Last modified: June 14, 2022
Welcome to The Cool Down—a climate content and commerce platform owned and operated by The Cool Down Company (“TCD,” “we,” or “us”).
Please read These Terms carefully to ensure that you understand each provision. These Terms contain a mandatory individual arbitration provision in Section 11(B) (the “Arbitration Agreement”) and class action/jury trial waiver provision in Section 11(C) (the “Class Action/Jury Trial waiver”) that require, unless you opt out pursuant to the instructions in Section 11(B), the exclusive use of final and binding arbitration on an individual basis to resolve disputes between you and us, including any claims that arose or were asserted before you agreed to these Terms. To the fullest extent permitted by law, you expressly waive your right to seek relief in a court of law and to have a jury trial on your claims, as well as your right to participate as a plaintiff or class member in any class, collective, private attorney general or representative action or proceeding.
Use of Our Site
This is a contract between you and TCD. You must read and agree to these Terms before using the Site. If you do not agree, you may not use the Site. You may use the Site only if you can form a binding contract with TCD, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Site by anyone under 18 is strictly prohibited and in violation of these Terms. The Site is not available to any Users previously removed from the Site by TCD.
Access to the Site
Subject to the terms and conditions of these Terms, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Site for your personal, noncommercial use only and as permitted by the features of the Site. TCD reserves all rights not expressly granted herein in the Site and the TCD Content (as defined below). TCD may terminate this license at any time for any reason or no reason.
By providing TCD your email address you consent to our using the email address to send you Site-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Site and special offers. If you do not want to receive such email messages, you may opt out by clicking on an opt out link include in the emails. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Site in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Site in a manner that sends more request messages to the TCD servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that TCD grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from thecooldown.com 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); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Site; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Site; (vii) collecting or harvesting any personally identifiable information, including account names, from the Site; (viii) using the Site for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Site; (xi) accessing any content on the Site through any technology or means other than those provided or authorized by the Site; or (xii) bypassing the measures we may use to prevent or restrict access to the Site, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein.
Accessing any audiovisual content that may be available on the Site for any purpose or in any manner other than Streaming (as defined below) is expressly prohibited unless explicitly permitted by the functionality of the Site. “Streaming” means a contemporaneous digital transmission of an audiovisual work via the Internet from the Site to a User’s device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by the User.
We may, without prior notice, change the Site; stop providing the Site or features of the Site, to you or to Users generally; or create usage limits for the Site. We may permanently or temporarily terminate or suspend your access to the Site without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms, or for no reason. Upon termination for any reason or no reason, you continue to be bound by these Terms.
Our Proprietary Rights
The Site and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, and music (the “TCD Content”), and all intellectual property rights related thereto, are the exclusive property of TCD and its licensors. Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such intellectual property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any TCD Content. Use of the TCD Content for any purpose not expressly permitted by these Terms is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Site, including without limitation about how to improve the Site or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place TCD under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, TCD does not waive any rights to use similar or related ideas previously known to TCD, or developed by its employees, or obtained from sources other than you.
Promotions and Offers
We may, from time to time and in our sole discretion, offer certain discounts, promotional offers, or referral codes (“Promotions”) in connection with the Site. You agree that Promotions are offered subject to our right to manage, regulate, control, modify, revoke and/or eliminate the Promotions as TCD sees fit in its sole discretion for any reason or no reason, in any general or specific case, and that TCD will have no liability to you based on its exercise of such right.
No Professional Advice
If the Site provides professional information (for example, medical, legal, or financial), such information is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any information contained in the Site. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.
TCD cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
Third-Party Links and Information
You agree to defend, indemnify and hold harmless TCD and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Site, including any data or content transmitted or received by you; (ii) your violation of any term of these Terms, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (iv) your violation of any applicable law, rule or regulation; or (v) your willful misconduct.
The Site is provided on an “as is” and “as available” basis. Use of the Site is at your own risk. To the maximum extent permitted by applicable law, the Site is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from TCD or through the Site will create any warranty not expressly stated herein. Without limiting the foregoing, TCD, its subsidiaries, its affiliates, and its licensors do not warrant that the content is accurate, reliable or correct; that the Site will meet your requirements; that the Site will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Site is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Site is downloaded at your own risk and you will be solely responsible for any damage to your computer system or loss of data that results from such download or your use of the Site.
TCD does not warrant, endorse, guarantee, or assume responsibility for any product or site advertised or offered by a third party through the Site or any hyperlinked website or site, and TCD will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. These Terms give you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under these Terms will not apply to the extent prohibited by applicable law.
Limitation of Liability
To the maximum extent permitted by applicable law, in no event shall TCD, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, this Site. Under no circumstances will TCD be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Site or your account or the information contained therein.
To the maximum extent permitted by applicable law, TCD assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our site; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from the Site; (v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our site by any third party; (vi) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Site; and/or (vii) the defamatory, offensive, or illegal conduct of any third party. In no event shall TCD, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount you paid to TCD hereunder or $100.00, whichever is greater.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if TCD has been advised of the possibility of such damage. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. These Terms give you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under these Terms will not apply to the extent prohibited by applicable law.
The Site is controlled and operated from facilities in the United States. TCD makes no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Site if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Site are solely directed to individuals, companies, or other entities located in the United States.
Governing Law, Arbitration, and Class Action/Jury Trial Waiver
You agree that: (i) the Site shall be deemed solely based in Delaware or Oregon; and (ii) the Site shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Delaware or Oregon. These Terms shall be governed by the internal substantive laws of the State of Delaware, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) governs the interpretation and enforcement of the Arbitration Agreement in Section 11(B) and preempts all state laws to the fullest extent permitted by law. If the FAA is found to not apply to any issue that arises from or relates to the Arbitration Agreement, then that issue shall be resolved under and governed by the law of your state of residence. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Oregon for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Oregon is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from TCD. This Section 11(B) (the “Arbitration Agreement”) applies to and governs any dispute, controversy, or claim between you and TCD that arises out of or relates to, directly or indirectly: (i) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (ii) access to or use of the Site, including receipt of any advertising or marketing communications; (iii) any transactions through, by, or using the Site; or (iv) any other aspect of your relationship or transactions with TCD, directly or indirectly, as a consumer (“Claim” or collectively, “Claims”). The Arbitration Agreement shall apply, without limitation, to all Claims that arose or were asserted before or after your agreement to these Terms.
If you are a new TCD user, you can reject and opt-out of this Arbitration Agreement within 30 days of accepting these Terms by emailing TCD at email@example.com with your first and last name and stating your intent to opt-out of the Arbitration Agreement. Note that opting out of this Arbitration Agreement does not affect any other part of these Terms, including the provisions regarding controlling law or in which courts any disputes must be brought.
For any claim, you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute with us informally. In the unlikely event that TCD has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any Claim exclusively through binding arbitration by JAMS before a single arbitrator (the “Arbitrator”), under the Optional Expedited Arbitration Procedures then in effect for JAMS (the “Rules”), except as provided herein. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement shall control. JAMS may be contacted at www.jamsadr.com, where the Rules are also available. The arbitration will be conducted in Oregon, unless you and TCD agree otherwise. If you are using the Site for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Site for non-commercial purposes: (a) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (b) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (c) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You and TCD agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including issues relating to whether these Terms, any provision of these Terms, is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
Nothing in this Section shall be deemed as: preventing TCD from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights, or violation of our data security, intellectual property rights or other proprietary rights; or preventing you from asserting claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances on only an individual (non-class, non-representative) basis.
If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
Class Action/Jury Trial Waiver
With respect to all persons and entities, regardless of whether they have obtained or used the site for personal, commercial or other purposes, all Claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. You and TCD agree that the arbitrator may award relief only to an individual claimant and only to the extent necessary to provide relief on your individual claim(s). any relief awarded may not affect other TCD Users. You and TCD further agree that, by entering into these Terms, you and TCD are each waiving the right to a trial by jury or to bring, join, or participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind as a plaintiff or class member.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by TCD without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
These Terms, together with any amendments and any additional agreements you may enter into with TCD in connection with the Site, shall constitute the entire agreement between you and TCD concerning the Site. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect.
No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and TCD’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Sites of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
Please contact us at email@example.com with any questions regarding these Terms.