THESE TERMS OF SERVICE (“AGREEMENT”) ARE A LEGAL AGREEMENT BETWEEN YOU (“YOU”, “YOUR”, OR “CUSTOMER”) AND THIMBLE, INC. (“WE” OR “THIMBLE”), THE OWNER AND OPERATOR OF THE WWW.THIMBLE.IO WEBSITE (THE “SITE”). THIS AGREEMENT STATES THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE, AND YOUR PURCHASE OF THE MEMBERSHIPS AND PRODUCTS SOLD ON THIS SITE. BY ACCESSING AND USING THE SITE, YOU ARE INDICATING THAT YOU ACCEPT, AND AGREE TO COMPLY WITH, THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU ARE NOT PERMITTED TO, AND YOU MUST NOT, ACCESS OR USE THE SITE OR PURCHASE PRODUCTS FROM, OR MEMBERSHIPS TO, THE SITE.
By signing up for a Membership (as defined below), you represent, acknowledge, and agree that you are at least 13 years old. In addition, if you are under the age of 18, you represent, acknowledge, and agree that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to enter into this Agreement.
PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN US ARE RESOLVED, WHICH INCLUDE A JURY TRIAL WAIVER AND A CLASS ACTION WAIVER.
1 – CHANGES TO SITE; PERSONAL INFORMATION/PRIVACY
1.1 – Changes to the site
Thimble may add to, change or remove any part of the Site, including, without limitation, any Content (as defined below) therein, at any time without prior notice to you.
1.2 – Personal Information
Customers agree to provide accurate, current, and complete information as required for the purchase of the Products and Memberships (both as defined below in Section 3.1). Thimble reserves the right to block further sales to Customers who provide false, inaccurate or incomplete data. Customer acknowledges that Thimble uses a third party payment processing service to process orders and bill fees to your credit card and will share your credit card and/or billing information with such third party for such purpose.
1.3 – Privacy
PLEASE TAKE NOTICE that Thimble (and its third party service providers) automatically collects various types of information about your visits to our Site, registration for a Membership, and/or use our Services. In addition to the Personal Information provided by you in connection with your account registration, we may also collect certain additional information by automated means, such as cookies, web beacons, and other automated devices.
2 – PASSWORDS; USE OF SITE
2.1 – Passwords
We may assign you a username and password to enable you to access and use certain portions of this Site. Each time you use a password or identification, you will be deemed to be authorized to access and use the Site in a manner consistent with these Terms of Service.
You are responsible for maintaining the confidentiality of your passwords, and you are responsible for all activities that occur using your passwords or accounts. You agree not to share your passwords, let anyone else access your passwords or do anything else that might jeopardize the security of your passwords. You agree to notify Thimble if there is any unauthorized use of your password on this Site or if you know of any other breach of security in relation to this Site.
2.2 – Use of Site; Prohibitions
Subject to your compliance with this Agreement, Thimble hereby grants you a limited, personal, revocable, non-transferable, non-sub-licensable, and non-exclusive license to access the Site and use the content, information, text, images, graphics, interfaces, audio and video clips and any other materials displayed on the Site (collectively, the “Content”), solely for your personal, non-commercial use. You may not copy, modify, reproduce, publicly display or perform, distribute, or otherwise use the Content except as expressly set forth in this Agreement. You may not remove any copyright or other proprietary notices from any Content. If you breach any term of this Agreement, your authorization to use the Site and Content automatically terminates without notice to you.
You hereby represent and warrant that you will not, and will not induce any third party to:
3 – TERMS OF SALE
3.1 – Sales of Products and Memberships to End Users Only
Thimble sells monthly Maker Boxes (the “Product(s)”) from the Site to end-user customers who purchase monthly memberships to receive the Products (“Membership(s)”) only for their own personal, non-commercial use. You may not purchase Products or Memberships for further distribution or resale or for any other commercial or business purpose. The Membership and all rights and privileges conferred are personal and non-transferable.
3.2 – Pricing
Pricing for Products and Memberships (including any applicable shipping and handling fees) can be found on Thimble’s then-current pricing page located on the Site at: https://www.thimble.io/subscribe/terms/ The price that we will charge you for the Products and Memberships will be the price as posted on the Site on the date you first sign-up for a Membership to the Site. Thimble reserves the right to change prices for Products and Memberships at any time, and does not provide price protection or refunds in the event of promotions or price decreases.
3.3 – Refund/Cancellation Policy
If you are dissatisfied with the Product for any reason, Thimble will refund the amount paid for your most recent month of service. Refund requests must be made directly to Thimble at [email@example.com]. All refund requests must be made within 72 hours of the date of shipment by Thimble. Thimble is not liable for Products that are damaged or lost in transit to Thimble. Packages lost or returned to Thimble by the shipping service will be resent at the customer’s expense. Promptly following Thimble’s receipt of your request (typically within 3 business days), Thimble will credit the amount paid for the returned Product (less any shipping and handling and restocking costs/fees related to the original purchase, which are non-refundable) to the credit card you used to make the original purchase. Notwithstanding the foregoing, Thimble does not control when a specific credit card company processes a chargeback transaction. You are responsible for contacting your credit card company if you have questions about the status of the chargeback.
Thimble will not provide a refund for a request that is received by Thimble more than three (3) days after the date of original shipment. Thimble also does not provide a refund for returned Products that are damaged due to misuse, lack of care, mishandling, accident, abuse or other abnormal use.
3.4 – Payment Methods; Automatic Monthly Membership Renewals and Membership Cancellation Policy
Thimble accepts credit card payments only. You agree to pay all fees charged to your account based on Thimble’s fees, charges, and billing terms in effect as shown on the payment page when you first sign-up for a Membership to the Site. You are also responsible for paying any sales and use taxes and shipping and handling fees that may apply to your purchase of Products or Memberships based on the address that you provide as the shipping address when you register for a Membership, and you authorize Thimble or the third party payment processing service provider that we engage to charge your credit card for any such taxes and fees. All payments shall be made by credit card in advance prior to shipping the Products. If you do not pay on time or if your credit card cannot be charged for any reason, Thimble reserves the right to either suspend or terminate your account and Membership and terminate these Terms of Service. All sales and payments will be in US Dollars.
Thimble and Thimble’s third party payment service provider may receive updated credit card information from your credit card issuer. The disbursement of the updated credit card information is provided to Thimble and Thimble’s third party payment service provider at the election of your credit card issuer. Neither Thimble nor Thimble’s third-party payment service provider are responsible for the distribution of your credit card information. It is at the sole election of your credit card issuer. Your credit card issuer may give you the right to opt out of the update service. It is your responsibility to contact your credit card issuer with regards to your right to opt out of the update service.
IMPORTANT NOTICE TO CONSUMER:
AUTOMATIC MONTHLY MEMBERSHIP RENEWAL FEES WILL BE AUTOMATICALLY CHARGED TO YOUR CARD ON FILE EACH MONTH. Thimble will automatically renew your Membership each month during the week of your monthly anniversary date of the Membership. As authorized by you when signing up for a subscription, you are demonstrating your consent for automatic monthly renewal of your Membership . During the sign-up process, we will charge your credit card with the applicable Membership fee and any shipping and handling costs and sales or similar taxes that may be imposed on your Membership fee payments. Each Membership renewal period is for one month.”
MEMBERSHIP CANCELLATION. You may cancel your Membership at any time by logging on to your account within Thimble.io. To cancel a membership, please email [firstname.lastname@example.org]. All cancellation requests must be received by the first day of the month. Cancellation or hold requests received after the first of the month shall take effect the following month. If you have any problems, please email [email@example.com]. Thimble requires a reasonable amount of time to process your Membership cancellation request. If you cancel your Membership, you will enjoy your Membership benefits until the end of the then-current Membership term, and your Membership benefits will expire at the end of the then-current Membership term for which you have paid. You will not be eligible for a prorated refund of any portion of the Membership fees paid for any unused days of the then-current Membership term.
3.5 – Shipping and Product Acceptance
The shipment date will be determined according to whichever date is closer to the date of the Customer’s first purchase date. Shipping dates are estimates only. All shipments are sent Priority Mail or First-Class mail via the US Postal Service, DHL, and UPS. The risk of loss and title for all Products purchased via the Site pass to the Customer upon delivery of the item to the carrier.
4 – PROPRIETARY RIGHTS
You hereby acknowledge and agree that Thimble or its licensors own all legal right, title and interest in and to the Site and Content, including, without limitation, any and all intellectual property and other proprietary rights which subsist in the Site and Content, whether such rights are registered or unregistered, and wherever in the world those rights may exist.
Thimble is a trademark of Thimble and its affiliates in the United States. Other trademarks, names and logos on this Site are the property of their respective owners. Unless otherwise specified in this Agreement, all information and screens appearing on this Site, including Content, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Thimble, Copyright © 2018 Thimble, Inc. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
5 – THIRD PARTY SITES; INDEMNIFICATION
5.1 – Third Party Web Sites
5.2 – Indemnification
You hereby agree to fully defend, release, indemnify and hold harmless each of the Thimble Parties (as defined in Section below) from and against, any and all losses, liabilities, damages, and/or claims (including, without limitation, attorneys’ fees and costs) arising from your breach of this Agreement, or otherwise arising from your use or misuse of the Site, Content or Products.
6 – DISCLAIMER OF WARRANTIES
THE SITE, CONTENT, PRODUCTS AND MEMBERSHIPS ARE FURNISHED TO YOU “AS IS” AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. THIMBLE, ON BEHALF OF ITSELF AND ITS AFFILIATES, LICENSORS, SUPPLIERS AND THIRD PARTY SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “THIMBLE PARTIES”): (A) EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT REPRESENT OR WARRANT THAT THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SITE OR CONTENT WILL BE TIMELY, UNINTERRUPTED, STABLE, OR SECURE; (C) DOES NOT REPRESENT OR WARRANT THAT THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS WILL BE ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (D)DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OF THE SITE, CONTENT OR PRODUCTS IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. YOUR USE OF THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS IS ENTIRELY AT YOUR OWN DISCRETION AND RISK AND YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE, CONTENT, PRODUCTS AND MEMBERSHIPS.
THIS LIMITATION OF REMEDIES IS A PART OF THE BARGAIN BETWEEN YOU AND THIMBLE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THIMBLE OR ANY PERSON ON BEHALF OF THIMBLE SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY.
NOTHING IN THIS SECTION 9 SHALL EXCLUDE OR LIMIT THE THIMBLE PARTIES’ WARRANTIES, REPRESENTATIONS OR CONDITIONS TO THE EXTENT THEY MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH WARRANTIES, REPRESENTATIONS OR CONDITIONS WILL BE EXCLUDED AND LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
7 – LIMITATION OF LIABILITY
IN NO EVENT SHALL ANY THIMBLE PARTY BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE, LOSS OF VALUE OF THE PRODUCTS OR LOSS OF USE OF THE PRODUCTS, WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF A THIMBLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF, NOTWITHSTANDING THE FOREGOING, A THIMBLE PARTY IS FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH YOUR USE OF THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS, TO THE FULLEST EXTENT PERMISSIBLE BY LAW THE RELEVANT THIMBLE PARTY’S TOTAL CUMULATIVE LIABILITY SHALL NOT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID THIMBLE FOR THE PRODUCTS OR MEMBERSHIP, AS APPLICABLE; AND (B) THE SUM OF ONE HUNDRED US DOLLARS (US$100).
NOTHING IN THIS SECTION 10 SHALL EXCLUDE OR LIMIT ANY THIMBLE PARTY’S LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH THIMBLE PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
8 – DISPUTE AND ARBITRATION; CLASS ACTION WAIVER; CHOICE OF LAW
8. 1 – Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section (“Arbitration Agreement”) carefully. It is part of your contract with Thimble and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
i. Informal Resolution. Most customer concerns can be resolved quickly and to a customer’s satisfaction by writing to our customer service department at [firstname.lastname@example.org]. In the unlikely event that our customer service department is unable to resolve a complaint you may have to your satisfaction, the terms of this Section 8.1 govern dispute resolution between us.
ii. Applicability of Arbitration Agreement. All claims and disputes in connection with the Agreement or the use of any product or service provided by Thimble that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and Thimble, and to any of our licensors, suppliers, dealers or third party vendors, subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
iii. Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms (“Arbitration Rules”). The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. Any hearing will be held in a location within one hundred (100) miles of your residence, unless you reside outside of the United States (in which case hearing will be held in the capital of your country), and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
iv. Authority of Arbitrator. The arbitrator will decide the rights and liabilities, if any, of you and Thimble, and the dispute 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 Arbitration Rules, and the Terms. 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 Thimble.
v. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Thimble in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THIMBLE WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
vi. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court located in New York.
vii. 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 the following address: Thimble, Attn: [email@example.com] within 30 days of purchasing a Membership. If you send this notice, then the Arbitration Agreement will not apply to either party and you must litigate pursuant to subparagraph xii below. If you do not send this notice, then you agree to be bound by this Arbitration Agreement.
viii. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, 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.
ix. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Thimble.
x. Modification. Notwithstanding any provision in these terms to the contrary, we agree that if Thimble makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to the Thimble.
xi. Small Claims Court. Notwithstanding the foregoing, either you or Thimble may bring an individual action in small claims court.
xii. Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in Los Angeles County, California for such purpose.
8.2 – Choice of Law
This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of New York, without regard to its conflicts of laws rules. Foreign laws do not apply. If any provision of the Agreement is invalid under the law of a particular jurisdiction, that provision will not apply in that jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement.
9 – ELECTRONIC COMMUNICATIONS; GENERAL TERMS
9.1 – Electronic Communications
Whenever you visit our Site or send emails to us, you are communicating with us electronically. For that reason, you also consent to receive communications from us electronically. We will communicate with you by email (if you have provided your email address to us), by posting notices on our Site or by such other means as we may determine from time-to-time. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing, to the extent permitted by applicable law.
9.2 – General Terms
Thimble may issue a warning, temporarily suspend, indefinitely suspend or terminate any Customer’s right to use or access all or any part of the Site including any account thereon, without notice, for any reason in Thimble’s sole discretion, including without limitation breach of this Agreement and/or violation of the Terms of Service, Thimble’s belief that such access would violate any applicable law, rule or regulation or would be harmful to the interests of, or potentially cause financial loss or legal liability to Thimble or another user of the Site. This Agreement and the Privacy & Cookie Notice constitute the entire agreement between you and Thimble regarding its subject matter. Thimble will not be responsible for failures to fulfill any of its obligations due to causes beyond its control. The failure of Thimble to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any part of this Agreement is held invalid, illegal or unenforceable, that provision shall be enforced to the maximum extent permissible so as to maintain the intent of this Agreement, and the other parts will remain in full force and effect. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The parties shall at all times and for all purposes be deemed to be independent contractors and neither party nor its agents may bind the other party. The parties acknowledge and agree that this Agreement and all related documents that may be drawn up are only valid in the English language. This Agreement shall not be interpreted or construed to confer any rights or remedies on any third parties, except that each indemnified Thimble Party shall be a third party beneficiary hereunder. Thimble may assign or transfer its rights, or delegate any performance, under this Agreement to a third party in its sole discretion. Customer may not assign or otherwise transfer its rights, or delegate its performance, under this Agreement to any third party without in each and every case, Thimble’s express prior written consent. All terms which by their nature are intended to survive any termination of this Agreement, or any termination of your use of the Site, Content, Products or Memberships shall survive such termination.
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