These terms of sale (the “Terms”) apply to all orders accepted by ThetaCalm LLC. (“ThetaCalm”) for the sale of athletic headset products (the “ThetaCalm Device”), except in the case that you and ThetaCalm have executed a written agreement that supersedes these Terms.
For purposes of these Terms, the terms “we,” “us” and “our” refer to ThetaCalm. “You” refers to you, as a user of the ThetaCalm Device.
By placing an order, you agree that: (i) any credit card information supplied by you is true and complete; and (ii) you will pay the applicable price listed.
2. Products and Services
Each order of a ThetaCalm Device shall include the products described on the ThetaCalm Site at www.ThetaCalm.com/Shop.
Prices listed through the ThetaCalm Site are stated in U.S. dollars, and include shipping and handling charges applicable to delivery to U.S. addresses. The listed prices do not include any customs, duties, fees, taxes or other charges that may be applicable if shipping is requested to an address outside the United States. You agree to indemnify and hold ThetaCalm harmless from and against any liabilities, interest, penalties or fees assessed against ThetaCalm arising from your failure to pay any such charges. All prices are subject to change at any time.
All orders are subject to acceptance by ThetaCalm. After you place an order, you will receive an email from ThetaCalm confirming that ThetaCalm has received and accepted it. ThetaCalm reserves the right not to accept your order for any reason or no reason.
ThetaCalm will pack the ThetaCalm Devices in accordance with its standard practices. Title to the ThetaCalm Devices and risk of loss will pass to you upon ThetaCalm’s delivery of the ThetaCalm Device to the carrier. You acknowledge that all scheduled shipment dates are estimates only. ThetaCalm will make reasonable efforts to meet the scheduled shipment dates, but in no event will ThetaCalm be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery. For all pre-orders, ThetaCalm will send you an e-mail when ThetaCalm ships out the ThetaCalm Device.
If you place an order for a ThetaCalm Device that is a pre-order, you may cancel your pre-order prior to shipping and we will refund the amount charged to your card. We offer a 30-day money back guarantee. If you are not completely satisfied with the ThetaCalm Device, you can return it within 30 days of shipment to request a full product refund.
7. Limitation of Liability
IN NO EVENT SHALL THETACALM BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, LIQUIDATED, OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA, PROFIT OR GOODWILL, OR DUE TO BUSINESS INTERRUPTION, UNAUTHORIZED ACCESS OR OTHER INTANGIBLE LOSSES), IN CONNECTION WITH THESE TERMS, SALE, USE, OPERATION OR PERFORMANCE OF THE THETACALM DEVICES, REGARDLESS OF LEGAL THEORY (INCLUDING NEGLIGENCE), EVEN IF THETACALM KNEW OR WAS NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL THETACALM’S LIABILITY TO YOU ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE ACTUAL AMOUNT PAID TO THETACALM BY YOU FOR THE THETACALM DEVICE.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of ThetaCalm shall be limited to the fullest extent permitted by law. THEREFORE, THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
8. Dispute Resolution and Governing Law
- Informal Negotiations. To expedite resolution and control the cost of any dispute, controversy or claim related to these Terms (“Dispute”), you and ThetaCalm agree to first attempt to negotiate any Dispute (except those Disputes expressly provided in Section 8.D below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other. ThetaCalm will send its notice to your shipping address and email you a copy to the email address you have provided to us. You will send your notice to ThetaCalm LLC 1333 W. McDermott Drive Suite 150 Allen, TX 75013; or by email to info@ThetaCalm.com.
- Binding Arbitration. If you and ThetaCalm are unable to resolve a Dispute through informal negotiations, either you or ThetaCalm may elect to have the Dispute (except those Disputes expressly excluded in Section 8.D below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be administered by the International Institute for Conflict Prevention and Resolution (“CPR”), in accordance with the CPR Rules for Administered Arbitration by a panel of three (3) arbitrators, of whom each party shall designate one, with the third arbitrator to be designated by the two (2) party-appointed arbitrators. Such arbitration shall be conducted in San Francisco, Delaware in the English language. The arbitrators shall establish procedures under which each party will be entitled to conduct discovery and shall award to the prevailing party in any such dispute the costs and expenses of the proceeding, including reasonable attorneys’ fees. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§1 et. seq., and except as set forth below, the arbitral award shall be final, binding and incontestable and judgment thereon may be entered in any court of competent jurisdiction. The arbitrators shall award only such damages as are permitted to be awarded pursuant to these Terms, each party expressly waives and foregoes any right to punitive, exemplary or similar damages unless applicable law prohibits such waiver. The arbitrators must render their award within thirty (30) days following the last hearing scheduled by the arbitrators and at that time state the reasons for their award in writing. An appeal may be taken under the CPR Arbitration Appeal Procedure from any final award of an arbitral panel in any arbitration arising out of or related to these Terms that is conducted in accordance with such procedure. Unless otherwise agreed by the parties and the appeal tribunal, the appeal shall be conducted at the place of the original arbitration.
- Restrictions. You and ThetaCalm agree that any arbitration shall be limited to the Dispute between ThetaCalm and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. Any Dispute not subject to arbitration, or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction within the County of San Francisco, State of Delaware, United States of America, and you hereby agree to submit to the personal jurisdiction of that court.
- Exceptions to Informal Negotiations and Arbitration. You and ThetaCalm agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or ThetaCalm’s intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief.
9. Governing Law
Except as expressly stated otherwise, these Terms shall be governed by, and will be construed under, the laws of the United States of America and the law of the State of Delaware, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
10. General Provisions
- Assignment. You may not assign these Terms or any order accepted by ThetaCalm hereunder and any attempt to the contrary is void.
- Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
- Force Majeure. ThetaCalm will not be responsible for any failure or delay in its performance under these Terms due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or acts of God.
- No Waiver. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
- Entire Agreement. These Terms are the complete and exclusive statement of the agreement between you and ThetaCalm concerning its subject matter, and these Terms supersede any prior or contemporaneous agreement, either oral or written, and any other communications with regard thereto between you and ThetaCalm.
- Headings. The section headings used herein are for reference only and shall not be read to have any legal effect.
If you have any questions on these Terms, please contact us at firstname.lastname@example.org.