Fresair Shop Terms of Use

Last updated: September 21, 2020..

Fresair LLC. and/or its affiliates (“Fresair”, “we” or “us”) operate an online store (“Fresair Shop”) located at fresair.com/shop from which you may purchase products and services (“Fresair Shop Products”).

These Terms of Use apply to the content and functionality of the Fresair Shop, and to the Fresair Shop Products.

1. Information that you provide to us

You may give us information about yourself when you visit the Fresair Shop. Our Privacy Policy explains our practices with respect to that information. We may need to send you email and text messages in order to, for example, verify your identity or provide you with important information. You authorize us to send those messages when you visit the Stripe Shop and provide your contact details. Standard text or data charges may apply to text messages. Where offered, you may disable text message notifications by responding to any such message with “STOP”, or by following instructions provided in the message. However, by disabling text messaging, you may be disabling important security controls and may increase the risk of loss to your business.

2. Fresair Shop IP

As between you and Fresair, Fresair and its licensors exclusively own all rights, title, and interest in the patents, copyrights (including rights in derivative works), moral rights, rights of publicity, trademarks or service marks, logos and designs, trade secrets, and other intellectual property embodied by, or contained in the Fresair Shop (collectively, “Fresair Shop IP”). Fresair Shop IP is protected by copyright, trade secret, patent, and other intellectual property laws, and all rights in Fresair Shop IP not expressly granted to you in these Terms of Use are reserved.

You may choose to or we may invite you to submit comments or ideas about improvements to the Fresair Shop or our products or services (“Ideas”). If you submit an Idea to us, we will presume that your submission was voluntary, unsolicited by us, and delivered to us without any restrictions on our use of the Idea. You also agree that Fresair has no fiduciary or any other obligation to you in connection with any Idea you submit to us, and that we are free to use your Ideas without any attribution or compensation to you.

3. Access to Fresair Shop

Fresair grants you a limited, revocable, non-exclusive, non-transferable license to access the Fresair Shop. This license does not include a right to use any of the content and information, including product listings. Our Marks Usage Agreement sets out the terms and conditions that apply to your use of our logos. Your permissions and/or licenses are automatically terminated by any unauthorized use.

4. Products, Content and Specifications.

Details of the products and services available for purchase in the Fresair Shop (“Fresair Shop Products”) are set out in the Fresair Shop. All features, content, specifications, products and prices of products and services described or depicted in this Fresair Shop are subject to change at any time without notice. Unless expressly noted, all weights, measures and similar descriptions are approximate and are provided for convenience purposes only. Packaging may vary from that shown, and the appearance of a product in reality may differ from its appearance to you on the Fresair Shop due to the limitations of the systems that you use to access the Fresair Shop. The inclusion of any products or services in the Fresair Shop at a particular time does not imply or warrant that these products or services will be available at any time. Occasionally, the manufacture or distribution of a certain product or service may be delayed for a number of reasons. In such event, we will make reasonable efforts to notify you of the delay and keep you informed of the revised delivery schedule. By placing an order, you represent that the products ordered will be used only in a lawful manner.

5. Subscriptions

a. Subscription terms. We may offer you the ability to purchase subscriptions via the Fresair Shop. Terms specific to a subscription will be disclosed to you at or prior to the time at which you purchase the subscription, and by purchasing the subscription you are agreeing to those terms.

b. Free trials and promotional periods. If a subscription commences with a free trial or a promotional period, you will have the right to cancel the subscription prior to the end of the trial or period. If we do not provide you with an online cancellation mechanism, then you may exercise this cancellation right by contacting us. We will email you prior to the end of the free trial or promotional period to remind you that the trial or period is coming to an end, and to give you an opportunity to cancel before the commencement of the paid period. If you do not cancel, we will bill you at the end of the free trial or promotional period, and your subsequent cancellation rights will be in accordance with the terms specific to the subscription.

c. Cancellation. Your cancellation rights, and the mechanism via which you may notify us of your decision to cancel, will be disclosed to you at or prior to the time at which you purchase a subscription.

6. Your account

We may require that you create an account to access the Fresair Shop, including to make purchases. If we do so, you must provide accurate information about yourself when you create an account and ensure that you update us if that information changes. You must ensure that your login details remain confidential. You are responsible for any activity, including any purchases made, under your account. We reserve the right to terminate your account at any time and for any reason.

7. Shipping and returns

This Section 7 applies to Fresair Shop Products that are physical goods. For clarity, this Section 7 applies despite any contrary terms in any invoice or purchase order.

Orders are shipped using carriers selected by Fresair. The shipping fees you will be charged, if any, will be provided to you before you confirm your order. If we provide you with an estimated shipping date, the estimated delivery date is not guaranteed, and inventory shortages or events beyond our control could impact the delivery date. Fresair is not liable for delivery later than the estimated delivery date, or for any loss, damage, or penalty you may incur from a delay in shipment or delivery. Unless otherwise noted in the product description, each Fresair Shop Product will be delivered FCA delivery location (as such location is designated on the applicable order) (Incoterms 2010).

Unless otherwise noted in the product description, Fresair Shop Products may be returned in their original packaging and condition (including all accessories and components provided) within 30 days of purchase. However, unless we tell you otherwise, you will only be entitled to a refund if we provide you with an item that is defective or does not match the product description of the item that you purchased. If that occurs, your exclusive remedy is to return the item in unused condition, in exchange for a refund. To begin the return process, please contact us. Return shipping instructions will be provided. Fresair will refund your purchase price in full upon receipt and inspection of the returned product. Return shipping costs are your responsibility unless otherwise agreed to by Fresair.

8. Sanctions and export policy

You may not use the Fresair Shop or purchase any Fresair Shop Product in or for the benefit of a country, organization, entity, or person embargoed or blocked by any government, including those on sanctions lists identified by the United States Office of Foreign Asset Control (OFAC). We do not claim, and we cannot guarantee that the Fresair Shop or any Fresair Shop Product is or will be appropriate or available for any location or jurisdiction, comply with the laws of any location or jurisdiction, or comply with laws governing export, import, or foreign use.

9. No warranties

We provide the Fresair Shop, Fresair Shop IP and Fresair Shop Products “as is” and “as available”, without any express, implied, or statutory warranties of title, merchantability, fitness for a particular purpose, noninfringement, or any other type of condition, warranty or guarantee. No data, documentation or any other information provided by Fresair or obtained by you from or through the Fresair Shop – whether from Fresair or another entity, and whether oral or written – creates or implies any warranty from Fresair to you.

Fresair disclaims any knowledge of, and does not guarantee: (a) the accuracy, reliability, or correctness of any data provided through the Fresair Shop; (b) that the Fresair Shop Products will meet your specific needs or requirements; (c) that the Fresair Shop will be available at any particular time or location, or will function in an uninterrupted manner or be secure; (d) that Fresair will correct any defects or errors in the Fresair Shop; or (e) that the Fresair Shop is free of viruses or other harmful code. Use of data, products or services that you access, purchase or download through the Fresair Shop is done at your own risk – you are solely responsible for any damage to your property, loss of data, or any other loss that results from such access, purchase or download.

Nothing in these Terms of Use operates to exclude, restrict or modify the application of any implied condition, warranty or guarantee, or the exercise of any right or remedy, or the imposition of any liability under law to the extent that doing so would: (a) contravene that law; or (b) cause any term of this agreement to be void.

10. Limitation of liability

Under no circumstances will Fresair be responsible or liable to you for any indirect, punitive, incidental, special, consequential, or exemplary damages resulting from your use or inability to use the Fresair Shop or for the unavailability of the Fresair Shop, or for lost profits, personal injury, or property damage, or for any other damages arising out of, in connection with, or relating to these Terms of Use or your use of the Fresair Shop, even if such damages are foreseeable, and whether or not you or the Fresair has been advised of the possibility of such damages. Fresair is not liable, and denies responsibility for, any damages, harm, or losses to you arising from or relating to hacking, tampering, or other unauthorized access or use of the Fresair Shop or your failure to use or implement anti-fraud measures, security controls, or any other data security measure. Fresair further denies responsibility for all liability and damages to you or others caused by (a) your access or use of the Fresair Shop inconsistent with our instructions; (b) any unauthorized access of servers, infrastructure, or data used in connection with the Fresair Shop; (c) any bugs, viruses, or other harmful code that may be transmitted to or through the Fresair Shop; (d) any errors, inaccuracies, omissions, or losses in or to any data provided to us; (e) third-party content provided by you; or (f) the defamatory, offensive, or illegal conduct of others.

You agree to limit any additional liability not disclaimed or denied by Fresair in relation to the Fresair Shop, Fresair Shop IP, and Fresair Shop Products, to your direct and documented damages; and you further agree that under no circumstances will any such liability exceed in the aggregate the greater of the amounts paid by you to Fresair during the three-month period immediately preceding the event that gave rise to your claim for damages, and USD $20.

These limitations on our liability to you will apply regardless of the legal theory on which your claim is based, including contract, tort (including negligence), strict liability, or any other theory or basis.

11. Disputes

a. Binding Arbitration: In the event that there is a dispute, claim or controversy arising out of or relating to statutory or common law claims, the breach, termination, enforcement, interpretation or validity of any provision of these Terms of Use, and the determination of the scope or applicability of your agreement to arbitrate any dispute, claim or controversy originating from these Terms of Use, but specifically excluding any dispute principally related to either party’s intellectual property (which such dispute will be resolved in litigation before the United States District Court for the Central District of California), will be determined by arbitration in Santa Ana, California before a single arbitrator. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules. The Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply for cases in which no disclosed claim or counterclaim exceeds $75,000 (exclusive of interest, attorneys’ fees and arbitration fees and costs). Where no party’s claim exceeds $25,000 (exclusive of interest, attorneys’ fees and arbitration fees and costs), and in other cases in which the parties agree, Section E-6 of the Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply. The arbitrator will apply the substantive law of the State of California, exclusive of its conflict or choice of law rules. If the American Arbitration Association is no longer in business, or refuses or declines to administer any dispute between the parties brought before it, either party may petition the United States District Court for the Central District of California to appoint the arbitrator. Nothing in this paragraph will preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provisions in this paragraph referencing applicable substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) will govern any arbitration conducted pursuant to these Terms of Use.

Either party may commence arbitration by providing to the American Arbitration Association and the other party to the dispute a written demand for arbitration, setting forth the subject of the dispute and the relief requested.

b. Service of Process: Each party hereby irrevocably and unconditionally consents to service of process through personal service at their corporate headquarters, registered address, or primary address (for individuals or sole proprietors). Nothing in these Terms of Use will affect the right of any party to serve process in any other manner permitted by law.

c. Class Waiver: To the fullest extent permitted by law, each of the parties agrees that any dispute arising out of or in connection with these Terms of Use, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim or dispute proceeds in court rather than through arbitration, each party knowingly and irrevocably waives any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to these Terms of Use or any of the transactions contemplated between the parties.

d. Provision of an Award: Subject to the limitations of liability identified in these Terms of Use, the appointed arbitrators may award monetary damages and any other remedies allowed by the laws of the State of California. In making a determination, the arbitrator will not have the authority to modify any term or provision of this Agreement. The arbitrator will deliver a reasoned written decision with respect to the dispute (the “Award”) to each party, who will promptly act in accordance with the Award. Any Award (including interim or final remedies) may be confirmed in or enforced by a state or federal court located in Santa Ana, California. The decision of the arbitrator will be final and binding on the parties, and will not be subject to appeal or review.

e. Fees: Each party will advance one-half of the fees and expenses of the arbitrators, the costs of the attendance of the arbitration reporter at the arbitration hearing, and the costs of the arbitration facility. In any arbitration arising out of or related to these Terms of Use, the arbitrators will award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with those aspects of its claims or defenses on which it prevails, and any opposing awards of costs and legal fees awards will be offset.

f. Confidentiality: The parties will maintain the confidential nature of the arbitration proceeding, the hearing and the Award, except (i) as may be necessary to prepare for or conduct the arbitration hearing on the merits, (ii) in connection with a court application as contemplated above for a preliminary remedy, or confirmation of an Award or its enforcement, (iii) our disclosure of the Award in confidential settlement negotiations, or (iv) as otherwise required by applicable laws. The parties, witnesses, and arbitrator will treat as confidential and will not disclose to any third person (other than witnesses or experts) any documentary or other evidence produced in any arbitration hereunder, except as required by law or except if such evidence was obtained from the public domain or was otherwise obtained independently from the arbitration.

g. Conflict of Rules: In the case of a conflict between the provisions of this Section 11 and the rules governing arbitration identified in Section 11.a, the provisions of this Section 11 will prevail. If any provision of these Terms of Use to arbitrate is held invalid or unenforceable, it will be so held to the minimum extent required by law and all the other provisions will remain valid and enforceable.

12. Applicable law

By using the Fresair Shop, you agree that the laws of the state of California, USA, without regard to principles of conflict of laws, will govern these Terms of Use and any dispute of any sort that might arise between you and Stripe.

13. Modification and severability

We have the right to change or add to the terms of these Terms of Use at any time, solely with prospective effect, and to change, delete, discontinue, or impose conditions on use of the Fresair Shop by posting such changes on our website or any other website we maintain or own. You can access a copy of the current version of these Terms of Use on our website at any time. You can find out when these Terms of Use were last changed by checking the “Last updated” date at the top of the page.

14. Our address

Fresair, LLC.
44560 Via Terra Nova
La Quinta, California 92253
fresair.com

15. Affiliate Program

Our Affiliate Program (the “Program”) is meant to encourage you to promote our products, to bring us to new audiences and to make sure that you are rewarded for your activity. It does not create any relationship between us apart from independent contractors; you are not our employee, nor do we have a partnership: if we approve your participation in this program, you are an independent contractor.

This means you should pay all applicable taxes, make sure that you have proper insurance, and not make any statement on our behalf. It also means that we will pay you the sums we agree upon specific dates.

Please understand that our liability to you is limited, as stated in our terms of service, and that we are non-exclusive; we can find other affiliates, and you can market other products.

 

Scope of the Relationship

In plain English: We’re independent contractors, you can’t share your account with others.

When joining the program, and upon our approval, you will be appointed as a non-exclusive affiliate, and you shall act to refer new potential customers to purchase our products and services. As our affiliate, you may not present yourself as a part of Fresair, and may not create any obligation on behalf of Fresair.

Your participation is personal, meaning that you cannot have sub-affiliates or share your affiliate fees with anyone else.

You shall invest reasonable time in promoting our products and services, and do it with good quality; if we find that your promotional material is problematic, offensive, illegal or otherwise objectionable, we may terminate your participation in the program.

You represent and warrant that you are able to participate in the program, that you will only act in a legal, bona fide manner and that you will not infringe on any intellectual property right or act in any deceptive practice when participating in it.

 

Promotional Materials and Intellectual Property

In plain English: Respect our intellectual property, we give you limited permission.

We reserve all our Intellectual Property Rights; and we provide our affiliates a limited, temporary, non-exclusive, non-transferrable, non-sublicensable license to use our trademark, brand name, and promotional materials, and such license is limited only to the use in promoting our products and services with our permitted banners according to our Trademark Guidelines. 

This means that you cannot use our Intellectual Property Rights with another brand name or as a bundled project. It also means that you cannot allow others to use the content we licensed to you.

You may only use the permitted banners and promotional material that we provide you as a part of our gallery.

All promotional materials showing prices should reflect updated prices and discounts at any time.

 

Termination  and Suspension

In plain English: We may stop this relationship at any time.

We reserve the right to terminate your affiliation with Fresair (i.e., your membership in the Program), at any time, by providing you with notice of such termination (to the email account with which you applied to the Program), and with immediate effect, at Fresair’s sole discretion. When we terminate our relationship, you must cease using all of our Intellectual Property Rights. 

In any case we suspect any breach of these terms, we may also suspend your account until we receive sufficient evidence from you that shows that no breach of these terms occurred.  In such case, we may require review of your books and records prior to reinstatement.

Upon termination due to breach (save for termination due to inactivity), we shall retain all funds in your account.

 

Termination for Inactivity

In plain English: If your account is inactive for an extended period, we will terminate your account and only pay the outstanding balance if it is over a specific sum.

In case we believe that your account is inactive, meaning it did not earn any commission or receive any visits using your referral link, then we may decide to close down your account. In such case, your pending balance, if not exceeding the payment threshold, will not be paid. We will not use this right without providing you notice of at least 14 days, allowing you the time to market and promote your referral links and restore your “active” status.

 

Malicious Use

In plain English: Don’t act bad and keep our reputationDon’t Distribute Fresair On Your Own.

As long as you participate in the program, you cannot provide any third-party a replica of Fresair, nor can you create derivative works of it. This is to ensure that all distribution of Fresair is made only via our official channels and without any backdoors, changes or insertion of malicious code.

Any work you created that uses both or intellectual property, and your own (for example, a promotional video that has our logo) must be destroyed or deleted. If you do not wish to do so, please contact us and request our specific consent.

 

Commission

In plain English: We pay according to a specific cookie measurement; we can only pay for these people.

Each affiliate will be provided with a fixed affiliate commission that we will notify in writing. We may change this commission at any time based on our own discretion. Such changes will not be retroactive.

We pay our commission for qualified conversions; a qualified lead is a new customer, who subscribed to our platform within a certain duration of days of clicking your affiliate link, and who made a purchase of any of our goods; all, provided that we were not introduced to this customer by any other affiliate or that they did not subscribe to our website of their own volition prior to their click. We will not pay a commission for self-dealing, i.e using the affiliate program to get discounts.

The commission shall be calculated out of our net revenues from your qualified leads, which means our total revenues, minus taxes, chargebacks, cancellations, bad debt, collection costs, clearing costs and payments made in order to collect the payment.

The means of tracking your qualified leads shall be by tracking the affiliate link we provide you.

You agree that our books and records are deemed as accurate and that our tracking is final.

 

Payment

In plain English: We will pay you according to our specific program.

Your commission is calculated only upon payment to you. Until then, the expected payment is not an obligation from us to you, but an estimation of future revenues.

We pay our affiliates on a monthly basis when their commissions reach a threshold that we determine and post on our website. The payment shall be made via PayPal or any other method we agree upon.

Until the payment is made, the sums specified on your account are not considered debt, and shall not be paid until you reach that threshold. 

You shall bear all taxes and expenses relating to the payment, including any fees which may be incurred by your bank.

You are required by law to provide us with an invoice upon payment.

If we provide a qualified lead with a refund, then we may deduct the commission from your future payment, or request that you return such fees. You also agree that we may offset any sums that you may owe us from any future payments.

Each party shall bear its own expenses, and the commission you are entitled to is the sole payment you receive in relation to your services.

 

Bad Practices

In plain English: We will kick you out if you are a bad actor.

Without limiting our Trademark Guidelines, we consider the following as “bad practices” which are prohibited and will cause automatic termination of your participation in this program, as well as forfeiture of all sums you are entitled to.

Please note that if at any time we believe that you acted in bad faith or illegally, we may also cancel your participation and withhold all payments.

The following are considered bad practices: (i) using deceptive practices, encouraging users to click your affiliate link or use of any automated means to create traffic; (ii) presenting yourself as a part of Fresair; (iii) using the Fresair brand, either in violation of the Trademark Guidelines while presenting unpermitted banners/link, or when using the Fresair Brand as a part of your domain name, website name, banners or in any form of paid advertising (for example, PPC campaigns); (iv) using domain names that imply any link to the Fresair brand including the word “Fresair” or similar sounding, looking or typed names; (v) spamming; (vi) buying traffic; (vii) using paid search or keyword advertising using our Intellectual Property Rights or brand name to drive traffic to your site or to the banners; (viii) reproducing Fresair product; (ix) offering coupons or discounts without our consent; (x) offering others a part of your commission; (xi) using words like “deal”, “sale” or “discount” in a deceptive manner or in a way stating that there is any discount, rebate, cash-back or other reduced payment for the product when there isn’t.

All websites which you use to promote Fresair must have a prominent privacy policy, which is acceptable under the relevant privacy protection laws, as well as provide a prominent notice on the collection of data made by us using the tag, pixel, and code.

This list is non-exhaustive, and we may block any practice that we believe is bad and terminate or suspend your account due to it. Bad Practices also include any illegal or unauthorized advertising, infringing intellectual property rights, invading users’ privacy, or otherwise using any advertising in violation of local laws and regulations.

 

Confidentiality

In plain English: Don’t tell others how much you earned from the program.

Our relationship is confidential; meaning that your commission is confidential, the fact that we paid you is not. You should add a decent disclosure if required by law that you receive a commission for conversion on our link, but you should not tell others what is your specific commission.

These Terms of Use are licensed under a Creative Commons Attribution 4.0 International License.