATURES OFFERED ON OR THROUGH THE SITES, AND/OR TO THE APPLICATION, ENFORCEABILITY, SCOPE, OR INTERPRETATION OF THIS AGREEMENT TO ARBITRATE ("DISPUTES") SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIMS QUALIFY.
ALL DISPUTES SHALL BE DETERMINED BY BINDING ARBITRATION (1) ADMINISTERED BY THE JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC. ("JAMS"), PURSUANT TO THE JAMS STREAMLINED ARBITRATION RULES & PROCEDURES EFFECTIVE JULY 1, 2014 (THE "JAMS RULES"), AND AS MODIFIED BY THIS AGREEMENT TO ARBITRATE; (2) CONDUCTED BY A SINGLE, NEUTRAL ARBITRATOR; AND (3) TAKE PLACE TELEPHONICALLY UNLESS AN IN-PERSON HEARING IS SPECIFICALLY REQUESTED BY EITHER PARTY, IN SUCH CASE IN-PERSON HEARINGS SHALL TAKE PLACE IN THE COUNTY OF THE BILLING ADDRESS ASSOCIATED WITH YOUR ACCOUNT, OR THE COUNTY WHERE YOU RESIDE, IN THE INSTANCE WHERE NO ACCOUNT EXISTS. TO THE EXTENT THAT THIS AGREEMENT TO ARBITRATE CONFLICTS WITH THE JAMS POLICY ON CONSUMER ARBITRATIONS PURSUANT TO PRE-DISPUTE CLAUSES MINIMUM STANDARDS OF PROCEDURAL FAIRNESS (THE "MINIMUM STANDARDS"), THE MINIMUM STANDARD IN THAT REGARD WILL APPLY.
DISPUTES MAY ALSO BE REFERRED TO ANOTHER ARBITRATION ORGANIZATION IF YOU AND THERMAPPAREL AGREE IN WRITING, OR TO AN ARBITRATOR APPOINTED PURSUANT TO SECTION 5 OF THE FEDERAL ARBITRATION ACT.
The JAMS Rules are available on its website at http://www.jamsadr.com/rules-streamlined-arbitration/ or by calling JAMS at 800-352-5267. To commence an arbitration, a Demand for Arbitration is required to be executed and served on Thermapparel. Service of the Demand for Arbitration on Thermapparel can be mailed to Thermapparel, 125 Tech Park Dr, #1100, Suite 2130, Rochester, NY 14623, pursuant to the instructions provided by JAMS to submit a Dispute for arbitration. Service of the Demand for Arbitration on you will be sent to the Notice Address. Further instructions on submitting a Demand for Arbitration can be found at www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf. Thermapparel will bear the cost of your initial filing fee.
BECAUSE THE SITES PROVIDED TO YOU BY THERMAPPAREL CONCERN INTERSTATE COMMERCE, THE FEDERAL ARBITRATION ACT ("FAA") GOVERNS THE ARBITRABILITY OF ALL DISPUTES. HOWEVER, APPLICABLE CALIFORNIA STATE OR U.S. FEDERAL LAW MAY ALSO APPLY TO THE SUBSTANCE OF ANY DISPUTES. YOU AND WE VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT YOU OR WE HAVE TO A JURY TRIAL.
(c) NO CLASS ACTIONS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE AGREE THAT ANY AND ALL DISPUTES WILL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS ACTION. NEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER USERS/CONSUMERS OR ARBITRATE, AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY, ANY DISPUTE. Further, unless both you and Thermapparel expressly agree otherwise, the arbitrator may not consolidate more than one person's claim. If this prohibition of class, representative, or consolidated arbitration is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
(d) FEES. In the event you commence arbitration, after Thermapparel receives notice that you have initiated arbitration, Thermapparel will promptly reimburse you for your payment of the filing fee and Thermapparel will pay any case management fees associated with the arbitration and the professional fees for the arbitrator's services.
18. Updates to Terms
Thermapparel reserves the right to modify or add to these Terms or any Additional Terms, at any time without prior notice ("Updated Terms"). You agree that we may notify you of the Updated Terms by posting them on the Sites so that they are accessible via a link on the home page of the Sites, and that your use of the Sites after we have posted the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms and any Additional Terms before using the Sites. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Sites from that point forward.
The failure of Thermapparel to act with respect to a breach of these Terms by you or others does not constitute a waiver and will not limit Thermapparel's rights with respect to such breach or any subsequent breaches. No waiver by Thermapparel of any of these Terms will be of any force or effect unless made in writing and signed by a duly authorized office of Thermapparel. Thermapparel may assign its rights and duties under these Terms to any party at any time without any notice to you. These Terms may not be assigned by you without Thermapparel's prior written consent. 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. You agree that these Terms will not be construed against Thermapparel by virtue of having drafted them.
125 Tech Park Dr, #1100