Cool Off Terms of Use

Effective as of January 24, 2016

Thank you for your interest in and use of our products and services, and the content contained therein (the “Services”). Cool Off (“Cool Off App”, “we”, “us”, or “our“) provides these Services to you (“you” or “your“), subject to the terms contained in this Cool Off Services Terms of Use (this “Agreement“). This Agreement is a binding legal agreement between you and Cool Off. Please read the terms and conditions of this Agreement carefully before using our Services. The Services and all data, design, text, images, graphics, including all arrangements thereof, contained therein are proprietary, confidential, and are licensed to you under this Agreement, not sold to you. By accessing or otherwise using any portion of the Services, you agree to be bound by the terms of this Agreement. If you are not willing to be bound by the terms of this Agreement, you may not access or otherwise use any portion of the Services.

1. Ability to Use the Services.

In order to accept this Agreement and to use the Services, you agree that: (a) you must be the (“Minimum Age“) (defined below) or older; (b) you have the consent of your parent(s) to use the Services if you are under 18 years of age; (c) you have read, understood, and agree to be bound by this Agreement. If you are not at least the Minimum Age, do not have parental consent, or you do not agree to all the terms and conditions of this Agreement, you may not use the Services.

“Minimum Age” means (a) 18 years old for the People’s Republic of China, (b) 16 years old for the Netherlands, (c) 14 years old for the United States, Canada, Germany, Spain, Australia and South Korea, and (d) 13 years old for all other countries. However, if law requires that you must be older in order for Cool Off to lawfully provide the Services to you (including the collection, storage and use of your information) then the Minimum Age is such older age. The Services are not for use by anyone under the age of 13.

2. Privacy.

Cool Off’s privacy policy explains the data we collect, use, store, and process while you use and access our Services. By using our Services, you have read, understood, and agree to the terms of our privacy policy, and you agree that we may use such data in accordance with the terms of our privacy policy. If you have any questions regarding our privacy policy, please contact our support team.

3. Compliance with Policies.

While using the Services, you agree that you will comply with all posted policies as we may update from time to time. We may suspend or stop providing you with access to the Services if you fail to comply with our posted policies.

4. Changes in Terms.

We may modify this Agreement from time to time. If we make material changes to the Agreement, we will notify you by email. You agree that such modified Agreement will be effective thirty (30) days after our notice to you, except for changes that relate to new features or for legal reasons, which will become effective immediately. Your continued use of the Services after our provision of notice to you will constitute your affirmative acceptance to the modified Agreement. If you do not agree to, or cannot comply with, the Agreement as amended, you must stop using the Services.

5. Your License to Use the Services.

Subject to the terms and conditions of this Agreement and your payment of any required fees (if applicable), Cool Off hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access the Services in an Authorized Jurisdiction, and otherwise view and use the Services to the extent permitted by its intended functionality, for your own individual personal, non-commercial purposes and not for the sublicense to or use by third parties. You may only access and/or use the Services through the certified applications or intended methods that Cool Off or our licensed partners make available to you. Any access or use of our Services through an application, service, or method provided by a party other than Cool Off or one of our licensed partners is strictly prohibited, outside the scope of the license granted herein, and may subject your account to termination and other legal action. Any other use not authorized herein, or by Cool Off in writing, is strictly prohibited and a violation of this Agreement. Cool Off may revoke and/or terminate the foregoing license with respect to any aspect of the Services at any time, for any or no reason.

Restrictions. Except as otherwise specifically permitted in this Agreement, you shall not: (a) modify, download, intercept, or create any derivative works of the Services, including any translations or localizations thereof; (b) access or use the Services through an application or means not authorized by Cool Off; (c) copy, store, edit, change, exploit, download, prepare any derivative work of, or alter in any way any of the content made available through the Services; (d) license, sell, rent, lease, encumber, transfer, assign, distribute, disclose, post, make available, permit time sharing or simultaneous use of, or otherwise exploit the Services to or for the benefit of any third party; (e) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, algorithms, underlying ideas, or structure or organization of the Services; (f) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols, or labels on the Services; (g) publish or provide any results of any Services, in whole or in part, aggregated or otherwise, to a third party without Cool Off’s prior written consent; (h) provide your username and password used to access the Services to any third party; (i) use any systems or means, automated or otherwise, to access, acquire, copy, scrape, harvest, or monitor any part of the Services; (j) circumvent any technological measures employed by or on behalf of Cool Off to protect the Services; (k) use any other technologies or initiate any other activities that may harm the Services, or the interests or property of Cool Off or other users of the Services; or (i) aid or encourage any third party to engage in any activity that would constitute a breach of this Agreement.

ANY USE OF THE SERVICES NOT SPECIFICALLY PERMITTED UNDER THIS AGREEMENT IS STRICTLY PROHIBITED.

6. Communication Preferences and Consent.

From time to time we may send you communications to the email address associated with your account. These communications may include, but are not limited to, tips, special offers, and other account-related or transactional messages.

Additionally, our mobile and tablet applications may, in some circumstances, offer the ability for you to receive push notifications in connection with those applications. If you would like to modify your ability to receive push notifications from our applications, you can control those settings within the settings or preferences apps of each respective device. By accepting this Agreement and using the Services, you expressly consent to the receipt of all such communications from or on behalf of Cool Off. You may not opt-out of receiving account-related or transactional communications.

7. Advertising Content.

The Services may present advertisements for or links to third party websites, products, and/or services (“Third Party Ads”). We are not responsible for the availability of these Third Party Ads, or the images, messages, or other materials contained therein. Neither Cool Off nor any of its affiliates will be liable for any errors in content or omissions in any Third Party Ads, nor responsible for any losses or damages of any sort incurred as a result of your participation with, use of, or reliance on the Third Party Ads, including any goods, products, or services offered by such Third Party Ads.

8. Product Support; Feature Availability; Fraud & Abuse.

Cool Off is not obligated to provide technical support under the terms of this Agreement, and provides no assurance that any specific errors or discrepancies in the Services will be corrected. Cool Off may alter the availability of any feature of the Services, or impose new limitations on your use of the Services, at any time with or without notice, liability, or obligation with respect to such feature or limitation. In certain circumstances, such as in the case of a security problem, we may require you to install an update in order to continue using the Services. In order to provide the best quality Services to all of our users, we monitor the Services to detect and prevent fraud and abuse. We may, in our sole discretion, terminate your account and your access to the Services should we determine it is associated with fraudulent or abusive activities as it relates to the Services. Further, we reserve the right to pursue legal action in connection with fraudulent or abusive activities.

When using the Services, we may permit you to store data, preferences set by you, content or other information for your convenience, but we are under no obligation to retain any such data, preferences, content or other information that you may have stored and will not be liable for the deletion of any such information.

9. Payment, Fees, and Other Charges.

If you elect to access any paid component of the Services, such as becoming a subscriber, you agree to pay all fees and charges associated with that paid component on a timely basis. Unless otherwise stated, all fees and charges are due and payable in advance, are non-refundable, and are exclusive of any applicable federal, state, or local taxes. All such fees and charges (including any taxes and late fees, as applicable) will be charged to the payment method you provided when you elected to access that paid component of the Services. You agree to maintain a valid payment method during the term of your use of such Services.

Use of the Services may involve transmission of data through your carrier or service provider’s network. You are responsible for all carrier, text/SMS, data, or other related fees or charges you incur from your carrier or service provider in connection with, or related to your use of the Services. Cool Off assumes no liability or responsibility for the payment of any charges you may incur.

10. Intellectual Property.

As between you and Cool Off, you acknowledge that Cool Off retains all rights, title, and interest in and to all copyrights, trademarks, trade secrets, patents, and any other proprietary rights in the Services, the software and application programming interfaces (APIs) comprising the Services, and all content therein. Cool Off, its logo, as well as certain other Cool Off trademarks, service marks, graphics, and logos, are the registered trademarks or trademarks of Cool Off. The Services may also contain third-party trademarks, service marks, graphics, and logos. The Services are owned and/or licensed by Cool Off and are protected by the laws of the United States and other countries in which the Services are made available. You agree to prevent any unauthorized copying, use, or distribution of the Services. Except as expressly provided herein, Cool Off does not grant any express or implied right to you under any Cool Off-owned or licensed copyrights, trademarks, trade secrets, patents, or other proprietary rights.

11. Submissions & Feedback; Your Content.

Cool Off is fortunate to have a vibrant and active user community that shares our passion for innovation, and our drive to constantly improve our Services. While our employees continually strive to develop and evaluate our own ideas, we pride ourselves on paying close attention to the feedback, comments, and suggestions we receive from our users. By submitting any ideas, feedback and/or proposals to Cool Off regarding the Services (“Feedback”), you expressly acknowledge and agree that: (a) Cool Off is not under any obligation to you, including any obligation of payment of compensation or confidentiality, with respect to the Feedback; and (b) Cool Off may freely use, assign, transfer, distribute, exploit, and further develop and modify the Feedback for any purpose. To the extent any copyright or other intellectual property ownership interest vests in you with respect to the Feedback, you hereby grant Cool Off a worldwide, non-exclusive, royalty-free, fully paid up, irrevocable, sublicensable, and perpetual right and license to make, use, copy, sell, distribute, otherwise exploit, and create derivative works of the Feedback. Further, you irrevocably release Cool Off from any and all liability and claims that may result from or are related to the rights to the Feedback.

12. Export Control and Legal Compliance.

You represent and warrant that you are not (a) located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties.

13. Disclaimers; Limitations of Liability.

SOME JURISDICTIONS MAY NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES. TO THE EXTENT APPLICABLE LOCAL LAW SPECIFICALLY AND EXPRESSLY PROHIBITS SUCH EXCLUSIONS, THOSE SUCH EXCLUSIONS SET FORTH BELOW MAY NOT APPLY TO YOU.

THE SERVICES (INCLUDING ANY SOFTWARE AND CONTENT CONTAINED THEREIN) ARE LICENSED AND PROVIDED “AS IS” AND “AS AVAILABLE”. ANY USE OF THE SERVICES WILL BE AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COOL OFF DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. COOL OFF MAKES NO REPRESENTATIONS OR GUARANTEES THAT THE SERVICES WILL BE FREE FROM LOSS, DESTRUCTION, DAMAGE, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, OR WILL NOT CONTAIN CONTENT YOU DEEM OFFENSIVE, INDECENT, OR OTHERWISE OBJECTIONABLE, AND COOL OFF DISCLAIMS ANY LIABILITY RELATING THERETO. COOL OFF MAKES NO GUARANTEES, REPRESENTATIONS, OR WARRANTIES THAT THE USE OF OR THE RESULTS OF THE USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS, BE ACCURATE, RELIABLE, CURRENT, OR THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.

SOME JURISDICTIONS MAY NOT PERMIT THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITIES. TO THE EXTENT APPLICABLE LOCAL LAW SPECIFICALLY AND EXPRESSLY PROHIBITS SUCH EXCLUSIONS OR LIMITATIONS, THOSE SUCH EXCLUSIONS OR LIMITATIONS SET FORTH BELOW MAY NOT APPLY TO YOU.

COOL OFF’S CUMULATIVE LIABILITY TO YOU OR ANY PARTY RELATED TO YOU FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR USE OF THE SERVICES WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAID FOR THE APPLICABLE PORTION OF THE SERVICES AT ISSUE WITHIN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. IN NO EVENT SHALL COOL OFF BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR LOST PROFITS, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF COOL OFF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING.

14. Indemnification.

You agree to defend (at our option), hold harmless, and indemnify us from and against all third party claims and all liabilities, assessments, losses, costs, or damages resulting from or arising out of (a) your alleged or actual breach of this Agreement, including your express representations and warranties; (b) your use or misuse of the Services; and (c) your alleged or actual infringement or violation of the rights of a third party, including without limitation any intellectual property rights, rights of publicity, and rights of privacy.

15. Term and Termination.

Subject to the terms of this section, this Agreement will remain in effect for as long as you use the Services. You may cancel your account and terminate this Agreement at any time and for any reason by following the instructions outlined in this Support Help Article. We may terminate this Agreement and your access to the Services at any time and for any reason by providing notice to the email address you provided us. Upon any termination of this Agreement, the rights and licenses granted to you hereunder, including your ability to access and use the Services, will immediately terminate, and you shall immediately cease using any and all materials and other similar content in your possession or control that are proprietary to Cool Off. You agree that we will have no liability to you for any costs, losses, damages, or liabilities arising out of or related to the termination of this Agreement. Any provision of this Agreement that should, by its nature, survive termination of this Agreement will survive its termination. Such provisions include, but are not limited to sections 1-3 and 7-21.

16. Notices.

We may post notices to you within the Services. We may also send you notices about products and services to the email address you provided us. You hereby consent to receive notice from us through the foregoing means, and you are deemed to have received such notices at the latest within two (2) business days from us posting or sending a notice. You are responsible for keeping your account information, including your email address, up to date. Cool Off assumes no liability nor any responsibility for any consequences resulting from your provision or use of outdated, incomplete, or inaccurate information in connection with the Services. Except as otherwise provided for herein, any notices required to be delivered to Cool Off under this Agreement may be delivered via first class registered U.S. mail, overnight courier, or personal service to Cool Off App. LLC., Attn: Support Team, 9457 S University Blvd, Box #721, Highlands Ranch, CO 80126.

17. Assignment.

Cool Off may assign this Agreement or delegate any of our rights or obligations hereunder, or any part thereof, to any third party, including our successor in interest, without requiring your written consent. You may not assign this Agreement in whole or in part, for any reason. This Agreement will be binding upon and will inure to the benefit of the parties and their heirs, executors, administrators, successors, and assigns.

18. Third Party Beneficiaries.

Except with respect to platform providers through which you download or use applications certified by Cool Off, nothing in this Agreement, either express or implied, is intended to or will be deemed to confer upon any other person or entity any right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

19. Governing Law and Disputes.

(a) Governing Law. This Agreement, including all claims relating to or arising hereof or breach thereof, whether sounding in contract, tort, or otherwise, will be governed and construed in accordance with the laws of the state of Delaware, excluding its choice-of-law principles.

(b) Applicability of Section. The terms of this section 25 will apply to all disputes that may arise out of, are connected with, or relate to this Agreement or the Services, subject only to the following exceptions: (1) if Cool Off reasonably believes that you have in any manner acted or failed to act in any manner that may cause harm to us or any third party, we may seek injunctive or other appropriate relief in any court of competent jurisdiction; or (2) any dispute may, at the option of the claiming party, be resolved in small claims court in Santa Clara County, California, provided that all claims by all parties in the dispute (i) fall within the jurisdiction of the small claims court, and (ii) were unsuccessfully resolved through the Informal Resolution procedure required in section 25(c) below. Furthermore, in no event will the terms of this section limit Cool Off’s ability to investigate complaints or reported violations of this Agreement, or to take any action we deem necessary and appropriate to mitigate actions against us, including reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties such as music rightsholders.

(c) Informal Resolution. If you have any dispute with us or any related third party, arising out of, relating to, or connected with this Agreement or the Services, you agree to contact us directly and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account); and give us thirty (30) days from the date of filing your written description with us within which to resolve the dispute to your reasonable satisfaction. If Cool Off does not resolve the dispute through good faith negotiations under this informal process, you may pursue the dispute in accordance with the arbitration agreement below.

(d) Arbitration Agreement. Any claims by Cool Off, or claims by you that are not resolved by the Informal Resolution procedure described in section 25(c) above, arising out of, relating to, or connected with this Agreement must be asserted individually in binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes (including utilizing desk, phone, or video conference proceedings where appropriate and permitted to mitigate costs of travel). This Agreement and each of its parts evidence a transaction involving interstate commerce, and the Federal Arbitration Act (9 U.S.C. § 1 et seq.) will apply in all cases and govern the interpretation and enforcement of the arbitration rules and arbitration proceedings. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. In addition to and notwithstanding the terms stated above, the following will apply to your disputes: (1) the arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement including any claim that all or any part of this Agreement is void or voidable; (2) the arbitrator will not have the power to conduct any form of class or collective arbitration, nor join or consolidate claims by or for individuals; and (3) you hereby irrevocably waive any right you may have to a court trial (other than small claims court as provided above) or to serve as a representative, as a private attorney general, or in any other representative capacity, or to participate as a member of a class of claimants, in any lawsuit, arbitration, or other proceeding against us or related third parties arising out of, relating to, or connected with this Agreement.

The arbitration proceeding and the results thereof will be kept confidential by each party and not used for any purpose other than a party exercising its rights and fulfilling its obligations with respect to the other party; provided, however that either party may disclose the existence and results of the proceeding: (1) as required by law, rule, or regulation; (2) to its accountants, attorneys, and other fiduciaries; and (3) to an arbitrator or third party who has exercised its rights under this section 25 for use as persuasive authority in other proceedings brought pursuant to this section 25.

(e) Limitation of Actions. Regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of, relating to, or connected with your use of the Services, must be filed within twelve (12) months of the date the facts giving rise to the suit were known or should have been known by you, or forever be barred.

20. Severability.

In the event any provisions of this Agreement are found to be contrary to any law or regulation of an administrative or governmental agency or body, such provision will be modified and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. In the event such a provision cannot be modified and becomes invalidated or unenforceable, its invalidation or unenforceability will not affect the validity or enforceability of any other provision of this Agreement.

21. Entire Agreement.

This Agreement constitutes the complete and exclusive agreement between you and Cool Off with respect to the subject matter hereof, and supersedes all prior or contemporaneous oral or written communications, proposals, representations, understandings, or agreements not specifically incorporated herein.

22. Questions Regarding this Agreement.

If you have any questions regarding this Agreement, you may contact Cool Off’s Support team.