Overview
This Product Purchase Agreement (the “Agreement”) is entered into by and between Thorwear, Inc., dba “Elevate Movement,” and you, the purchaser of an Elevate Movement product (defined below). Throughout this Agreement, Elevate Movement may be referred to by the terms “we,” “us,” and/or “our.” You may be referred to as “you,” “your,” and “yours.” By purchasing an Elevate Movement product, you agree to be bound by the terms and conditions of this Agreement.
IN CONSIDERATION OF THE COVENANTS and promises contained in this Agreement, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Sale of Products
1.1 Product Purchase. We will sell, transfer, and arrange for delivery to you of the products selected and purchased by you via our online e-commerce store (the “products”), hosted on the website accessible at shop.elevatemovement.com (the “site”).
1.2 Customer Account Profile. In order to purchase products from our site, you must first establish an account with us (the “Customer Account”), which you may do through a representative from our team. Your Customer Account will include, without limitation, your name, contact information, billing address, shipping address, preferred payment methods and terms, and the price we charge for each applicable product, which price(s) may be amended from time to time in our sole discretion without notice.
1.3 Product Improvements or Modifications. We reserve the right, at our sole discretion, to introduce new products and update, modify, improve, alter, replace, or discontinue any of our existing products without notice. Any new or updated, modified, improved, or altered product(s) shall also be subject to the Terms of Service.
2. Purchase Price.
2.1 Purchase Price. You agree to accept the products and pay for them at time of purchase via the site, for the amount specified in each applicable transaction, with the price for each applicable product set forth in your Customer Account (the "Purchase Price").
2.2 Payment Terms. The Purchase Price shall include, without limitation, all applicable sales, use, and/or excise taxes, as well as any fees and shipping and delivery costs associated with the products. The Purchase Price shall be paid by ACH transfer, check, or credit card, on such terms and conditions as specified in your Customer Account.
3. Delivery of Products
3.1 Shipping. Shipping and delivery terms will be as specified by you at time of purchase via our site and/or your Customer Account. We will arrange the method of shipment of your products in the manner selected by you at time of purchase and/or in your Customer Account, as provided in Section 2 of this Agreement.
3.2 Title and Risk of Loss. All products shall be shipped pursuant to the terms of your order(s), FOB our facility, and title, risk of damage, theft or other casualty loss shall pass to you upon the completion of the physical delivery and transfer of the products to the designated shipper or, in the alternative, we deliver a document of title or registrable bill of sale of the products, bearing any necessary endorsement, to you.
4. Warranties
4.1 Product Guarantee. We warrant that our products will be fit for the purpose for which such goods are ordinarily intended. All of our products are covered by the following Limited Warranty: For a period of two (2) years following date of delivery of the product(s) to you, we guarantee and warrant that our products are and will be free from defects in materials and workmanship, to include any product that has been altered in accordance with its specified Instructions for Use (IFU) to be used as sample merchandise or to be custom fit for a user. Under this Limited Warranty, we offer to either repair or replace the defective product at no charge or to credit your account for the value of the defective product. Proof of purchase with us or our authorized dealer may be required for eligibility.
4.2 Exclusions. Our Limited Warranty does not cover or include: (1) products not purchased from us or any of our authorized dealers; (2) product parts or accessories not supplied by us, which have been inserted into, or used in connection with, authorized products; or (3) products not used in accordance with the applicable specified Instructions for Use (IFU).
4.3 Return Policy. Products may be returned within six (6) months of purchase for an exchange, credit or refund. Such product(s) must be returned in original, unused, unopened condition. Returned merchandise may be processed through our authorized dealers or through us directly.
4.4 Third-Party Disclaimer. ANY AND ALL THIRD-PARTY GOODS SOLD BY US, WHICH ARE NOT MANUFACTURED BY US AS OUR PRODUCTS, ARE SOLD 'AS IS' AND ELEVATE MOVEMENT EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. We do not assume, or authorize any other person to assume on the behalf of Elevate Movement, any liability in connection with the sale of third-party goods. This disclaimer of warranties does not, in any way, affect the terms of any applicable warranties extending to the products manufactured by us.
5. Acceptance of Products
5.1 Inspection. You agree to promptly inspect any and all products you purchase pursuant to this agreement, at the time and place of delivery.
5.2 Notice and Acceptance. Your failure to give notice to us of any claim within ten (10) days from the date of delivery will constitute an unqualified acceptance of the products and a waiver by you of all claims with respect to such products, with the exception of the guarantee provided by the Limited Warranty in Section 4 of this Agreement.’
5.3 Refunds. Any refund will not include costs of delivery or installation/de-installation, which costs will be borne by you.
6. Excuse for Delay or Failure to Perform
6.1 We will not be liable in any way for any delay, non-delivery or default in shipment due to labor disputes, transportation shortage, delays in receipt of material, priorities, fires, accidents and other causes beyond the control of us or our suppliers. If we, in our sole judgment, will be prevented directly or indirectly, on account of any cause beyond our control, from delivering the product(s) at the time specified or within one month after the date of this Agreement, then we will have the right to terminate this Agreement by notice in writing to you, which notice will be accompanied by full refund of all sums paid by you pursuant to this Agreement. In all other cases, if we fail to deliver the product(s) to you within the time and manner specified at time of purchase, you may provide written notice of the default to us. If within seven (7) days of the notice being received, or within such other time period as agreed to by the parties, the default is not corrected, you may immediately terminate this Agreement and receive a full refund of all sums paid by you pursuant to this Agreement.
7. Remedies
7.1 Exclusive Remedy. Your exclusive remedy and our limit of liability for any and all losses or damages resulting from defective products or from any other cause will be for the Purchase Price of the particular delivery with respect to which losses or damages are claimed.
7.2 Limited Damages. EXCEPT FOR YOUR INFRINGEMENT OF OUR INTELLECTUAL PROPERTY RIGHTS, FOR WHICH THERE SHALL BE NO LIMITATION ON LIABILITY, AT NO TIME SHALL THE CUMULATIVE LIABILITY OF EITHER PARTY FOR ALL CLAIMS ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT IN ANY WAY, UNDER ANY THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT OF THE PURCHASE PRICE PAID TO US UNDER THIS AGREEMENT.
7.3 Limitation of Liability. In no case shall Elevate Movement, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of products procured from us or our site, or for any other claim related in any way to your use of any such product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of any product purchased by you, even if advised of their possibility.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, our liability shall be limited to the maximum extent permitted by law.
8. Term and Cancellation
8.1 Term. The term of this Agreement shall be two (2) years, beginning from the date of delivery and receipt of the products by you (“Term”).
8.2 Cancellation.
We reserve the right to cancel this Agreement and any associated product sale or order: if you fail to pay the Purchase Price when due; in the event of your insolvency or bankruptcy; or if we deem that our prospect of payment is impaired.
9. Notices
9.1 Notice to You. Any notice to be given or document to be delivered to you pursuant to this Agreement will be sufficient if sent via electronic mail, delivered personally, or sent by prepaid registered mail to the billing address specified by you at time of purchase on our site.
9.2 Notice to Us. Any notice to be given or document to be delivered to us pursuant to this Agreement will be sufficient if sent via electronic mail, delivered personally, or sent by prepaid registered mail to the following:
ThorWear, Inc., d/b/a “Elevate Movement”
5674 El Camino Real, Suite N
Carlsbad, CA 92008
hello@elevatemovement.com
(888) 504-0230
9.3 Date of Notice. Any written notice or delivery of documents will have been given, made and received on the day of delivery if delivered personally, or on the third (3rd) consecutive business day next following the date of mailing if sent by prepaid registered mail.
10. Reservation of Rights
This Agreement, and the purchase or use of any of our products, is not a sale or license of, and does not convey to you, any rights of ownership in or related to the intellectual property rights owed by Elevate Movement. Our name, our logo, and related product and service names associated with products and services we sell are trademarks and service marks of Elevate Movement and/or our business associates, vendors, or suppliers, and no right or license is granted to use them. Elevate Movement (and our licensors) shall exclusively own all right, title, and interest in and to any and all inventions, issued patents, and patent applications associated with the products. All of our material which is protected by copyright law is and shall remain the exclusive property of Elevate Movement, including modifications and derivative works thereof. We shall own any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by you or any other party relating to our products or services, including all related intellectual property rights thereto.
11. Confidentiality
11.1 Definitions. For purposes of this Section 11, a party receiving Confidential Information (as defined below) shall be the “Recipient” and the party disclosing such information shall be the “Disclosing Party.”
11.2 Confidential Information. “Confidential Information” means all financial, technical, strategic, marketing, and other information relating to the Disclosing Party or its actual or prospective business, products, or technology that may be, or has been, furnished or disclosed to Recipient by, or acquired by Recipient directly or indirectly from the Disclosing Party, whether disclosed orally or in writing or electronically or some other form, and shall include the terms and conditions and pricing information of this Agreement, and non-public information concerning Elevate Movement’s existing or prospective products and services.
11.3 Exclusions. Confidential Information does not include that which was: (i) as of the Effective Date of this Agreement, generally known to the public without breach of this Agreement; (ii) is or became generally known to the public after the date of this Agreement other than as a result of the act or omission of Recipient or Recipient’s affiliates; (iii) was already in the possession of the Recipient without any obligation of confidence; (iv) released by Disclosing Party with its written consent to third parties without restriction on use and disclosure; (v) lawfully received by Recipient from a third party without an obligation of confidence; or (vi) independently developed by Recipient outside the scope of this relationship by personnel not having access to any Confidential Information; or (vii) is required to be disclosed in accordance with a judicial or governmental order or decree, provided that the Recipient provides prompt notice of the order or decree to the Disclosing Party and reasonably cooperates with the Disclosing Party to limit the disclosure and use of the applicable information.
11.4 Notices. Recipient shall not: (i) alter or remove from any Confidential Information of the Disclosing Party any proprietary legend, or (ii) decompile, disassemble or reverse engineer the Confidential Information (and any information derived in violation of such covenant shall automatically be deemed Confidential Information owned exclusively by the Disclosing Party).
11.5 Return of Confidential Information. Upon the written request of the Disclosing Party or termination or expiration of this Agreement, and regardless of whether a dispute may exist, Recipient shall return or destroy (as instructed by Disclosing Party) all Confidential Information of Disclosing Party in its possession or control and cease all further use thereof.
11.6 Injunctive Relief. Recipient acknowledges that violation of the provisions of this Section 11 would cause irreparable harm to Disclosing Party not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief shall be available without the necessity of posting bond to prevent any actual or threatened violation of such provisions.
12. Indemnification
12.1 You agree to indemnify, defend and hold harmless Thorwear Inc. dba “Elevate Movement” and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of this Agreement the documents they incorporate by reference, or your violation of any law or the rights of a third-party.
13. General
13.1 Headings. Headings are inserted for convenience only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa.
13.2 Survival. All representations and warranties of Elevate Movement contained in this Agreement, as well as the terms of Sections 10 through 12, will survive the Term of this Agreement.
13.3 No Assignment. You may not assign its right or delegate your performance under this Agreement without our prior written consent, and any attempted assignment or delegation without such consent will be void. An assignment would change the duty imposed by this Agreement, would increase the burden or risk involved and would impair the chance of obtaining performance or payment of the Purchase Price.
13.4 No Modifications. This Agreement cannot be modified in any way except in writing signed by all the parties to this Agreement.
13.5 Governing Law. This Agreement and any separate agreements whereby we provide you products shall be governed by and construed in accordance with the federal and state laws of United States and the State of California. If any legal action is necessary to enforce the terms and conditions of this Agreement, you and Elevate Movement agree that the state and federal courts located in State of California, County of San Diego shall be the sole venue and jurisdiction for the bringing of such action. You consent to the exclusive personal jurisdiction of such courts and waive any defense of forum non conveniens. Further, the prevailing party to any such dispute shall be entitled to recover its reasonable attorneys’ fees and costs from the non-prevailing party. Any cause of action you may have with respect to your use of the site must be commenced within one (1) year after the claim or cause of action arises.
13.6 Severability. If any clause of this Agreement is held unconscionable by any court of competent jurisdiction, arbitration panel or other official finder of fact, the clause will be deleted from this Agreement and the balance of this Agreement will remain in full force and effect.
13.7 Successors. This Agreement will inure to the benefit of and be binding upon you and Elevate Movement and each party’s respective successors and assigns.
13.8 Entire Agreement. This Agreement constitutes the entire agreement between the parties and there are no further items or provisions, either oral or otherwise. You acknowledge that you have not relied upon any representations of us as to prospective performance of the products, but you have instead relied upon your own inspection and investigation of the subject matter.
