Effective Date: 02/07/2019
By agreeing to the Agreement, you represent and warrant to us that: (a) you are at least 18 years old (or at least 13 years old and your parent or guardian has agreed to the Agreement on your behalf) and have the legal capacity to contract, (b) you have not previously been suspended or removed from any Services, and (c) your registration and your use of the Services is and will comply with all applicable laws and regulations.
Please note that by using the Services you (or, if applicable, your parent or guardian on your behalf) enter a legally binding contract with Thinx based on the Terms (as updated from time to time). FURTHER THESE TERMS INCLUDE PROVISIONS (DESCRIBED IN MORE DETAIL BELOW) THAT LIMIT OUR LIABILITY AND REQUIRE INDIVIDUAL ARBITRATION FOR ANY POTENTIAL LEGAL DISPUTE.
Products availability and shopping terms
We reserve the right to refuse any order you place with us for any reason. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order and purchases from any geography or jurisdiction. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In addition, products may have limited quantities and are subject to return or exchange only according to our return policy. We may exercise this right on a case-by-case basis. In the event we make a change to or cancel an order, we will attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We may request additional information or documents from you in order to confirm that you are the holder of the payment instrument that was used to place the order, or are otherwise authorized to place the order. If you do not reply to our request for information or documents, we reserve the right to cancel your order.
To place an order through the Services, you must be of legal age in your country and a consumer - not a reseller. The Services are intended solely for Thinx to sell Thinx products direct to end-consumers, and therefore purchase of products for resale is strictly prohibited. Purchase for resale means the purchase of a Thinx product by someone who resells, or intends to resell, the Thinx product to others (consumers, businesses or any third party). If Thinx determines (in our sole judgment) that you are involved in purchase for resale, Thinx reserves to take any action against you, including, without limitation, to restrict sales to you, cancel your orders, and/or suspend or close your account.
All descriptions of products or product pricing are subject to change at anytime without notice, at the sole discretion of us. We reserve the right to change the goods advertised or offered for sale through Thinx Services, the prices or specifications of any such goods and any promotional offers and any content available on the Services at any time and from time to time without any notice or liability to you or any other person. Any offer for any product or service made on the Services is void where prohibited.
Additional e-commerce terms and conditions relating to refund, exchange, re-stocking, taxes, shipping may be provided at or near the point of purchase.
Without limiting any the foregoing and subject to applicable law we reserve the right to cancel orders (always with notice to the extent required by law) without liability (other than repayment of any amounts received from you in relation to the cancelled order) if: your billing information is not correct or not verifiable; your order is identified as an unusual order or an order susceptible to fraud; payment is not received within a reasonable period following acceptance of your order; we believe that you are a reseller; there was an error in the price displayed on the Services; we could not deliver to the address provided by you; due to an event of force majeure; or in the event of misspelling, pricing or other errors or mistakes in the Services information.
All products purchased from the Services are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier. Any products purchased from Thinx via the Services and shipped internationally via UPS will be imported by Thinx on your behalf. Accordingly, you as buyer authorize Thinx to import such products on your behalf. Further, you agree that Thinx may delegate the obligation to import the products to a subcontractor (e.g. customs broker). Unless otherwise specified you are responsible for paying any taxes or duties associated with the importation of the purchased products in addition to the purchase price.
Product Warranty and Returns
[It is Thinx’s policy to replace defective product within a one year time frame from the date of purchase. This does not affect your statutory rights. In the event your claim is justified, the purchase price and the shipping costs will be refunded. Refunds will be issued based on the original form of payment.]
Except in connection with nonrefundable purchases (such as final sale items, Thinx “merch”, and gift cards) or as otherwise stated to the contrary herein or during the check-out process, you have the right to return or exchange an order at any time within sixty (60) days of the purchase date. If you exercise your right of return or exchange, you will be responsible for returning the goods to us promptly in their original condition. You can request a return or exchange via returns.shethinx.com. To the fullest extent permitted by applicable law Thinx reserves the right to (a) limit the number of returns or exchanges you may successfully request and (b) void or reject any return or exchange request in the event that fraud, violation of these Terms or any other inappropriate activity is suspected (as determined by Thinx in its sole discretion).
The Services and the content residing thereon are owned by Thinx or its affiliates or business partners, or are used by us with express permission. Such content includes the text, software, scripts, graphics, photos, sounds, interactive features, visual interfaces, design, compilation, information, data, computer code (including source code or object code), products, services, and the trademarks, service marks, trade names, and logos (“Marks”) contained in the Services (collectively, “Thinx Content”). Unless otherwise noted, the Services and Thinx Content included on the Services, including images, illustrations, designs, icons, photographs, video clips and written and other materials, are subject to copyright, trademark, and other intellectual property rights under United States law, the law of the jurisdiction where you reside, and international conventions protected by United States and international copyright laws. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including rights in and to all applications and registrations relating to Thinx or the Services will, as between you and Thinx, be and remain the sole and exclusive property of Thinx. You may not display or reproduce the Marks in any manner without the prior written consent of Thinx, and you may not remove or otherwise modify in any manner any trademark notices from any content offered or received through the Services.
Following termination of your account Thinx may retain User Submissions for backup, archival, audit or legal purposes to the extent permitted by law. Furthermore, Thinx may retain and continue to use, store, display, reproduce, share, modify, create derivative works, perform, and distribute any of User Submissions that otherwise has been stored or shared through the Services. Accordingly, note that the above license to your User Submissions continues even if you stop using the Services.
Limited license + services access
The Services are licensed, not sold, to you for use only under the terms of the Agreement. Subject to your compliance with the terms and conditions of the Agreement, Thinx grants you a limited, revocable, non-transferable license to access and use the Services and Thinx Content for your own personal, noncommercial purposes provided that you do not (nor permit any third party in your control to):
copy, modify, create a derivative work from, reverse engineer, sell, assign, sublicense, attempt to derive the source code of, grant a security interest in, or otherwise commercially exploit any right in or portion of the Services or Thinx Content;
use the Services to sell a product or service, increase traffic to your own website or a third-party website for commercial reasons, such as advertising sales, or otherwise undertake any endeavor aimed at deriving revenue;
access, monitor, scrape, or copy (via, for example, deep-link or any robot, spider, web crawler, extraction software, automated process, or other device) any Services data or material and/or incorporate it into a separate database, archive/cache it, etc.
Accounts and passwords
If you use the Services and such use requires setting up an account and/or password(s), you are solely responsible for maintaining the confidentiality of your account and password(s) and for restricting access to your computer. If you open an account, register, or provide us with any information, you agree to complete the account initiation, registration, or other process by providing us with current, complete, and accurate information as requested by any forms. Thinx is not responsible for any errors or delays in responding to any inquiry or request caused by any incorrect, outdated, or incorrect information provided by you or any technical problems beyond the control or Thinx. You acknowledge and agree that any login, identifier, or password issued in connection with the Services (each a “Password”) is confidential information. You must maintain the confidentiality of any Password, and you may not disclose such Password to any other person or entity or permit any other person or entity to access the Services using such Password. You agree to notify Thinx immediately of any unauthorized use of any Password that is not issued directly to you or approved by us.
Upon termination of your account you agree that: (a) any use rights or licenses provided to you under the Agreement will end, and (b) except to the extent prohibited by applicable law Thinx may (but have no obligation to) permanently destroy all information associated with your or your account stored on servers controlled by Thinx. Thinx is not liable to you or any third party for compensation, reimbursement, or damages in connection with any termination or suspension of the Services or any deletion of information associated with you or your account. Upon termination those terms that by their nature are intended to survive termination (such as intellectual property ownership, arbitration obligations, indemnification obligations, limitations of liability, and payment obligations owed to Thinx that accrued prior to the termination and any other amounts owed by you under the Agreement, including claims, fines, penalties, and other liability incurred by Thinx caused by your use of the Services) will survive.
Content you may submit to Thinx
From time to time Thinx may make available on the Services bulletin boards, chat rooms, comment areas, billboards, forums, news groups, postings sections or similar communications facilities. These functions may enable you and others to submit content, such as reviews, images and postings, including other users posting content to your account and the posting of data drawn from third party services (such as Facebook) in connection with the Services (“User Content”). Submissions of User Content by visitors to certain parts of the Services may be public and posted in public areas. User Content is intended to enhance the experience of the Services, however, it should not be understood as to be endorsed by or necessarily represent the views of Thinx. Thinx disclaims any duty to review or modify User Content, and any responsibility for either the effects of harmful files, such as malware, that may be contained in that User Content, or for conduct by users or any third parties in connection with User Content submitted by them or you. Thinx (without promising to do so) may decide it is in Thinx’s best interests to block, remove, modify, or simply not post any User Content, including reviews or ratings, for any reason determined by Thinx in its sole discretion at any time and may not notify you if it does so. If you decide to submit User Content, you promise you have the right to provide that User Content, which means: you are the creator and owner of the User Content, or the User Content is not protected by copyright law, or you have express permission from the copyright owner to use the User Content in connection with the Services; and you have the necessary licenses, rights, consents, and permissions to authorize Thinx and users of the Services to use and distribute your User Content as necessary to exercise the licenses granted by you in these Terms.
You: (a) agree that any User Content you provide in may be read, collected, and used by others who access the User Content, (b) agree to indemnify Thinx and its indirect or direct subsidiary, parent, or affiliate companies or any of their employees, officers, directors, licensors, and agents (collectively, with Thinx, the “Thinx Entities”) from all claims relating to your User Content, and (c) to the fullest extent permitted by applicable law, irrevocably waive, and cause to be waived, any claims and assertions of moral rights or attribution regarding your User Content brought against the Thinx Entities and our and their users to the extent relating to use of the User Content for the Services or as otherwise expressly permitted under the Agreement. If you feel that User Content should be removed, please let us know, and Thinx has the right, but not the obligation, to review such User Content, and ultimately it will be Thinx’s decision (subject to any countervailing laws) on whether to take any action related to your request.
If you are accessing the Services as a minor with the consent of a guardian, you may submit a request to delete or anonymize information you post to the Services by emailing firstname.lastname@example.org. Notwithstanding the foregoing, it may not be possible to completely and comprehensively remove all of your User Content from the Services.
You understand that when using the Services you may be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. We expressly disclaim all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to the Agreement, we may investigate the allegation and User Content in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Thinx does not permit copyright-infringing activities on the Services.
Digital millennium copyright act
Thinx expects all users to respect the intellectual property rights of others. Thinx may remove material that appears in its sole discretion to infringe upon the intellectual property rights of others and we will terminate the access rights of any repeat infringer.
If you believe an issue copyright infringement should be brought to our attention, please provide us with the following information:
-identification of the work or material being infringed;
-a description of the material that you claim is infringing, including its location, with sufficient detail so that we are capable of finding it and verifying its existence;
-your name, address, telephone number, and email address;
-a statement that you have a good faith belief that the use of those materials on the Services is not authorized by the copyright owner, its agent, or the law; and
-a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Your notice must be signed (electronically or physically) and addressed as follows:
ATTN: Copyright Agent
PO Box 158
Eastchester NY 10709
We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You provide your personal information at your own risk.
Your dealings with third parties
The Services may contain links to third party websites, enable you to log in to the Services via various online third-party services, or display advertisements and promotional material of goods and services offered by third parties (“Third Party Services”). By linking or otherwise displaying information from or providing access to any Third Party Services, Thinx gives no representation, warranty, or endorsement, express or implied, regarding the legality, accuracy, quality, or authenticity of content, information, products or services provided by those Third Party Services. Further, the way Third Party Services (including social networking services) use, store, and disclose your information is governed solely by the policies of those Third Party Services, and we have no liability or responsibility for the privacy practices or other actions of any third-party website or service that may be enabled within the Services. Conduct any diligence you feel necessary before engaging online or offline with any of these third parties. Thinx disclaims all responsibility or liability for any harm resulting from your use of Third Party Services, including harm relating to payment, delivery or performance of related goods or services, and you irrevocably waive any claim against Thinx regarding the content, products or operation of any Third Party Services.
Disclaimer of warranties
EXCEPT AS OTHERWISE EXPLICITLY STATED HEREIN THE SERVICES AND ALL CONTENT OR INFORMATION CONTAINED ON THE SERVICES, INCLUDING TEXT, GRAPHICS, LINKS, AND INFORMATION PROVIDED ON THE SERVICES ABOUT THE PRODUCTS SHOWN FOR SALE, AS WELL AS THE PRODUCTS THAT ARE PURCHASED FROM THE SERVICES, ARE PROVIDED ON AN “AS IS” BASIS WITHOUT REPRESENTATION OR WARRANTY. TO THE FULLEST EXTENT PERMITTED BY LAW, Thinx EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, Thinx DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR CONTENT ACCESSIBLE VIA THIS SERVICES IS ACCURATE, TIMELY, COMPLETE, OR CURRENT, AND YOU MAY NOT RELY ON THE SERVICES OR CONTENT.
In addition, User Content, including advice, statements, or other information is not produced by Thinx, and should not be relied on without independent verification. User Content, whether publicly posted or privately transmitted, is the sole responsibility of the user from whom such User Content originated.
To the fullest extent permitted by applicable law, we do not warrant that (i) the Services will meet your requirements, (ii) the operation of the Services will be uninterrupted, virus- or error-free or free from other harmful elements, (iii) product descriptions, photographs, videos or other product related content on the Services are accurate, complete, reliable, current, or error-free or (iv) errors will be corrected. No advice or information, whether oral or written, obtained from other users or through the Services, will create any warranty not expressly made herein. You therefore expressly acknowledge and agree that use of the Services is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you.
SOME JURISDICTIONS (SUCH AS NEW JERSEY) MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND CONDITIONS IN SOME CASES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Limitation of liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE Thinx ENTITIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (B) LOSS OF PROFITS, REVENUE, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES; (C) DAMAGES RELATING TO YOUR ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE SERVICES; (D) DAMAGES RELATING TO ANY CONDUCT OR CONTENT OF ANY THIRD PARTY OR USER USING THE SERVICES, INCLUDING WITHOUT LIMITATION, DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OR CONTENT; (E) DAMAGES IN ANY MANNER RELATING TO ANY THIRD PARTY SERVICES ACCESSED VIA THE SERVICES; AND/OR (F) DAMAGES RELATING TO ANY UNAUTHORIZED ACCESS TO OR USE OF Thinx’S SYSTEMS OR ANY AND ALL PERSONAL INFORMATION OR FINANCIAL INFORMATION STORED ON THOSE SYSTEMS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THIS LIMITATION APPLIES TO ALL CLAIMS, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT Thinx HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND FURTHER WHERE A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
EXCEPT AS PROVIDED IN THE ARBITRATION SECTION OF THESE TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF THE Thinx ENTITIES, FOR ANY CLAIM UNDER THESE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE GREATER OF FIVE HUNDRED DOLLARS (US $500.00) OR THE AMOUNT YOU PAID US IN CONNECTION WITH YOUR USE OF THE APPLICABLE SERVICE(S) DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
To the fullest extent permitted by applicable law, you acknowledge and agree that we offer the Services and any goods and services offered on the Services in reliance upon the warranty disclaimers, releases, and limitations of liability set forth in the Terms. To the extent permitted by applicable law, you also acknowledge and agree that these warranty disclaimers, releases, and limitations of liability reflect a reasonable and fair allocation of risk between you and us and that these warranty disclaimers, releases, and limitations of liability form an essential basis of the bargain between you and us. We would not be able to provide the Services to you on an economically reasonable basis without these warranty disclaimers, releases, and limitations of liability.
If you are a resident of California: You waive your rights with respect to California Civil Code Section 1542, which says “a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, YOU ALSO WAIVE ANY PROTECTION THAT MAY EXIST UNDER ANY COMPARABLE OR SIMILAR STATUTES OR PRINCIPLES OF COMMON LAW APPLICABLE IN JURISDICTIONS OTHER THAN CALIFORNIA.
If you are a resident of New Jersey: Notwithstanding anything herein to the contrary, nothing in these Terms limits or excludes our responsibility for losses or damages caused by Thinx's own fraud, recklessness, gross negligence or willful misconduct.
If you are a resident of New Jersey: Notwithstanding anything herein to the contrary, nothing in these Terms imposes an obligation for you to indemnify us from claims arising out of Thinx's own fraud, recklessness, gross negligence or willful misconduct.
Notwithstanding any of these Terms, we reserve the right, without notice or attendant liability, and in our sole discretion, to terminate or suspend your account or right to use these Services, and to block or prevent future your access to and use of the Services for any reason or no reason.
These Terms and the relationship between you and Thinx shall be governed by the laws of the State of New York as if you signed these Terms in New York. The provisions of these Terms that conflict with or are inconsistent with applicable governing law will be superseded and/or modified by such applicable law only to the extent such provisions are inconsistent.
Consent to arbitrate and class action waiver
To the fullest extent permitted by applicable law, you and Thinx agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Except where prohibited, you and we agree to submit to the personal and exclusive arbitration of disputes relating to your general use of the Services under the rules of the American Arbitration Association (“AAA”). Please visit www.adr.org for more information about arbitration.
Nothing in the Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the federal, state, provincial or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified mail, or by Federal Express (signature required) or, only if the other party has not provided a current physical address, then by electronic mail (“Notice”). The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Thinx may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Thinx must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Thinx will pay you the highest of: (a) the amount awarded by the arbitrator, if any; (b) the last written settlement amount offered by Thinx in settlement of the dispute prior to the arbitrator’s award; or (c) $1,000.
Any arbitration hearing will take place at a location to be agreed upon in New York County, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedure), then the payment of all fees will be governed by the AAA rules. In that case, you will reimburse Thinx for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA rules. Regardless of how the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
You also acknowledge and understand that, with respect to any dispute between you and Thinx, suppliers or licensors (or their respective affiliates, agents, directors or employees), including any claims relating in any way to these Terms or the Services, or any other aspect of our relationship: (a) You are giving up your right to have a trial by jury; (b) You are giving up your right 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 involving any such dispute; and (c) any action or proceeding by you relating to such dispute must commence within one year after the cause of action accrues or it is forever barred.
If Thinx changes this arbitration provision, you may reject the change by sending Thinx written notice within 30 days of the change, in which case your account with Thinx will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. If all or any part of this arbitration section is found to be unenforceable, then the remaining provisions of these Terms will remain in effect under the “Severability” clause below, and the exclusive jurisdiction and venue described above will govern any action arising out of or related to the Agreement.
This agreement to arbitrate will not preclude you or Thinx from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude you or Thinx from (i) applying to the appropriate court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, or (ii) seeking relief in any state or federal court for disputes related to a violation or possible violation of Thinx's intellectual property rights.
If this arbitration provision is found to be null and void, then all disputes arising under the Terms between us will be subject to the jurisdiction of the state and federal courts located in New York, New York, and you and we hereby submit to the personal jurisdiction and venue of these courts. In the event of any litigation or arbitration arising from or related to the Agreement, or the Services provided, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred including staff time, court costs, attorneys' fees, and all other related expenses incurred in such litigation or arbitration.
If you are a resident of the European Union, then notwithstanding anything in these Terms to the contrary, if there is a dispute that you and Thinx cannot resolve, you have the right to submit a complaint through http://ec.europa.eu/consumers/odr. In addition, nothing in these Terms limits your rights to bring an action against Thinx in the local courts of your place of domicile. All disputes arising under the Terms between you and Thinx will be subject to the non-exclusive jurisdiction of the courts located in your place of domicile, or the courts located in the Netherlands, and you and we hereby submit to the personal jurisdiction and venue of these courts.
If you are not a United States resident and you are accessing our Services from outside the United States, you agree to transfer certain information outside your home country to us (and that your information may be stored and processed in the United States), that if you are using the Services from a country embargoed by the United States, or are on the United States Treasury Department's list of "Specially Designated Nationals," you are not authorized to access or make use of the Services, and that you will follow all the local laws, rules and regulations that apply to you.
If you are a resident of the European Union or South Korea: Notwithstanding anything in these Terms to the contrary, please note that certain jurisdictions may not allow the waiver or limitation of certain warranties, liabilities or damages under mandatory law, so some of the exclusions and limitations in these Terms may not apply to you. Nothing in these Terms limits or excludes our responsibility for (1) fraudulent representations made by us, (2) death or personal injury caused by our negligence or willful misconduct, or (3) non-execution of any material contractual obligation.
If you are a resident of Germany, France, Austria or Finland: Notwithstanding anything in these Terms to the contrary, the qualifier "to the fullest extent permitted by law" (and other qualifiers of similar effect) wherever it appears in the Terms shall be deemed deleted and have no force and effect.
Modifications and service monitoring
Thinx may amend the Terms at any time with notice that we deem to be reasonable under the circumstances (each a “Revised Version”) by (i) posting revised Terms via the Services, and/or (ii) notifying you of material changes, generally via email where practicable, and otherwise through the Services (such as through a notification on the Thinx Sites or Apps). The Revised Version will be effective as of the time it is communicated, but will not apply retroactively. Your continued use of the Services after the posting of a Revised Version constitutes your acceptance of such Revised Version. Any dispute between the parties that arose before the effective date of a Revised Version is governed by the Terms (including the binding individual arbitration clause) that was in place when the dispute arose.
Thinx will not be liable or responsible to you, nor be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement when and if failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Thinx including acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes, or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Severability and waiver
If any of these Terms shall be deemed invalid, void, or for any reason unenforceable, that term shall be deemed severable and shall not affect the validity and enforceability of any remaining term or condition. No waiver by any party of any of the Agreement will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will operate or be construed as a waiver thereof, nor will any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise thereof or exercising any other right, remedy, power, or privilege. NOTHING IN THE AGREEMENT WILL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
Thinx may provide disclosures and notices regarding the Services, the Agreement, or your account to you electronically by posting it to one of the Sites, or by emailing it to an email address listed in your user account. Those electronic disclosures and notices will have the same meaning and effect as if you were provided with physical copies. Those disclosures and notices are considered received by you within 48 hours of the time posted or emailed to you unless Thinx receives notice of non-delivery. Review the applicable Site or App regularly to review the prevailing disclosures and notices and check for updates. You will keep email address(es) valid and active and to monitor your email account(s). Thinx will not be liable to you or any third party for any losses resulting from your failure to comply with the foregoing. To withdraw consent to receiving disclosures and notices electronically, contact email@example.com.
You consent to accept and receive communications from us, including e-mail, text messages, calls, and push notifications to the cellular telephone number you provide to us. Standard message and data rates applied by your cell phone carrier may apply to the text messages we send you. You may opt-out of receiving communications by following the unsubscribe options we provide to you in those communications. You acknowledge that opting out of receiving communications may impact your use of the Services.
These Terms constitute the entire agreement between the user and Thinx with respect to the Services and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written with respect to the Services. A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Any rights not expressly granted herein are reserved. You may not transfer or assign your account or your obligations under the Agreement without Thinx’s prior written consent. Thinx may transfer or assign any or all part of its rights under the Agreement without restriction and and has the right to delegate or use third-party contractors to fulfill our duties and obligations under these Terms and in connection with the Services.