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terms of use

Acknowledgment and Acceptance of Terms of Service
Welcome to Cooler.  THE TERMS AND CONDITIONS SET FORTH BELOW (THE “Terms”) ARE A LEGAL CONTRACT BETWEEN YOU AND Cooler Incorporated (“Cooler”) AND GOVERN YOUR ACCESS TO, AND USE OF THE COOLER WEBSITE LOCATED AT http://www.ClimateCooler.com and http://shop.cooler.mallnetworks.com (THE “SITE”).  IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THIS SITE AND/OR THE SERVICES (“SERVICES”) OR ANY INFORMATION CONTAINED ON THE SITE. YOUR USE OF THIS SITE AND/OR THE SERVICES ON THIS SITE SHALL BE DEEMED TO BE YOUR AGREEMENT TO ABIDE BY EACH OF THE TERMS SET FORTH BELOW.  COOLER MAY MAKE CHANGES TO THE SERVICES OFFERED ON THIS SITE, AT ANY TIME WITHOUT NOTICE, AND COOLER CAN CHANGE THESE TERMS AT ANY TIME WITHOUT NOTICE BY POSTING UPDATED TERMS OF USE ON THE SITE.  YOUR CONTINUED USE OF THE SITE AFTER SUCH CHANGES HAVE BEEN POSTED MEANS THAT YOU AGREE TO THE NEW TERMS, EVEN IF YOU HAVE NOT REVIEWED THE CHANGES.  THEREFORE, YOU SHOULD CHECK THE TERMS OF USE POSTED ON THE SITE PERIODICALLY FOR UPDATES AND CHANGES. 
Age.  You represent, acknowledge and agree that you are at least 18 years of age, or that you are the parent or legal guardian of a user that is over the age of 13 and you agree to these Terms.  If you are the parent or legal guardian of a user of this Site and you have questions about this Site or these Terms, please contact us.

Description of Service
Description.  Cooler provides a free service to its members (“Members”) whereby Cooler utilizes its proprietary technology to calculate an estimate of the total greenhouse gas emitted in the manufacture, transportation and sale of qualifying goods and services purchased by Members at participating online stores (“Merchants”).  When those purchases are made through the Site, Cooler offsets the calculated greenhouse gas emissions of each purchase, thus eliminating the global warming impact of each Member’s purchases (“Program”).

Privacy Policy
Your use of the Site is governed by the Cooler Privacy Policy, which is available here (the “Privacy Policy”). 

Submissions
Permissions.  You are solely responsible for any data, text, software, music, sound, photographs, graphics, video, messages, files or other materials (“Submissions”) which are transmitted, posted, or distributed by you through the Services, including but not limited to the contents of your public profile. Cooler does not control the Submissions transmitted, posted or distributed by users such as you via the Services and, as such, does not guarantee the accuracy, integrity or quality of such Submissions. By using Cooler, you understand and agree that you may receive Submissions transmitted or distributed by other users that may be offensive, indecent or objectionable. Under no circumstances will Cooler be liable in any way for any Submissions transmitted or distributed by any user or third party, including, but not limited to, liability for any errors or omissions in any Submissions or for any loss or damage of any kind incurred as a result of the use of any Submissions transmitted or distributed via the Services.   No information you submit shall be deemed confidential. However, Cooler agrees to use your information in accordance with Cooler’s privacy policy applicable to personally identifiable information.
License.  You agree that if you use the Services to transmit any Submissions, you grant to Cooler, and its successors and assigns, a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license, in and to (in any media now known or not currently known or invented) the Submissions, solely for purposes of transmitting, posting or distributing such Submissions to the intended recipients thereof. 
Submission Warranty.  You represent and warrant that: (i) you own the Submissions posted by you on or through the Services or otherwise have the right to grant the license set forth in this section, and (ii) the posting of your Submissions on or through the Services does not violate the privacy rights, publicity rights, trademark rights, copyrights, contract rights or any other rights of any person. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any Submissions posted by you to or through the Services.

Third Party Content
Right to Third Party Content.  Certain information and content that are not Submissions may be provided by third party licensors and suppliers to Cooler (“Third Party Content”).  The Third Party Content is, in each case, the copyrighted work of the licensor.  Unless you have permission from the owner of the copyrights in the Third Party Content, you agree to only display the Third Party Content on your personal computer solely for your personal use.  You acknowledge and agree that you have no right to download, cache, reproduce, modify, display (except as set forth in this paragraph), edit, alter or enhance any of the Third Party Content in any manner unless you have permission from the owner of the Third Party Content.  Cooler DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES AND CONDITIONS WITH REGARD TO THIRD PARTY CONTENT, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT

Proprietary Rights.
Ownership.  Unless otherwise specified, all information and screens appearing on this Site including documents, Programs, site design, text, graphics, logos, images and icons, as well as the selection and arrangement thereof, are the sole property of Cooler or its licensors.  Except for the express licensed granted herein, all rights not expressly granted herein are reserved.  Except as otherwise required by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner.
Protection.  Certain information, documents, products and Services provided on and through the Site and any necessary software used in connection with the Service (“Software”) including content, trademarks, logos, graphics and images that are not Submissions (as defined below) (together, the “Materials”) are provided to you by Cooler and contain proprietary and confidential information that is protected by applicable intellectual property and other laws.
Limited License.  Cooler grants you a limited, personal, non-exclusive and non-transferable license to use and to display the Materials and use the Services, and the Site solely for your personal use.  You acknowledge and agree that you have no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Materials or the Software in any manner.  This limited license terminates automatically, without notice to you, if you breach any of these Terms.  Upon termination of this limited license, you agree to immediately destroy any downloaded or printed Materials or Software.  Except as stated herein, you acknowledge that you have no right, title or interest in or to the Site, any Materials or the Software on any legal basis.

Program Details
Enrollment.  To participate in the Program, you must create a Program account (“Account”) on the Site and be a Member in good standing.  In order to create an Account you must supply your name and e-mail address, as well as choose a password.   You are solely responsible for maintaining the confidentiality of your password and account, and agree to notify Cooler if your password is lost, stolen, or disclosed to an unauthorized third party, or otherwise may have been compromised.  You are solely responsible for maintaining the confidentiality of your Account.  You are responsible for activities that occur under your Account.  You agree to immediately notify Cooler of any unauthorized use of your Account or any other breach of security in relation to the Services known to you.  You may change your Account information, at any time by following instructions available on your My Impact page ((accessed from the Sign In page)).
You agree that information you provide us will be true, accurate, current and complete information about yourself as prompted by any Program registration form and to maintain and promptly update your personal data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or if we or any of our service providers have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your Account.
Earning Pounds.  A membership number will be assigned to you after you create an Account which you must activate.  Upon activation of your membership number Cooler will calculate the number of pounds of global warming pollution (“Pounds”) associated with the manufacture, transportation, and sale of each of your individual purchases and use funds paid to Cooler by the Merchant to invest in programs that eliminate the global warming pollution that was produced in the manufacture, transportation and sale of the goods you purchase under the Program.
For the purposes of these Terms, a transaction is a “Qualifying Transaction” once all conditions in a Merchant’s offer with respect to that transaction, including any waiting periods, have been satisfied and the transaction meets all applicable Program standards. Subject to these Terms, you will receive notice of the number of Pounds of greenhouse gas pollution that was offset on behalf of all Qualifying Transactions made at, from or with Merchants. 
The amount of Pounds, as well as the terms and conditions of any Qualifying Transaction or Program, may change at any time. Your continued use of the Program thereafter will constitute acceptance of such terms and conditions. We do not represent or warrant that any particular Merchant will participate in the Program at the time you join the Program or at any time thereafter. We do not assume any liability, obligation or responsibility for any part of any correspondence with, or offers or promotions of, any Merchant, including without limitation the withdrawal or modification of any such offer or promotion.
We may in our discretion provide a promotional page or other description on the Site of each Merchant’s terms and conditions. Merchants may impose conditions or restrictions different from, or in addition to, those described on such promotional pages or in such descriptions. We are not responsible for setting or maintaining the amount of fees offered by any Merchant or for requirements of any Merchant’s program or offer.
Posting Pounds to your My Impact Account.  We will maintain a record of the pounds of greenhouse gas pollution that was eliminated by all your purchases and by purchases made by your friends who you invited into the Program under My Impact section of the Site.  Pounds that you accrue as a result of Qualifying Transactions will be posted to your Account, and a summary of activity in your Account will be displayed on the Site. Pounds will normally be posted to your Account within 45 days after we receive notice from a Merchant of the Qualifying Transaction, but we do not assume any liability for a failure to do so in a timely manner. You are solely responsible for checking your Account regularly to ensure that your Pounds are properly credited. If proper credit does not appear on your activity statement, you should contact us via the Site and then provide any requested documentation to verify your purchase. We reserve the right to determine, in our sole and absolute discretion, whether Pounds should have been posted to your Account and to adjust your Account accordingly. You acknowledge that any such determination by us will be final and binding.
We will credit your Account with only those Pounds you earn by dealing with authorized Merchants in good standing with us, and may require Merchant authorization to do so. We are not responsible if a Merchant delays or fails to make such an authorization or for any other delay in recording Pounds in your Account. We may refuse to record or honor Pounds in your Account, or if already recorded, we may deduct them, if we cannot confirm that they were properly issued or obtained. We may also deduct recorded Pounds if the issuing Merchant does not pay amounts owing to us or tells us to cancel the Pounds (for example, because you returned or didn’t pay for products or services for which the Pounds were issued). Any dispute must be settled between you and the Merchant.
Taxes.  We will not be liable or responsible in any manner for any tax consequences which may result from a Member’s participation in the Program. Each Member is solely responsible for any tax liability, including all applicable filing and reporting obligations, connected with the receipt or use of Pounds or Pounds earned through participating in the Program. Members should consult with their tax advisors regarding the accumulation and use of Pounds.
Restrictions on Pounds.  Accrued Pounds do not constitute property of a Member and have no value outside the Program. Pounds accrued by a Member are for the Member’s benefit only and may not be exchanged for cash, assigned, brokered, bartered, attached, pledged, gifted, sold, or transferred under any circumstances, including but not limited to, upon death, as part of a domestic relations matter, or otherwise by operation of law, without our express prior approval. We will not have any liability for disagreements between or among Members regarding Pounds.
Revisions to the Program.  We may revise any aspect of the Program including redemption procedures or any Pounds in any respect, all without notice and even though changes may affect the value of Pounds already accumulated. For example, but without limitation, we may (i) increase or decrease the number of Pounds associated with any Qualified Purchase; (ii) add blackout dates, limit Pounds available at any participating event, or otherwise restrict the continued availability of Pounds; or (iii) change Program benefits, participating Merchants, conditions of participation, rules for earning, redeeming, retaining, or forfeiting Pounds, or rules governing the use of Pounds. The accumulation of Pounds does not entitle Members to any vested rights with respect to Pounds, or Program benefits. In accumulating Pounds, Members may not rely upon the continued availability of any Reward or Reward level. For the most current and other Program details and information, visit the Site.

Unauthorized Activities.
Submission Indemnification.   Submissions and unauthorized use of any Materials or Third Party Content contained on this Site may violate certain laws and regulations.  You shall indemnify and hold Cooler and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees) Cooler or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third party that your use of the Site or the use of the Site by any person using your user name and/or password (including without limitation your participation in the posting areas or your Submissions) violates any applicable law or regulation, or the rights of any third party
Monitor.  Cooler reserves the right, but does not assume the responsibility, to monitor or review your use of the Services and the Site. Your use of the Services is subject to all applicable local, state, national and international laws and regulations.  In using our Services you agree not to:
Use the Services for illegal purposes;
Interfere or disrupt networks connected to the Site or violate the regulations, policies or procedures of such networks;
Use the Services in connection with chain letters, junk mail, surveys, contests, pyramid schemes, or use any distribution lists including any person who has not given specific permission to be included in such a process (commercial or otherwise);
Harvest or otherwise collect information about other users, including e-mail addresses, without their consent;
Transmit through the Services any unlawful, harassing, defamatory, abusive, threatening, harmful, vulgar, obscene, sexually explicit, or otherwise objectionable material of any kind or nature;
Invade another’s privacy or violate rights of publicity or intellectual property rights (including but not limited to copyright, trademark and patent rights) while using the Services;
Transmit through the Services any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation;
Interfere with another user’s use and enjoyment of the Services;
Defame, abuse, harass, stalk, threaten or violate the legal rights (such as rights of privacy and publicity) of any other user;
Create a false identity for the purpose of misleading others as to your identity or the origin of a message;
Transmit or upload any material that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs;
Attempt to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Site, through password mining or any other means; or
Engage in any other conduct which, in Cooler’s sole discretion, is considered inappropriate, unauthorized or objectionable.

Disclaimer of Warranties
Risk.  Your use of this Site and/or the Services is at your own risk.  Cooler does not warrant the accuracy or timeliness of the materials, Submissions or the Third Party Content contained on this Site and/or the Services.  Cooler has no liability for any errors or omissions in the materials, Submissions and/or the Third Party Content, whether provided by Cooler or its vendors.
DISCLAIMER.  COOLER, FOR ITSELF AND ITS VENDORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE SITE, THE SERVICES, ANY MATERIALS OR THIRD PARTY CONTENT, RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED ON THE SITE, INCLUDING WITHOUT LIMITATION THE MATERIALS, THE THIRD PARTY CONTENT AND THE SUBMISSIONS OF OTHER VISITORS TO THE SITE.  UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE, THE SERVICES, MATERIALS, THIRD PARTY CONTENT, SUBMISSIONS, AND ANY INFORMATION OR MATERIAL CONTAINED ON THE SITE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE,” AND “WHERE-IS” BASIS WITH NO WARRANTY OR IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.  COOLER DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.

Limitation of Liability
LIMITATION.  NEITHER COOLER NOR ITS VENDORS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIAL ON THE SITE OR RELATING TO YOUR SUBMISSIONS.  IN NO EVENT SHALL COOLER OR ITS VENDORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF COOLER OR ITS VENDORS KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE.

Indemnification
You agree to indemnify and hold Cooler, its parent, subsidiary, affiliate, officers, employees, agents, directors, successors and assigns harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Site or the Services, the violation of the Terms by you, the infringement by you (or other user of the Services using your account) of any intellectual property or other right of any person or entity or violation of any federal, state or local law or regulation.

Termination
Terminate.  If you violate these Terms, or if Cooler determines in its sole discretion that you have used the services unreasonably, Cooler may suspend or terminate your access to the Site or Services without notice.  Cooler prefers to advise you of your inappropriate behavior and recommend any necessary corrective action.  However, certain violations of these Terms, as determined by Cooler, will result in immediate suspension or termination of your access to the Site or Services. Cooler shall not be liable to you or any third party for termination of the Services or termination of your use of the Site. Should you object to any terms and conditions of the Terms or any subsequent modifications Cooler makes to the Terms or become dissatisfied with the Services in any way, your only recourse is to immediately: (i) discontinue use of the Services; and (ii) notify Cooler of your termination and, at your discretion, notify Cooler of the reasons for your termination. Upon your termination, your right to use the Site and the Services shall cease immediately. You shall have no right and Cooler will have no obligation thereafter to forward any unread or unsent messages to your or any third party on your behalf.
Survival.  The proprietary rights, disclaimer of warranties, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.

Links to Third Party Sites
This Site and Services may be linked to other sites that are not the Site. Cooler is providing these links to you only as a convenience, and Cooler is not responsible for the content or links displayed on such sites
Transactions With Organizations; International Users
Liability.  Cooler shall not be liable for your interactions with any organizations, Merchants and/or individuals found on or through the Site or the Services. This includes, but is not limited to, payment and delivery of goods and services, and any other terms, conditions, warranties or representations associated with such dealings. These dealings are solely between you and such organizations and/or individuals. Cooler is under no obligation to become involved in disputes between participants using the Services, or between participants using the Services and any third party.
International Users.  We make no claims that information on the Site is appropriate or may be downloaded outside the United States. Access to the Site may not be legal in certain countries or for certain persons. If you access the Site from outside the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction regarding online conduct and acceptable content, in addition to these Terms.

Miscellaneous
The laws of the state of Massachusetts, excluding its conflict or conflicts of law provisions, will govern these Terms.  The terms of the UN Convention on International Sale of Goods is expressly excluded in its entirety from application to this Agreement.  You agree to submit to the exclusive jurisdiction of the Courts of the State of Massachusetts, provided, however, that Cooler, in its sole discretion, may elect to settle any litigation in any way arising out of or relating to these Terms through binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such arbitration shall be conducted in Massachusetts, and judgment on the arbitration award may be entered into in any court having jurisdiction thereof. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified.  Cooler’s failure to enforce any of these Terms is not a waiver of such term.  The Terms are the entire agreement between you and Cooler and supersede all prior or contemporaneous negotiations, discussions or agreements between you and Cooler about the Site and/or Services.