Terms and Conditions of Use
Last updated: January 6, 2020
1. Acceptance of these Terms and Conditions
These Terms and Conditions of Use are entered into between Warm Commerce, Incorporated (“Warm Commerce”) and you as a user of the Services (“you”). These Terms and Conditions of Use, as amended from time to time and together with any documents that are incorporated by reference (collectively, these “Terms and Conditions”), govern your access to and use of:
- public websites of Warm Commerce, at warmcommerce.com, and any Warm Commerce websites that directly link to these Terms and Conditions (collectively, the “Sites”); and
- any features, functionality, communications, products or other services that are produced, provided, operated, offered or maintained by Warm Commerce via the Sites (collectively and together with the Sites, the “Services”).
Please read these Terms and Conditions carefully before accessing or using the Services. By using the Services, or by clicking or otherwise indicating that you accept or agree to these Terms and Conditions when this option is made available to you, you accept and agree to be bound by these Terms and Conditions, and these Terms and Conditions form a binding contract entered into between you and Warm Commerce. To the extent the Services permit use by a company, organization or other entity, if you, as an individual, are acting for or on behalf of an entity, such as your employer, then by accessing or using the Services, or by clicking or otherwise indicating that you accept or agree to these Terms and Conditions: (i) you represent that you are fully authorized by such entity to access or use the Services; (ii) you agree to be bound by these Terms and Conditions on behalf of yourself and such entity; and (iii) “you” shall refer collectively to you and such entity, unless expressly provided otherwise.
These Terms and Conditions contain an arbitration provision and a waiver of class action rights as set forth in Section 181 below. By agreeing to arbitration, each party waives its rights to have any claims heard in a court by a judge or jury. By agreeing to waive class action rights, each party agrees to assert claims against the other only in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.
Separately provided rules, requirements, licenses or terms and conditions may be provided, entered into or otherwise supplied within or with respect to specific Sites or Services (collectively, “Additional Terms”), and such Additional Terms shall apply in addition to these Terms and Conditions. Additional Terms may include, but are not limited to, any agreement entered into directly between you and Warm Commerce or an affiliate of Warm Commerce, for the provision of products or services by Warm Commerce or its affiliate, provided, however, that such agreement is executed by all parties, and excluding any terms specified in standard documents provided by you.
The Additional Terms are incorporated into these Terms and Conditions by this reference. To the extent there is a conflict between these Terms and Conditions and any Additional Terms, the Additional Terms shall control unless the Additional Terms expressly provide otherwise.
If you do not agree to these Terms and Conditions, or if you are not eligible or permitted to use any of the Sites or Services, then you must not visit or use those Sites, or you must not use those Services, as applicable.
2. Modification of these Terms and Conditions
Warm Commerce may amend these Terms and Conditions, from time to time, at its sole discretion, and any amendments will be noted by updating the date these Terms and Conditions were last revised. All such amendments are effective at the time these Terms and Conditions are updated. Continuing to use the Services following any update to these Terms and Conditions, or clicking or otherwise indicating that you accept and agree to the updated Terms and Conditions, shall constitute your acceptance of and agreement to such revised Terms and Conditions, and you shall be bound by the revised Terms and Conditions.
It is your sole responsibility to check these Terms and Conditions regularly in order to be aware of any such changes to these Terms and Conditions. However, Warm Commerce may at its discretion notify you of material changes to these Terms and Conditions by providing a notice on its homepage or elsewhere within the Services, or by sending email to the email addresses linked to your user account with Warm Commerce. For this additional reason, you must keep the contact and profile information linked to your user account current.
3. Privacy and Information Practices
4. Account Registration and Security
You acknowledge and agree that you must create a user account to have access to certain Services. In creating a user account, you agree that you shall (a) provide true, accurate, current and complete information about yourself as prompted by the registration or subscription process (such information, the “Registration Data”) and (b) maintain and promptly update the Registration Data to ensure that it is true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or if Warm Commerce have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Warm Commerce may, at its sole discretion, suspend or terminate your user account and refuse any and all current or future use of the Services or any portion thereof.
You are entirely responsible for the security and confidentiality of your user account and password. Furthermore, you are entirely responsible for any and all activities that occur under your user account. You shall not share your user account information or your user name and password with any third party. You shall not permit any third party to enter into or use the Services under your user account. You agree that you shall immediately notify Warm Commerce of any unauthorized use of your user account or any other breach of security of the Services of which you become aware. You are responsible for taking precautions and providing security measures best suited for your situation and intended use of the Services. Warm Commerce has the right to provide your user account information, billing, User Content, use records and related information concerning you to third parties under certain circumstances (such as in response to legal responsibility, lawful process, orders, subpoenas or warrants, or to protect its rights, customers or business).
You are solely responsible for your user account that is used to access any Services and for all activity that occurs under your user account.
5. User Content and Use of the Services
The Services include features where users may upload, submit, post, publish, share, communicate, contribute or otherwise make available (hereinafter, “transmit”) content such as text, documents, materials or other information (collectively, “User Content”).
Your use of the Services and transmission of any User Content shall comply with the rules and restrictions on use of the Services and User Content set forth in these Terms and Conditions. All User Content transmitted by you via the Services shall comply with the content standards set out in these Terms and Conditions.
You solely are responsible for all User Content that you transmit via the Services. With respect to any online distribution, communication or publication of User Content transmitted by you, you acknowledge and agree that Warm Commerce is acting solely as a passive conduit.
You acknowledge and agree that any User Content transmitted via the Services shall be treated by Warm Commerce as non-confidential and non-proprietary.
By transmitting any User Content via the Services, you represent and warrant that:
- You, as an individual, or your employer or other company or entity represented by you, as appropriate, own or control all rights in and to such User Content or have sufficient rights to grant the license granted above, and to give consent as above, to Warm Commerce and its licensees, successors and assigns.
- All such User Content does and shall comply with these Terms and Conditions.
You understand and acknowledge that you are responsible for any User Content you submit or contribute, and you, not Warm Commerce, have full responsibility for such User Content, including its legality, reliability, accuracy and appropriateness.
Warm Commerce does not control User Content, and User Content does not represent the views of Warm Commerce or any individual associated with Warm Commerce.
Warm Commerce is not and shall not be responsible or liable to any third party for the contents, nature or accuracy of any User Content transmitted by you or any other user of the Services.
6. Use Restrictions
You shall use the Services only for lawful purposes and in accordance with these Terms and Conditions. You agree that you shall not under any circumstances, and shall not allow any other person to:
- use the Services in a way that violates, or promotes or encourages the violation of, any applicable federal, state, local or international law or regulation, or for any unlawful purpose or to promote illegal activities;
- transmit, upload, knowingly receive, download or otherwise use any material or information that is unlawful, abusive, threatening, harassing, obscene, defamatory, libelous, fraudulent or infringing, or that is racially, sexually or religiously offensive or otherwise objectionable;
- use of the Services for your or your employer’s, or any third party’s, benefit or commercial gain in a manner that is not expressly permitted by the Services or hereunder;
- use the Services to develop any products or services that may compete with the Services;
- provide information about or from the Services, or provide access to the Services, to a competitor of Warm Commerce;
- harass, abuse or harm, or attempt to harass, abuse or harm, another person or group;
- use another user’s login or account for use of the Services without the prior written consent of Warm Commerce; or
- provide false or inaccurate information when registering for a user account to access any of the Services;
- transmit User Content or use communications provided by or contacts made within the Services for any commercial solicitation purposes without the prior express consent of Warm Commerce; or
- use a false name or email address, impersonate Warm Commerce, a Warm Commerce employee or representative, another user or any other person or entity, or otherwise mislead as to the origin of content, materials or information.
Additionally, you agree that you shall not under any circumstances:
- make any automated use of the Services, or take any other action that Warm Commerce deems to impose or to potentially impose an unreasonable or disproportionately large load on the Services, or Warm Commerce’ servers or network infrastructure;
- use the Services in any manner that could disable, overburden, damage or impair the Services or interfere with any other person’s use of the Services;
- use any software, technology, robot, spider or other automatic device, process or means to access the Services for any purpose, including monitoring, harvesting, copying or manipulating any material, information or data available on the Services;
- use any manual process to monitor or copy any of the Services or any material, information or data available on the Services;
- upload, link to, or otherwise introduce any viruses, Trojan horses, worms, logic bombs or other material that is malicious or technologically harmful;
- create links to the Services in order to “frame” or “mirror” any portions of the Services in any other website or mobile site, or on any other service or wireless or internet-based device not controlled by Warm Commerce;
- attempt to gain unauthorized access to, interfere with, damage or disrupt any aspect of the Services, the servers from which the Services are operated, or any server, computer or database connected to the Services; or
- otherwise interfere or attempt to interfere with the proper functioning of the Services.
7. User Content Restrictions
You are solely responsible for any and all User Content that is transmitted via the Services under your account.
The following terms and conditions pertain to User Content. By transmitting, or permitting the transfer of, any User Content via the Services, you agree, represent and warrant as follows:
- You will comply with these Terms and Conditions.
- Your User Content expressing personal opinions shall be truthful, unbiased and objective.
- You shall not transmit User Content that contains information that is false, misleading or inaccurate.
- You shall not transmit via the Services User Content or any other materials that are copyrighted or subject to other third party proprietary rights, including, but not limited to, intellectual property, privacy, publicity or confidentiality rights, unless you are the owner of such rights or have the appropriate licenses or permissions from the rightful owners to transmit such content in accordance with these Terms and Conditions.
You hereby affirm that Warm Commerce has the right to determine whether User Content transmitted by you via the Services is appropriate and in compliance with these Terms and Conditions. You acknowledge and agree that Warm Commerce has the right to remove or disable any User Content transmitted by you that Warm Commerce finds, in its discretion, to be inappropriate or not in compliance with these Terms and Conditions, and to take any further actions that Warm Commerce deems appropriate under the circumstances.
Warm Commerce takes no responsibility and assumes no liability for any User Content that you or any other user or third party transmits via the Services. You understand and agree that any loss or damage that occurs as a result of the use of any User Content that you post or access via the Services is solely your responsibility. Warm Commerce is not responsible for any public display or misuse of your User Content.
8. Monitoring and Enforcement
Warm Commerce reserves the right, but is not obligated, to:
- take any action with respect to any user conduct that Warm Commerce deems necessary or appropriate in its sole discretion, including if Warm Commerce believes that such user conduct (i) violates these Terms and Conditions, including those prohibited uses described herein; (ii) infringes any intellectual property right or other right of any person or entity, or may result in criminal or civil action under applicable law or regulation; (iii) threatens the personal safety of users of the Services or the public; (iv) could create liability for Warm Commerce; or (iv) is unlawful, offensive, abusive, harmful, malicious or otherwise constitute a misuse of the Services.
- or engages in any activity that violates the rights of any person or entity or
- disclose your identity or other information about you to any third party who claims that your use of the Services violates his or her rights, including their intellectual property rights or their right to privacy;
- take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services;
- terminate or suspend your access to all or part of the Services for any or no reason, including, without limitation, any violation of these Terms and Conditions; or
- remove or refuse to post any User Content for any reason or no reason, in its sole discretion.
Without limiting the foregoing, Warm Commerce has the right to fully cooperate with any law enforcement authorities or court order requesting or directing disclosure of the identity of any users of the Services or other information of anyone posting any materials on or through the Services. YOU WAIVE AND HOLD HARMLESS WARM COMMERCE AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY WARM COMMERCE DURING, OR AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER WARM COMMERCE OR LAW ENFORCEMENT AUTHORITIES.
You acknowledge and agree that, at Warm Commerce’s discretion, Warm Commerce or technology that Warm Commerce employs may monitor and/or record your interactions with the Services.
Warm Commerce does not and cannot undertake to review all User Content before it is posted on or through the Services, and Warm Commerce cannot ensure prompt removal of objectionable material from the Services. Accordingly, Warm Commerce assumes no liability for any action or inaction regarding User Content, including but not limited to any transmissions, communications or content provided by any user or third party. Warm Commerce shall have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
Although Warm Commerce strives to enforce these Terms and Conditions, you may be exposed by your use of the Services to content that is inaccurate or objectionable.
If you become aware of any misuse of the Services, you agree that you shall promptly contact Warm Commerce to report such misuse, at firstname.lastname@example.org.
9. Intellectual Property
(a) Ownership. The Services are owned by Warm Commerce or its licensors. You acknowledge and agree that Warm Commerce and its licensors retain ownership of all intellectual property rights of any kind related to the Services, including applicable copyrights, trademarks and other proprietary rights.
The Services and all contents, materials, features and functionality accessed via the Services, including, but not limited to, all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof (collectively, the “Warm Commerce Content”), are owned by Warm Commerce, its licensors, or other providers of the Warm Commerce Content and protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights and related laws.
(b) Permitted Uses. Except as expressly provided herein, you may use the Services and the Warm Commerce Content for your personal or internal business use only. Except as expressly provided herein, you shall not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the Warm Commerce Content, except as follows:
- Your computer or device may temporarily store or cache copies of the Warm Commerce Content incidental to your accessing and viewing such Warm Commerce Content.
- You may print or download a reasonable number of pages of the Services or a reasonable amount of the Warm Commerce Content, in either case solely for personal or internal business use and not for further reproduction, publication or distribution.
You shall not under any circumstances:
- modify copies of any Warm Commerce Content or other materials from the Services; or
- delete or alter any copyright, trademark or other proprietary rights notices from copies of any Warm Commerce Content or other materials from the Services.
If you print, copy, modify, download, publicly display, distribute or otherwise use any Warm Commerce Content in breach of these Terms and Conditions, Warm Commerce may immediately terminate your right to use the Services, and you must, at Warm Commerce’s option, return or destroy any and all copies of any Warm Commerce Content in your possession.
(c) Trademarks. The names Warm Commerce and Warm Commerce, Inc., and all related names, logos, product and service names, designs and slogans are trademarks of Warm Commerce or its affiliates or licensors (the “Warm Commerce Marks”). All other names, logos, product and service names, designs and slogans used in connection with the Services are the trademarks of their respective owners (the “Third Party Marks”). Neither the Warm Commerce Marks nor the Third Party Marks may be used by you without the prior written consent of Warm Commerce or the applicable trademark owner.
(d) Reservation of Rights. No right, title or interest in or to the Services or the Warm Commerce Content is granted or transferred to you except as expressly set forth herein, and all rights not expressly granted herein are reserved by Warm Commerce. Any use of the Services or Warm Commerce Content not expressly permitted by these Terms and Conditions constitutes a breach of these Terms and Conditions and may violate copyright, trademark and other laws.
(e) Feedback. Certain of the Services may seek or request your suggestions for features, functionality or improvements, or you may otherwise provide such suggestions for to Warm Commerce (collectively, “Feedback”). If you choose to submit Feedback regarding such Services, you hereby grant Warm Commerce a non-exclusive, perpetual, irrevocable, royalty-free, fully paid up, sublicensable, worldwide right and license to make, use, copy, sell, distribute, create derivative works of and otherwise exploit the Feedback. You irrevocably release Warm Commerce from any and all liability and claims that may result from or are related to the intellectual property or other proprietary rights in any Feedback submitted by you.
You acknowledge and agree that, with respect to any Feedback submitted by you to Warm Commerce, (i) the Feedback does not contain confidential or proprietary information of third parties; (ii) Warm Commerce is under no obligation of confidentiality regarding the Feedback, whether express or implied; (iii) Warm Commerce may already have information or materials identical or similar to the Feedback; (iv) Warm Commerce is under no obligation to use the Feedback; and (v) Warm Commerce may use, distribute, exploit, assign and further develop and modify the Feedback for any purpose; and (vi) you shall not be entitled to any credit or compensation of any kind for the Feedback.
10. Warm Commerce Content and Accuracy of Information
Warm Commerce reserves the right to add, modify, disable or remove the Warm Commerce Content at any time and in Warm Commerce’s sole discretion, with or without notice to you. The Warm Commerce Content is not necessarily complete or up to date. Any of the Warm Commerce Content made available through the Services may be out of date at any given time, and Warm Commerce is under no obligation to update such material.
Warm Commerce does not represent or warrant that descriptions of products and services, or other information available through the Services, is or will be current, complete or free from error.
Moreover, to the extent that the Services include content provided by third parties (including, but not limited to, other users) or licensed from third parties, such third party content suppliers are solely responsible for the statements and opinions, and the accuracy and completeness of the content they make available through the Services. Such content provided by third parties does not necessarily reflect the opinions of Warm Commerce. Warm Commerce is not responsible or liable to you or any third party, for the content or accuracy of any such content provided by any third parties.
11. Links to Third Party Sites or Materials
As part of the Services, Warm Commerce may provide links to third party sites or other resources provided by third parties. These links are provided solely as a courtesy to users of the Services. If you use such links, you will leave the Services, and Warm Commerce has no control over the contents of those third party sites or resources, including, but limited to, any content, materials, information, promotions goods or services that may be available outside of the Services (collectively, the “External Content”).
Warm Commerce cannot endorse or guarantee, is not responsible for and does not warrant any materials, information, goods or services available through any linked websites or any privacy or other practices of such websites. Warm Commerce may terminate any link at any time.
Warm Commerce is not responsible for and cannot endorse, guarantee or make any representations or warranties regarding any External Content, or the results that you may obtain from using any External Content. You acknowledge and agree that Warm Commerce shall have no responsibility for any External Content, and that Warm Commerce shall have no responsibility for any loss or harm that may arise from your use of any External Content. If you decide to access any External Content linked to or from the Services, you do so entirely at your own risk.
Warm Commerce may add, modify, disable or remove any link to External Content at any time and in Warm Commerce’s sole discretion, with or without notice to you.
12. Disclaimer of Warranties
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS,” AND WARM COMMERCE HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SERVICES AND ALL INFORMATION PRESENTED VIA THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, WARM COMMERCE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION PRESENTED VIA THE SERVICES; THAT ACCESS TO OR OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; SECURITY OR PERFORMANCE OF THE SERVICES; EXISTENCE OR ABSENCE OF ANY DEFECTS IN THE SERVICES; OR COMPATIBILITY OF THE SERVICES WITH ANY EQUIPMENT OR SOFTWARE. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR USE OF THE SERVICES AND FROM DOWNLOADING OR USE OF CONTENT, INFORMATION OR OTHER MATERIALS OBTAINED VIA THE SERVICES.
13. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WARM COMMERCE, ITS PARENT, SUBSIDIARIES, AFFILIATES OR JOINT VENTURES, NOR EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, PARTNERS OR REPRESENTATIVES, BE LIABLE TO YOU OR TO ANY THIRD PARTY IN CONNECTION WITH THESE TERMS AND CONDITIONS OR THEIR SUBJECT MATTER, UNDER ANY LEGAL THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ANY (a) CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES; (b) YOUR USE OF THE SERVICES OR ANY IMPAIRMENT, DELAY OR OTHER INTERRUPTION IN THE SERVICES OR YOUR ABILITY TO USE THE SERVICES; (c) LOSS OF BUSINESS, REVENUE OR PROFIT, DIMINUTION IN VALUE OR OTHER ECONOMIC LOSS; (d) HARM TO REPUTATION OR GOODWILL; (e) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (f) CONTENT, ACCURACY OR COMPLETENESS, AND ANY ERRORS IN, OR OMISSIONS FROM, THE MATERIALS INCLUDED IN OR AVAILABLE THROUGH THE SERVICES; OR (g) CONTENT RETRIEVED FROM THE INTERNET EVEN IF RETRIEVED OR LINKED TO, FROM OR WITHIN THE SERVICES, IN EACH CASE REGARDLESS OF WHETHER WARM COMMERCE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL THE TOTAL AND AGGREGATE LIABILITY OF WARM COMMERCE, OR ITS PARENT, SUBSIDIARIES, AFFILIATES OR JOINT VENTURES, NOR EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, PARTNERS OR REPRESENTATIVES, TO YOU UNDER OR IN CONNECTION WITH THESE TERMS AND CONDITIONS OR THEIR SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED ONE HUNDRED U.S. DOLLARS ($100). ALL CLAIMS AGAINST EACH OF WARM COMMERCE, ITS PARENT, SUBSIDIARIES, AFFILIATES OR JOINT VENTURES, AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, PARTNERS OR REPRESENTATIVES WITH RESPECT TO ANY LIABILITY RELATED TO THESE TERMS AND CONDITIONS OR THEIR SUBJECT MATTER SHALL BE AGGREGATED TO DETERMINE SATISFACTION OF SUCH LIMIT, AND THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE OR EXTEND THE FOREGOING LIMITATION. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14. Exclusions and Limitations
Certain jurisdictions do not permit the disclaimer or exclusion of certain warranties or the disclaimer, exclusion or limitation of certain liabilities. To the extent that they are held to be legally invalid, disclaimers, exclusions and limitations, including those set forth in Section 12 and Section 13,2 shall not apply, and all other terms and conditions herein shall remain in full force and effect.
You agree to indemnify, defend and hold harmless Warm Commerce, its parent, subsidiaries, affiliates and joint ventures, and each of their officers, directors, employees, agents, licensors, partners, representatives, successors and assigns (each, an “Indemnitee”) from and against any and all losses, damages, obligations, liabilities, costs, debt and expenses (including, but not limited to, reasonable attorneys’ fees) incurred by such Indemnitee in connection with any claims or action by a third party arising out of or related to (a) your use of and access to the Services; (b) any User Content that you transmit via the Services; (c) your violation of any of your representations, warranties, covenants or obligations under these Terms and Conditions; (d) your violation of any third party right, including, without limitation, any intellectual property or privacy right; or (d) negligence or any more culpable act or omission (including recklessness or willful misconduct) by you in connection with these Terms and Conditions or their subject matter, or your use of the Services. This indemnification obligation shall survive these Terms and Conditions and your use of the Services.
16. Termination, Suspension and Limitations of Access
You agree that Warm Commerce may, with or without prior written notice, terminate, suspend or otherwise limit your access to the Services for cause. Cause for such termination, suspension or other limitation of access shall include but not be limited to: (a) any material breach of these Terms and Conditions or other incorporated agreements, rules or guidelines; (b) failure to pay any amount due relating to any of Warm Commerce’s products or services; (c) any request by law enforcement or other government agency; (d) unexpected technical or security issues or problems; and (e) engagement in fraudulent or illegal activities. Further, you agree that all such terminations, suspensions or other limitations of access for cause shall be made in Warm Commerce’s sole discretion, and Warm Commerce shall not be liable to you or any third party for any such termination, suspension or other limitation of your access to the Services. Warm Commerce is not responsible for any loss or damage arising out of your failure to comply with these Terms and Conditions or the steps that may be required as a consequence of any actual or perceived breach or other violation of these Terms and Conditions by you.
(a) Notice to Warm Commerce. Communications made through messaging systems within the Services, if any are available, shall not constitute notice to Warm Commerce or any of its officers, employees, agents or representatives in any situation where notice to Warm Commerce is required by contract or applicable law or regulation. Where notice to Warm Commerce is required by contract or applicable law or regulation, you shall provide written notice to Warm Commerce at:
(b) Notice to You; Consent to Receive Communications in Electronic Form. For purposes of providing notice to you as required by contractual or applicable law or regulation, you (i) consent to receive such notice from Warm Commerce in electronic form, including, without limitation, by sending email to the email addresses linked to your user account with Warm Commerce, and (ii) agree that all terms and conditions, agreements, notices, disclosures and other communications that Warm Commerce provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing.
(c) Assignment. Warm Commerce may assign or delegate these Terms and Conditions, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under these Terms and Conditions without Warm Commerce’s prior written consent, and any unauthorized assignment or delegation by you is ineffective.
(d) Governing Law. Except as expressly set forth herein, you and Warm Commerce each agree that these Terms and Conditions and any dispute arising out of or relating to these Terms and Conditions or use of the Services shall be governed by the laws of the State of Texas without regard to its choice or conflict of law provisions or rules.
(e) Dispute Resolution by Arbitration. Any and all claims, causes of action or disputes (regardless of theory) arising out of or relating to these Terms and Conditions or use of the Services shall be settled exclusively by arbitration involving one arbitrator and administered by the American Arbitration Association (“AAA”) or its successor in accordance with its Commercial Arbitration Rules, including, where applicable, the AAA’s Supplementary Procedures for Consumer-Related Disputes, or other applicable rules as determined by the arbitrator. Arbitration proceedings shall by conducted in Houston, Texas in the English language, and, at the request of either party, result in a written statement of the facts and legal reasoning supporting the decision of the arbitrator(s). The arbitrator may award any individual relief or individual remedies that are permitted by applicable law. Judgement on an award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall be confidential, and neither you nor Warm Commerce may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. The costs of arbitration shall be borne equally by the parties. Each party shall pay its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law. The Federal Arbitration Act (“FAA”) shall govern the arbitrability of any dispute arising out of or relating to these Terms and Conditions or the Services.
(f) Waiver of Class and Collective Actions. To the fullest extent permitted by applicable law, YOU AND WARM COMMERCE AGREE THAT (i) ANY CLAIM BROUGHT BY YOU OR WARM COMMERCE AGAINST THE OTHER THAT ARISES FROM OR RELATES TO THESE TERMS AND CONDITIONS OR USE OF THE SERVICES SHALL BE NOT BE ASSERTED AS A CLASS ACTION OR COLLECTIVE ACTION, WHETHER IN ARBITRATION, COURT OR ANY OTHER FORUM; AND (ii) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING AND MAY NOT AWARD CLASS-WIDE RELIEF. Disputes between the parties arising from or relating to these Terms and Conditions or use of the Services shall be resolved only on an individual basis and will not be joined or consolidated with any other proceeding that involves any claim or controversy of any other party. Neither party shall have a right to resolve such disputes on a class action basis or on any basis involving such disputes brought in a purported representative capacity on behalf of other persons or entities similarly situated or the general public.
(g) Limitation of Time to File Claims. Each party agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms and Conditions or use of the Services must be filed within one (1) year after such claim or cause of action arose or be forever barred.
(h) Third Party Beneficiaries. Except as expressly set forth herein and except for Warm Commerce’s service providers, licensors or others involved in creating or providing the Services, nothing herein, express or implied, shall give or be construed to give any rights hereunder to any third party.
(i) Entire Agreement. These Terms and Conditions, together with any Additional Terms or other documents that are expressly incorporated by reference, shall constitute the entire agreement between you and Warm Commerce regarding the Services and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding the Services.
(j) Waiver. The failure of either party to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision. No waiver of Warm Commerce’s rights under these Terms and Conditions shall be valid or effective except by a written agreement bearing the physical signature of an officer of Warm Commerce. No purported waiver or modification of these Terms and Conditions by Warm Commerce via telephonic or email communications shall be valid.
(k) Severability. If any provision of these Terms and Conditions is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of these Terms and Conditions will continue in full force and effect.
(l) Headings. The section headings in these Terms and Conditions are for convenience only and have no legal or contractual effect.
18. Contact Warm Commerce
The Services are provided and operated by Warm Commerce, Incorporated, 1301 Fannin Street, Suite 2440, Houston, TX 77002
All other questions, comments, concerns, requests for technical assistance and communications may be directed to Warm Commerce at the address above, by email at email@example.com; provided, however, that any comments, ideas, suggestions, analysis, requested modifications and improvements shall constitute Feedback in accordance with Section 93 above.