Effective as of March 1, 2022
PLEASE BE AWARE THAT SECTION 15 OF THESE TERMS, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THESE TERMS. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF A DIGITAL PROPERTY WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THESE TERMS.
Your purchase or use of, and participation in, certain products or services may be subject to additional terms ( "Supplemental Terms" ) and such Supplemental Terms will either be listed in these Terms or will be presented to you for your acceptance when you purchase an item via or sign up to use the supplemental services. If these Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such product or service. These Terms and any applicable Supplemental Terms are referred to herein as the "Agreement."
PLEASE NOTE THAT THESE TERMS ARE SUBJECT TO CHANGE BY ZEROCOOL IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, zerocool will make a new copy of these Terms available at the Digital Property and any new Supplemental Terms will be made available from within, or through, the affected Digital Property on such Digital Property. We will also update the "Last Updated" date at the top of these Terms. Any changes to these Terms will be effective immediately for Users of the Digital Property. zerocool may require you to provide consent to the updated Agreement in a specified manner before further use of the Digital Property is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Digital Property. Otherwise, your continued use of the Digital Property constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE DIGITAL PROPERTY TO VIEW THE THEN-CURRENT TERMS.
- Use of the Digital Property
- 1.1 Certain Restrictions. You agree that: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Digital Property or any portion of the Digital Property, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other intellectual property (including images, text, page layout or form) of zerocool; (c) you shall not use any metatags or other "hidden text" using zerocool's name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Digital Property except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to "scrape" or download data from any portion of the Digital Property (except that we may grant the operators of public search engines revocable permission to use spiders to copy materials from the Digital Property for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Digital Property in order to build a similar or competitive digital property, application or service; (g) except as expressly stated herein, no part of the Digital Property may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on the Digital Property. Any future release, update or other addition to the Digital Property shall be subject to these Terms. zerocool, its suppliers and service providers reserve all rights not explicitly granted in these Terms. Any unauthorized use of the Digital Property terminates the licenses granted by zerocool pursuant to these Terms.
- 1.2 Third-Party Materials. As a part of the Digital Property, you may have access to materials that are hosted by another party. You agree that it is impossible for zerocool to monitor such materials and that you access these materials at your own risk.
- Responsibility for Content
- 2.1 Types of Content. You acknowledge that all content is the sole responsibility of the party from whom such content originated. This means that, to the extent that you upload, post, e-mail, transmit or otherwise make available any content, including, for example and without limitation, any reviews of the Digital Property or any products made available by zerocool (such content collectively, "User Content" ) through the Digital Property, (i) you, and not zerocool, are entirely responsible for all such User Content; and (ii) other Users, and not zerocool, are similarly responsible for all User Content that such other Users make available through the Digital Property.
- 2.2 No Obligation to Pre-Screen User Content. You acknowledge that zerocool has no obligation to pre-screen User Content, although zerocool reserves the right in its sole discretion to pre-screen, refuse or remove any User Content. By accessing the Digital Property, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of User Content, including any review or Feedback (as defined below) provided to zerocool. In the event that zerocool pre-screens, refuses or removes any User Content, you acknowledge that zerocool will do so for zerocool's benefit, not yours. Without limiting the foregoing, zerocool shall have the right to remove any User Content that violates these Terms or is otherwise objectionable.
- 2.3 Storage. Unless expressly agreed to by zerocool in writing elsewhere, zerocool has no obligation to store any User Content. zerocool has no responsibility or liability for: the deletion or accuracy of any User Content, including any User Content provided by you; the failure to store, transmit or receive transmission of User Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Digital Property.
- 3.1 zerocool Ownership. You agree that zerocool and its suppliers own all right, title and interest in and to the Digital Property, including the information, products, content and resources available on the Digital Property (including, but not limited to, titles, computer code, concepts, artwork, methods of operation, moral rights, and documentation). You will not remove, alter or obscure any copyright, trademark, or other proprietary rights notices incorporated in the Digital Property.
- 3.2 Trademarks. zerocool's stylized name and all related graphics, logos, trademarks and trade names used in connection with the Digital Property are the trademarks of zerocool and may not be used without permission in connection with your or any third-party product or service. Other trademarks, logos and trade names that may appear on the Digital Property are the property of their respective owners.
- 3.3 Feedback. You agree that submission of any ideas, suggestions, reviews, documents, and/or proposals to zerocool by zerocool's request or through its suggestion, feedback, wiki, forum or similar pages ( "Feedback" ) is at your own risk and that zerocool has no obligation (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to zerocool a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Digital Property and/or zerocool's business.
- Registering for an Account
- 4.1 Registration Data. In order to access certain features of the Digital Property and/or make purchases on the Digital Property, you may be required to register to create an account on the Digital Property ( "Account" ). In registering an Account, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the "Registration Data"); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Digital Property under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by unauthorized users, and you will accept full responsibility for any unauthorized use of the Digital Property by unauthorized users of your Account. You may not share your Account or password with anyone, and you agree to (A) notify zerocool immediately of any unauthorized use of your password or any other breach of security; and (B) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or zerocool has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, zerocool has the right to suspend or terminate your Account and refuse any and all current or future use of the Digital Property (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account. zerocool reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party's rights. You agree not to create an Account or use the Digital Property if you have been previously removed by zerocool, or if you have been previously banned from any of use of the Digital Property.
- 4.2 Access Through Third-Party Accounts. You may be able to register for or login to your Account using a valid account on a third-party service supported by the Digital Property ( "Third-Party Account" ). If you access the Digital Property through a Third-Party Account, you represent that you are entitled to disclose your Third-Party Account login information to us or otherwise grant us access to your Third-Party Account (including without limitation for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating zerocool to pay any fees or making zerocool subject to any usage limitations imposed by such third-party service providers. By granting zerocool access to any Third-Party Accounts, you understand that zerocool may access, make available, and store (if applicable) any content that you have provided to and stored in your Third-Party Account that is available on or through the Digital Property in accordance with the functionality of the Digital Property. All such content shall be considered to be your User Content for all purposes of these Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Digital Property. Please note that if a Third-Party Account or associated service becomes unavailable, or zerocool's access to such Third-Party Account is terminated by the third-party service provider, then your User Content may no longer be available on and through the Digital Property. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND ZEROCOOL DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS.
- 4.3 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of zerocool.
- User Conduct
5.1 Cheating and Hacking.
You agree that you will not, under any circumstances:
- interfere with or damage the Digital Property, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-site attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
- Modify or cause to be modified any files that are a part of the Digital Property;
- Disrupt, overburden, or aid or assist in the disruption or overburdening of: (i) any computer or server used to offer or support the Digital Property; or (ii) the enjoyment of the Digital Property by any other person;
- Institute, assist, or become involved in any type of attack on the Digital Property or other attacks or attempts to disrupt the Digital Property;
- Attempt to gain unauthorized access to the computers, servers or networks connected to the Digital Property by any means other than the user interface provided by zerocool, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Digital Property;
- Access, tamper with or use non-public areas of the Digital Property, zerocool's computer systems, or the technical delivery systems of zerocool's providers;
- Attempt to probe, scan, or test the vulnerability of any zerocool system or network, or breach any security or authentication measures;
- Disrupt or interfere with the security of, or otherwise cause harm to, the Digital Property, systems, resources, servers or networks connected to or accessible through the Digital Property or any affiliated or linked sites; or
- Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by zerocool or any of zerocool's providers or any other third party (including another user) to protect the Digital Property.
5.2 Commercial Activities.
You agree that you will not, under any circumstances (except to the extent expressly authorized by these Terms):
- reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of the Digital Property, or access to or use of the Digital Property;
- Upload, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation in connection with the Digital Property;
- Use the Digital Property or any part thereof for any commercial purpose without zerocool's prior written consent, including, but not limited to, communicating or facilitating any commercial advertisement or solicitation; or
- Market any goods for any business purposes on or in connection with the Digital Property without zerocool's prior written consent.
5.3 Unauthorized Use or Access.
You agree that you will not, under any circumstances:
- Interfere or attempt to interfere with the proper functioning of the Digital Property or connect to or use the Digital Property in any way not expressly permitted by these Terms;
- Systematically retrieve data or other content from the Digital Property to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods or through the use of bots, crawlers, spiders, or otherwise;
- Use, display, mirror or frame the Digital Property, or any individual element within the Digital Property, zerocool's name, any zerocool trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without zerocool's express written consent;
- Use any unauthorized software that accesses, intercepts, "mines" or otherwise collects information from or through the Digital Property or that is in transit from or to the Digital Property, including, but not limited to, any software that reads areas of RAM or streams of network traffic used by the Digital Property;
- Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a server or the Digital Property, whether through the use of a network analyzer, packet sniffer or other device;
- Make any automated use of the Digital Property, or take any action that imposes or may impose (in zerocool's sole discretion) an unreasonable or disproportionately large load on the infrastructure of the Digital Property;
- Bypass any robot exclusion headers or other measures zerocool takes to restrict access to the Digital Property, or use any software, technology or device to send content or messages, scrape, spider or crawl on the Digital Property, or harvest or manipulate data;
- Use, facilitate, create, or maintain any unauthorized connection to the Digital Property, including, but not limited to: (i) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Digital Property; or (ii) any connection using programs, tools or software not expressly approved by zerocool;
- Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Digital Property;
- Upload, post, e-mail, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- Solicit or attempt to solicit personal information from other users of the Digital Property;
- Register for more than one Account or register for an Account on behalf of an individual other than yourself;
- Use the Digital Property to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers; or
- Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including, but not limited to, clear GIFs, 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as "spyware," "passive collection mechanisms" or "pcms").
- Third-Party Services
- Terms of Sale
8.1 Order acceptance and cancellation.
In order to purchase products from the Digital Property, you may be required to create an Account. All pricing and payment terms for products (
"Terms of Purchase"
) are as indicated at point of sale or otherwise on the Digital Property in connection with such products, and any payment obligations you incur are binding.
You may be able to cancel your order in accordance with our then-current cancellation and refund policies set forth in our FAQs or the Terms of Purchase applicable to the Product. In the event of a conflict between the cancellation and refund policies and the applicable Terms of Purchase, the Terms of Purchase shall govern.
- 8.2 Purchase Terms. Products are made available at prices and subject to purchase terms and/or methods (e.g., via Blind Dutch Auction) identified in the Terms of Purchase applicable to such Products or as otherwise identified on the Digital Property. Certain additional terms, as made available in our FAQs and as may be updated from time to time, may apply to your purchase of such Products.
When you pay by credit or debit card, you must supply your card details when you place a bid or place an order, in accordance with the Terms of Purchase. You agree to pay all fees and charges for each accepted bid or order you make through the Digital Property. You agree that zerocool may pre-authorize and charge your debit or credit card through the Digital Property of our payment service provider's portal. We reserve the right to verify the identity of the credit or debit cardholder by requesting appropriate documentation. We may seek pre-authorization of your card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. If your card has been pre-authorized in connection with a bid that is not accepted, we will release such pre-authorization once the auction is complete or once you have canceled such bid. Your payment will be charged to your credit or debit card once your order has shipped. If non-payment occurs due to a failed credit card transaction, then we may terminate the applicable order.
We accept Discover Network, Visa, MasterCard, American Express credit and debit cards, through our third party payment service provider's portal. We use Stripe, Inc. ( "Payment Processor" ) as our third party payment service provider. Your use of the Digital Property and the payment processing provided by the Payment Processor is subject to the Stripe Connected Account Agreement that includes the Stripe Digital Property Agreement, as may be modified by the Payment Processor from time to time (collectively, the "Payment Processor Agreement" ). As a condition of using the Payment Processor's payment processing, you must provide accurate and complete information, and you authorize us to share this information with the Payment Processor and to charge your payment method for all amounts that may become due under these Terms. All bank, credit card, or other payment information is sent directly to and stored with the Payment Processor using its security protocols. zerocool does not store your payment information on its systems and shall not have any responsibility for the safety or security of that information. Your use of the Payment Processor's payment processing is conditioned upon your compliance with the Payment Processor Agreement, and if the Payment Processor Agreement is terminated by the Payment Processor, you may not be able to use the Digital Property, or you may have your use of the Digital Property suspended or terminated. We may change or add other payment processing services at any time upon notice to you, which may be subject to additional terms or conditions. By purchasing a product on the Digital Property, you hereby consent and authorize our use of the Payment Processor to process your payment. We disclaim all liability with regards to any fees or problems you have with our Payment Processor. Want to know more? Please reach out to our customer service at firstname.lastname@example.org for additional information.
Our payment service provider and the credit and debit cards we accept may change without notice.
8.4 Prices, taxes, fees.
Unless otherwise indicated, the prices listed on the Digital Property do not include sales tax, shipping, and handling charges. You will have the opportunity to review product prices and the estimated sales tax, shipping, and handling charges prior to submitting your order or completing the checkout process. The final calculation of the actual sales tax collected, which will be calculated in accordance with the tax code of the jurisdiction to which the order will be shipped, will be reflected in your order confirmation e-mail and packing slip. Except for sales tax, which is collected by zerocool, prices for products exclude all other taxes, duties, levies or fees, or other similar charges imposed on you by any taxing authority related to your order. You are responsible for payment of such taxes, duties, levies, fees or other similar charges resulting from your order (other than taxes imposed on zerocool's income) and we are not responsible for collecting, reporting, paying, remitting to you any such taxes, fees, or charges.
Notify zerocool promptly should you believe your order has a pricing error. zerocool reserves the right to change prices at any time.
Shipping for zerocool Products is fulfilled by a zerocool partner in accordance with zerocool's then-current shipping policies and procedures, as may be updated from time to time. Not all delivery options are available in all areas. Not all Products are available in all areas.
The risk of loss and title for Products you purchase pass to you upon our delivery of the Products to the carrier. Replacement of Products and credits for shipped products claimed as not received are subject to investigation, which may include notifying the carrier.
- 8.6 Tracking your order. As your order ships, you may receive an email providing the shipment tracking number(s). To see the detailed progress of your shipment, click on the tracking number link provided in your email. Please note that tracking detail may not be active immediately with FedEx or any other carrier; in that case, check back in several hours or the following day. Tracking information and support is provided by our third-party service provider.
- 8.7 Refund Policy. All requests for refunds are processed in accordance with zerocool's then-current cancellation and refund policies set forth in our FAQs , as may be updated from time to time in zerocool's sole discretion. Refunds may not be available except in the event Products received are damaged, defective, or not as otherwise described on the Digital Property due to a fact or circumstance within our reasonable control.
- 8.8 Disclaimers. Please note that zerocool reserves the right to decline or cancel orders, in whole or in part, at any time, including after acceptance, in which case we will return any amounts already paid for any portions of any orders that have been cancelled. Except for any obligation set forth in our then-current cancellation and refund policies set forth in our FAQs , we will have no liability for any such declined or cancelled orders. zerocool may also limit the quantity of Products available to purchase, whether generally or by any individual User, at any given time or period or in connection with any specific auction or other sale. zerocool may also prohibit a User from purchasing any Products or otherwise accessing or using the Digital Property in zerocool's sole discretion, including without limitation in the event of a violation of these Terms. zerocool reserves the right to cancel any auction or other offer of sale, at any time.
- Disclaimer of Warranties and Conditions
9.1 As Is.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE DIGITAL PROPERTY AND ANY ITEM PURCHASED THEREFROM IS AT YOUR SOLE RISK, AND THE DIGITAL PROPERTY AND ANY SUCH ITEM(S) ARE PROVIDED ON AN
"AS IS" AND "AS AVAILABLE"
BASIS, WITH ALL FAULTS. ZEROCOOL PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE DIGITAL PROPERTY. This Section 9.1 does not affect in any way our cancellation and refund policies for Products purchased on the Digital Property. If for any reason you are not satisfied with a purchase you make on the Digital Property, please review our cancellation and refund policies.
ZEROCOOL PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE DIGITAL PROPERTY OR ANY ITEM PURCHASED THEREFROM WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE DIGITAL PROPERTY WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE DIGITAL PROPERTY WILL BE ACCURATE OR RELIABLE.
ANY ITEM PURCHASED AND/OR CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE DIGITAL PROPERTY IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE DIGITAL PROPERTY, OR ANY OTHER LOSS THAT RESULTS THEREFROM.
THE DIGITAL PROPERTY MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. ZEROCOOL MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO DIGITAL PROPERTY, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF DIGITAL PROPERTY.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ZEROCOOL OR THROUGH THE DIGITAL PROPERTY WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
- 9.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT ZEROCOOL PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD ZEROCOOL PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
- Copyright Infringement Claims
- Limitation of Liability
- 11.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL ZEROCOOL PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT ZEROCOOL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE DIGITAL PROPERTY, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE DIGITAL PROPERTY; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE DIGITAL PROPERTY; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE DIGITAL PROPERTY; OR (5) ANY OTHER MATTER RELATED TO THE DIGITAL PROPERTY, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A ZEROCOOL PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A ZEROCOOL PARTY'S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A ZEROCOOL PARTY'S FRAUD OR FRAUDULENT MISREPRESENTATION. SOME JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU.
- 11.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL ZEROCOOL PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO ZEROCOOL BY YOU DURING THE TWELVE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A ZEROCOOL PARTY FOR (1) DEATH OR PERSONAL INJURY CAUSED BY A ZEROCOOL PARTY'S NEGLIGENCE; OR FOR (2) ANY INJURY CAUSED BY A ZEROCOOL PARTY'S FRAUD OR FRAUDULENT MISREPRESENTATION.
- 11.3 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ZEROCOOL AND YOU.
- 12.1 Violations. If zerocool becomes aware of any possible violations by you of these Terms, zerocool reserves the right to investigate such violations. If, as a result of the investigation, zerocool believes that criminal activity has occurred, zerocool reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. zerocool is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on the Digital Property, in zerocool's possession in connection with your use of the Digital Property, to (a) comply with applicable laws, legal process or governmental request; (b) enforce these Terms of Digital Property, (c) respond to your requests for customer service, or (d) protect the rights, property or personal safety of zerocool, its Users or the public, and all enforcement or other government officials, as zerocool in its sole discretion believes to be necessary or appropriate.
In the event that zerocool determines, in its sole discretion, that you have breached any portion of these Terms, or have otherwise demonstrated conduct inappropriate for the Digital Property, zerocool reserves the right to:
- Warn you via e-mail (to any e-mail address you have provided to zerocool) that you have violated these Terms;
- Suspend or terminate your access to the Digital Property (pursuant to Section 13.3 below) and/or
- Pursue any other action which zerocool deems to be appropriate.
- Term and Termination
- 13.1 Term. These Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Digital Property, unless terminated earlier in accordance with these Terms.
- 13.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that these Terms commenced on the earlier to occur of (a) the date you first used the Digital Property or (b) the date you accepted these Terms, and will remain in full force and effect while you use the Digital Property, unless earlier terminated in accordance with these Terms.
13.3 Termination of Agreement by Us.
If you have materially breached any provision of these Terms, if we decide to discontinue our Digital Property at any time in our sole discretion, or if we are required to do so by law, we have the right to, immediately and without notice, suspend or terminate your Account or access to the Digital Property.
If we become aware of any possible violations by you of these Terms, we reserve the right to investigate such violations. In the event that we determine, in our sole discretion, that you have breached any portion of these Terms, or have otherwise demonstrated conduct inappropriate for the Digital Property, we reserve the right to (i) warn you via e-mail (to any e-mail address you have provided to us) that you have violated these Terms; and (ii) pursue any other action which we deem to be appropriate. If, as a result of the investigation, we believe that criminal activity has occurred, we reserve the right to refer the matter to, and to cooperate with, any and all applicable legal authorities.
We are entitled, except to the extent prohibited by applicable law, to disclose any information or materials on the Digital Property, in our possession in connection with your use of the Digital Property, to (a) comply with applicable laws, legal process or governmental request; (b) enforce these Terms; (c) respond to your requests for customer service; or (d) protect the rights, property or personal safety of us, our Users or the public, and all enforcement or other government officials, as we in our sole discretion believe to be necessary or appropriate.
- 13.4 Termination of Agreement by You. If you want to terminate this Agreement, you may do so by (a) notifying zerocool at any time and (b) closing your Account. Your notice should be sent, in writing, to zerocool's address, zerocool, Inc. ATTN: Legal, 205 Hudson Street, 5th Floor, New York, NY 10013.
- 13.5 Effect of Termination. We will not have any liability whatsoever to you for any suspension or termination of your access to the Digital Property. All provisions of these Terms which by their nature should survive, shall survive termination, including without limitation, ownership provisions, warranty disclaimers, indemnification, dispute resolution, limitation of liability, and general provisions.
- International Users
- Dispute Resolution
- 15.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Digital Property, to any products sold or distributed through the Digital Property, or to any aspect of your relationship with zerocool, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or zerocool may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of these Terms or any prior version of these Terms.
15.2 Arbitration Rules and Forum.
The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to us at, zerocool, Inc. ATTN: Legal, 205 Hudson Street, 5th Floor, New York, NY 10013. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys' fees and interest, shall be subject to JAMS's most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS's most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS's rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS's filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, zerocool will pay them for you. In addition, zerocool will reimburse all such JAMS's filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- 15.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and zerocool. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum's rules, and these Terms (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
- 15.4 Waiver of Jury Trial. YOU AND ZEROCOOL HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and zerocool are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 15.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- 15.5 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsections limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other claims shall be arbitrated.
- 15.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: email@example.com within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
- 15.7 Severability. Except as provided in Section 15.1 above, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- 15.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with zerocool.
- 15.9 Modification. Notwithstanding any provision in these Terms to the contrary, you agree that if zerocool makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing zerocool at the following address: zerocool, Inc. ATTN: Legal, 205 Hudson Street, 5th Floor, New York, NY 10013.
- General Provisions
- 16.2 Release. You hereby release the zerocool Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that may be either directly or indirectly related to or arise from your use of the Digital Property, including, but not limited to, any interactions with Third-Party Properties of any kind arising in connection with or as a result of these Terms or your use of the Digital Property. If you are a California resident, you hereby waive California Civil Code §1542, which states, "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party." The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a zerocool Party or for such party's fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Digital Property or any Digital Property provided hereunder.
- 16.3 Assignment. These Terms and your rights and obligations hereunder, may not be assigned, delegated, or transferred by you, either in whole or in part, without the express prior written consent of zerocool, and any purported assignment, delegation, or transfer in violation hereof shall be void. zerocool may freely assign these Terms.
- 16.4 Force Majeure. The occurrence of any event beyond the control of a party, which prevents either party from complying with any of its obligations hereunder, including but not limited to: acts of God, such as, but not limited to, fires, floods, explosions, earthquakes, drought; war, embargoes, invasions, epidemics, pandemics, rebellion, revolution, civil war; nuclear contamination; riot, strikes, civil unrest; acts or threats of terrorism; or, compliance with the laws of the United States or with the orders or policies of any governmental authority, shall be considered "Force Majeure" . In such event, neither party shall be considered in breach of their obligations hereunder, with the exception of any payment obligations, to the extent that performance of their respective obligations is affected by an event of Force Majeure that arises subsequent to zerocool's acceptance of an order. The party that is prevented from carrying out its obligations hereunder as a result of an event of Force Majeure shall give notice to the other party of the event of Force Majeure upon it being foreseen by, or becoming known to, the affected party. If an event of Force Majeure occurs and its effect continues for a period of sixty (60) days, either party may give written notice of termination of the applicable order to the other party.
- 16.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Digital Property, please contact us at: firstname.lastname@example.org or at the notices address set forth in Section 16.9 below. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
- 16.6 Limitation Period. YOU AND ZEROCOOL AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR THE DIGITAL PROPERTY MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- 16.7 Governing Law and Jurisdiction. Any obligation based upon these Terms has been entered into, and shall be construed, enforced, and governed in accordance with the laws of the State of New York, without regard to conflicts of laws principles. Except as set forth in the Arbitration Agreement, venue and jurisdiction for any proceedings arising out of any obligation based upon these Terms shall lay exclusively in the state and federal courts of New York, New York, United States of America.
- 16.8 Choice of Language. It is the express wish of the parties that these Terms and all related documents have been drawn up in English.
- 16.9 Notice. Where zerocool requires that you provide an e-mail address, you are responsible for providing zerocool with your most current e-mail address. In the event that the last e-mail address you provided to zerocool is not valid, or for any reason is not capable of delivering to you any notices permitted by these Terms, zerocool's dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to zerocool at the following address: zerocool, Inc. ATTN: Legal, 205 Hudson Street, 5th Floor, New York, NY 10013. Such notice shall be deemed given when received by zerocool by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
- 16.10 Waiver. Any waiver of failure to enforce any term or provision of these Terms shall not be construed as a waiver of any subsequent breach, and shall not in any way affect, limit, or waive a party's right thereafter to enforce or compel strict compliance with every term, condition, and specification hereof.
- 16.11 Severability. If any term, provision, covenant, or condition of these Terms are held by the arbitrator, court or agency of competent jurisdiction to be indefinite, invalid, void, or otherwise unenforceable, the rest of these Terms shall remain in full force and effect and shall in no way be affected, impaired, or invalidated.
- 16.12 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Digital Property of the California Department of Consumer Affairs by contacting them in writing at 1625 N. Market Blvd, Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
- 16.13 Entire Agreement. These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
The Digital Property, including the information, products, content and resources available on the Digital Property, is protected by intellectual property laws throughout the world. Unless otherwise specified by zerocool in a separate license, your right to use the Digital Property is subject to these Terms.
The Digital Property may contain links to third-party properties ( "Third-Party Properties" ). When you click on a link to a Third-Party Property, we may not warn you that you have left the Digital Property and are subject to the terms and conditions (including privacy policies) of another property. Such Third-Party Properties are not under the control of zerocool. zerocool is not responsible for any Third-Party Properties. zerocool provides navigation to these Third-Party Properties only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Properties or any product or service provided in connection therewith. You use all Third-Party Properties at your own risk. When you leave our Digital Property, these Terms no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Property, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
You agree to indemnify and hold harmless zerocool, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a "zerocool Party" and, collectively, the "zerocool Parties" ) from any losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of any and all of the following: (a) your use of, or inability to use the Digital Property; (b) your violation of these Terms; (c) your violation of any rights of another party; or (d) your violation of any applicable laws, rules or regulations. zerocool reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with zerocool in asserting any available defenses. This provision does not require you to indemnify any of the zerocool Parties for any unconscionable commercial practice by such party or for such party's fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Digital Property or any Digital Property provided hereunder. You agree that the provisions in this section will survive any termination of these Terms and/or your access to the Digital Property.
It is zerocool's policy to terminate the Account of any User who repeatedly infringes copyright upon prompt notification to zerocool by the copyright owner or the copyright owner's legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Digital Property in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Digital Property of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Contact information for zerocool's Copyright Agent for notice of claims of copyright infringement is as follows: Jeff Gordon, CFO, 245 N. Highland Ave NE #230721 Atlanta, GA 30307.
The Digital Property can be accessed from countries around the world and may contain references to products and services and that are not available in your country. These references do not imply that zerocool intends to announce such product or service in your country. The Digital Property is controlled by zerocool from its facilities in the United States of America. zerocool makes no representations that the Digital Property is appropriate or available for use in other locations. Those who access or use the Digital Property from other countries do so at their own volition and are responsible for compliance with local law.
Please read the following arbitration agreement in this section ("Arbitration Agreement") carefully. It requires you to arbitrate disputes with zerocool and limits the manner in which you can seek relief from us.