Terms of service

Phoenix Apparel, LLC ("Company," "we," "our," or "us") grants you ("you," "your") access to our website, accessible via http://www.phoenixactive.com, or any website that we own or control, including its subdomains (collectively, the "Site"), conditions on your acceptance of these terms, conditions, and notices contained herein (the "Terms") (together with, our Privacy Policy and any return or shipping policies we make available on the Site, which are each incorporated by this reference, and any other documents referred to herein).

The Site allows you to shop our products with avatars. We create avatars from aggregated data sets derived from thousands of individuals. Our avatars do not represent real people; any similarity or likeness to a particular individual is a coincidence. In determining which avatars to make available, we used population ratios from the U.S. census so that our avatar population is representative of the U.S. population. Our Site is designed to be representative, inclusive, and promote body positivity. Any population representations are not meant to be offensive in any way.

BY USING THE SITE, YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST EXIT THE SITE IMMEDIATELY AND DISCONTINUE ANY USE OF THE SITE AND ANY CONTENT CONTAINED THEREIN.

PLEASE BE AWARE THAT SECTION 13 OF THE GENERAL TERMS OF USE CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN US. AMONG OTHER THINGS, SECTION 13 INCLUDES AN AGREEMENT TO ARBITRATE, WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 13 ALSO CONTAINS CLASS ACTION AND JURY TRIAL WAIVERS. UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS: (i) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (ii) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.

WE MAY, IN OUR SOLE DISCRETION, MODIFY THESE TERMS AT ANY TIME BY POSTING UPDATED TERMS ON THE SITE OR BY SENDING YOU AN EMAIL NOTICE. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOU MUST CEASE USING THE SITE. BY CONTINUING TO USE OR ACCESS THE SITE, YOU AGREE TO THE REVISED TERMS. 

1. Use of the Site and Our Services. You may only access the Site if you are of legal age to enter into a legally binding contract with us under applicable law. The Site is provided to you for your personal, non-commercial use. You may access and use the Site only in accordance with all applicable laws and with these Terms. Any right, permission, or license to use the Site or its Content (as defined below) terminates automatically if your access or use violates applicable law or these Terms. You acknowledge and agree that Company may, in its sole discretion and without notice or any further obligation to you, temporarily suspend or permanently discontinue your access to or use of the Site for any reason, including the reasons specified in these Terms.

For the purposes of these Terms, "Content" means, collectively, any text, images, avatars, graphics, software, source code, specifications, audio files, videos, articles, trademarks, logos, and other information or content made available through the Site that are not Submissions (as that term is defined in Section 5 below), including but not limited to the design, structure, selection, coordination, expression, "look and feel," and arrangement of such Content.

You agree not to: (a) resell products purchased through the Site for commercial purposes; (b) sell, resell, distribute, or frame the Site or Content; (c) modify, distribute, transmit, display, perform, reproduce, publish, license, create derivative works of, transfer, or sell any Content; (d) use, frame, or utilize framing techniques to enclose any Company trademark, logo, or other proprietary information (including the Content, images, the content of any text, or the layout/design of any page or form contained on a page of the Site); (e) collect or use any product listings or descriptions made available on the Site; or (f) use any meta tags or any other "hidden text" utilizing a Company name, trademark, or product name.

When using the Site, you may not: (i) breach, attempt to breach, or otherwise bypass any security or authentication measures of the Site or any server, computer, or database connected to our Site; (ii) transmit into or submit to the Site any of the following: viruses, malware, malicious or destructive code, or any other routine, device, or other undisclosed feature (e.g., time bomb, software lock, drop dead device, malicious logic, worm, Trojan horse, or trap, back door, or software routine); (iii) use any data mining, robots, or similar data gathering or extraction methods to gather information, Content, user information or other information or data from the Site; (iv) access or attempt to access any systems or servers on which the Site is hosted or modify or alter the Site in any way; (v) attack our Site via a denial or service attack or distributed denial or service attack; (vi) forge headers, create a false identity, or otherwise manipulate identifiers in order to deceive others or disguise the origin of any Content or other information transmitted to or via the Site; (vii) use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of any Submission or content; (viii) take any action that imposes or may impose (in our sole discretion) an unreasonably or disproportionately large load on our infrastructure; or (ix) interfere with any security mechanism of the Site or attempt to gain unauthorized access to our computer network or user accounts.

In your access and use of the Site, you are prohibited from (1) any action or omission that would constitute illegal or criminal activity, that incites illegal or criminal activity, or conduct that is or would give rise to civil liability; (2) conduct that is defamatory or abusive; (3) conduct that harasses or threatens any individual; or (4) conduct that is obscene, sexually explicit, exploits children or minors, depicts cruelty to animals, or otherwise violates our or any individual's legal rights (such as rights of privacy and publicity). 

2. Your Account. If you purchase products using the Site, you may be prompted to establish an account with us in order to complete your purchase. You are solely responsible for maintaining the security and confidentiality of your account and your account password. You are solely responsible and liable for all activities, including, without limitation, all purchases of products that occur under your account or your account password.

3. Sales of Products. All product sales from the Site are governed by any terms of sale that may be posted on the Site. You should refer to our applicable terms posted on the Site including any product warranties, return and exchange policies (the "Return Policies"), payment options and policies, and shipping terms (collectively the "Terms of Sale"). By ordering and/or accepting delivery of the products, you agree to be bound by these Terms of Sale. The Terms of Sale are subject to change without prior notice at any time, in our sole discretion. You should review the Terms of Sale each time you make a purchase. We may place limits on purchases, and we do not authorize the purchase of commercial quantities of merchandise. We also may, among other things, restrict 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. We reserve the right to limit, cancel or prohibit orders that, in our judgment, appear to be placed in violation of these Terms. 

Minor differences in color and other variations in products are possible as a result of different image acquisition, display technologies, or other technical reasons. We are not liable for these variants and deviations. In addition, products displayed may be out of stock or discontinued, and prices are subject to change. 

4. Copyright & Trademarks. The Content and the Site, as well as the selection and arrangement thereof, are the sole property of the Company and/or its licensors and are protected by patent, copyright, trademark, and other intellectual property laws and may not be used except in accordance with these Terms or with Company's express written consent. Other than as necessary for your use of the Site in accordance with these Terms, Company grants no other privileges or rights in the Content to you, and you must not alter any patent, copyright, trademark, or other proprietary notices on the Content. Any Content owned by Company's licensors may be subject to additional restrictions. No part of the Site and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, or distributed in any manner or for any commercial purpose without Company's express prior written consent.

All trademarks, service marks, trade names, logos, and trade dress, whether registered or unregistered (collectively the "Marks") that appear on the Site (or any products or services sold through the Site) are proprietary to Company or such Marks' respective owners. You may not display or reproduce Company Marks other than with the prior written consent of Company, and you may not remove or otherwise modify any trademark notices from any Content. The Marks are protected by trademark, trade dress, copyright, and various other intellectual property rights and unfair competition laws. In addition, all page headers, custom graphics, button icons, and scripts are trademarks, service marks, trade names, and/or trade dress of Company or their respective owners, and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Company.

You are prohibited from posting any copyrighted, trade secret, proprietary, patented proprietary, or trademarked materials without express permission from the owner of such rights. 

5. Submissions. You acknowledge that you are responsible for the information, profiles, opinions, messages, comments, images, audio, photos, videos, and any other content or material that you submit, upload, post, or otherwise make available on or through the Site (each a "Submission") and through the services available in connection with the Site, and that you, and not Company, have full responsibility for each such Submission you make, including its legality, reliability, appropriateness, and trademark, copyright and other intellectual property ownership. You hereby grant Company a sub-licensable, transferable, perpetual, nonexclusive, worldwide, royalty-free license to (in any media, whether now known or not currently known or invented) to utilize, use, translate, publicly perform, publicly display, reproduce, distribute, edit, adapt, modify and prepare derivative works of the Submission. Submissions shall be considered non-confidential, and Company is under no obligation to treat such Submissions as proprietary information. 

You represent and warrant that: (a) you own all Submissions posted by you on or through the Site or otherwise have the right to grant the licenses to Company set forth in this section; and (b) the posting of your Submissions on or through the Site does not violate the privacy rights, publicity rights, trademark rights, copyrights, contract rights or any other rights of any person or entity or violate any applicable law, rule, regulation or order. 

Any Submission that you provide is provided on a non-proprietary and non-confidential basis. The Company is free to use a Submission for the purpose of providing the Site and the associated products and services. You may not submit any person's name, likeness, voice, or biographical information without express permission from such person (or if that person is a minor, from that person's parent or legal guardian).

6. Ideas, Feedback, and Product Reviews. You may submit ideas, suggestions, feedback, product reviews, or other information to us about our products ("Product Feedback"). This information is not a "Submission," and we own all right, title, and interest in and to any Product Feedback you provide us. We may incorporate Product Feedback into our product development without attribution, royalty, or compensation to you, and upon submission of Product Feedback, you transfer and assign to us any and all intellectual property rights you may have in the Product Feedback to us.

7. Linking to Our Sites. You may link to our Site, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it. You may not, and are prohibited from, establishing a link in such a way as to suggest any form of association, approval, or endorsement on our part where none exists. You are prohibited from framing the Site without our express written permission. We reserve the right to withdraw linking permission with or without notice for any or no reason. The website from which you are linking must comply in all respects with these Terms.

8. Mobile Terms of Service

The Phoenix Active mobile message service (the "Service") is operated by Phoenix Apparel LLC (“Phoenix Active”, “we”, or “us”). Your use of the Service constitutes your agreement to these terms and conditions (“Mobile Terms”). We may modify or cancel the Service or any of its features without notice. To the extent permitted by applicable law, we may also modify these Mobile Terms at any time and your continued use of the Service following the effective date of any such changes shall constitute your acceptance of such changes.

By consenting to Phoenix Active’s SMS/text messaging service, you agree to receive recurring SMS/text messages from and on behalf of Phoenix Active through your wireless provider to the mobile number you provided, even if your mobile number is registered on any state or federal Do Not Call list. Text messages may be sent using an automatic telephone dialing system or other technology. The service will include promotional messages such as promotions, specials, coupons, and other marketing offers; it will also include transactional messages such as order updates and account alerts.

You understand that you do not have to sign up for this program in order to make any purchases, and your consent is not a condition of any purchase with Phoenix Active. Your participation in this program is completely voluntary.

We do not charge for the Service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message frequency varies. Message and data rates may apply. Check your mobile plan and contact your wireless provider for details. You are solely responsible for all charges related to SMS/text messages, including charges from your wireless provider.

You may opt-out of the Service at any time. Text the single keyword command STOP to +1-844-310-0971 or click the unsubscribe link (where available) in any text message to cancel. You'll receive a one-time opt-out confirmation text message. No further messages will be sent to your mobile device, unless initiated by you. If you have subscribed to other Phoenix Active mobile message programs and wish to cancel, except where applicable law requires otherwise, you will need to opt out separately from those programs by following the instructions provided in their respective mobile terms.

For Service support or assistance, text HELP to +1+1-844-310-0971 or email info@phoenixactive.com.

We may change any short code or telephone number we use to operate the Service at any time and will notify you of these changes. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages.

The wireless carriers supported by the Service are not liable for delayed or undelivered messages. You agree to provide us with a valid mobile number. If you get a new mobile number, you will need to sign up for the program with your new number.

To the extent permitted by applicable law, you agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through the Service, any errors in such information, and/or any action you may or may not take in reliance on the information or Service.

We respect your right to privacy. To see how we collect and use your personal information, please see our Privacy Notice.

9. Modifications. The Site, its features, or any Content offered or posted on the Site is subject to modification or discontinuation at any time and from time to time without notice or obligation to you.

10. Cooperation with Law Enforcement. If we believe your (or any other users) actions are or could be illegal, we may report those actions to law enforcement authorities. We will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Site or in connection with the access or use of the Site.

11. Indemnification. You agree to defend, indemnify and hold us harmless (and hold our affiliates and their respective directors, officers, employees, and agents harmless) against any losses, liabilities, claims, and expenses (including attorney's fees) as a result of (a) your Submission or your access to or use of the Site; (b) your breach or alleged breach of these Terms; (c) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (d) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (e) any misrepresentation made by you. 

12. Digital Millenium Copyright Act Notice. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Site, please provide our designated agent with the following information, as required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. §512 ("DMCA"):

• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; 
• Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single website are covered by a single notification, a representative list of such works at that website; 
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled on the Site, and information reasonably sufficient to permit Company to locate the material; 
• Information reasonably sufficient to permit Company to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted; 
• A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law; and
• A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

        Our agent for DMCA notice of claims can be reached as follows: 

        EMAIL: copyright@phoenixactive.com

        MAIL: 20115 Standish Road, San Antonio TX 78258

Disclaimer of Warranties; Limitation of Liability THE SITE, SUBMISSIONS, AND ANY CONTENT PROVIDED VIA THE SITE, INCLUDING LINKS, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITH NO WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE SITE, SUBMISSIONS, CONTENT, AND ANY PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM ERRORS, OMISSIONS, COMPUTER VIRUSES OR OTHER MALICIOUS OR UNAUTHORIZED CODE OR PROGRAMS, AND IMPLIED WARRANTIES OR CONDITIONS ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SITE, SUBMISSIONS, CONTENT, OR ANY PRODUCTS, SERVICES, OR ANY OTHER INFORMATION ACCESSIBLE VIA THE SITE IS SECURE, ACCURATE, COMPLETE, OR CURRENT OR THAT ANY PARTICULAR PRODUCTS OR INVENTORY WILL BE AVAILABLE. 

THE SITE MAY CONTAIN TYPOGRAPHICAL ERRORS OR INACCURACIES AND MAY NOT BE COMPLETE OR CURRENT. WE RESERVE THE RIGHT TO CORRECT ANY ERRORS, INACCURACIES, OR OMISSIONS (INCLUDING AFTER AN ORDER HAS BEEN SUBMITTED) AND TO CHANGE OR UPDATE INFORMATION AT ANY TIME WITHOUT PRIOR NOTICE. PLEASE NOTE THAT SUCH ERRORS, INACCURACIES, OR OMISSIONS MAY RELATE TO PRICING AND AVAILABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY RESERVES THE RIGHT TO CANCEL OR REFUSE TO ACCEPT ANY ORDER PLACED BASED ON INCORRECT PRICING OR AVAILABILITY INFORMATION. IF AN ITEM BECOMES UNAVAILABLE FOR WHATEVER REASON AFTER AN ORDER IS ACCEPTED, WE MAY TERMINATE THE ORDER BY GIVING YOU WRITTEN NOTICE. IN SUCH EVENT, WE WILL CONTACT YOU TO ARRANGE FOR A REFUND OR PROVISION OF CREDIT AGAINST FUTURE PURCHASES.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY (AND ITS PARENT, AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS, AND THIRD-PARTY PARTNERS) WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, MULTIPLIED OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR REVENUES OR FAILURE TO REALIZE EXPECTED SAVINGS, WHETHER OR NOT SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY, INCLUDING, WITHOUT LIMITATION, ARISING OUT OF OR IN CONNECTION WITH ANY LOSS OR OTHER DAMAGES IN CONNECTION WITH ANY UNAVAILABILITY OR NONPERFORMANCE OF THE SITE, ERRORS, OMISSIONS, VIRUSES OR MALICIOUS CODE, UNLESS SUCH LOSS OR DAMAGES ARE CAUSED DIRECTLY BY COMPANY'S FRAUD, RECKLESSNESS, OR GROSS NEGLIGENCE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS MAY NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITIES OR DAMAGES. 

BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "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."

You agree that any claim you may have arising out of or related to your relationship with the Company must be filed within one (1) year after such claim arose; otherwise, your claim is permanently barred.

Arbitration Agreement. To the maximum extent permitted by law, each of us agrees that any and all disputes, whether arising under any legal or equitable theory and given the broadest meaning enforceable under law arising out of or relating in any way to these Terms, your access to or use of the Site, any communications you receive from us, any products sold or distributed through the Site, your account, your use of the Site, your Submissions, or the submission of Product Feedback (each a "Dispute") will be resolved exclusively and finally by a single arbitrator using binding arbitration pursuant to the Consumer Arbitration Rules of the American Arbitration Association ("AAA"), as further detailed in this Section 13 ("Arbitration Agreement"). The only exception to the Arbitration Agreement is that you or the Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).

You may reject this Arbitration Agreement by providing us with written notice of such rejection within 30 days of your first access to the Site or of the date a change to this Arbitration Agreement became effective. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process, c/o Phoenix Active, 20115 Standish Road, San Antonio TX 78258. or (b) by email from the email address associated with your account to [LEGAL EMAIL]. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. If you opt-out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have or may enter in the future with us.

YOU AGREE THAT DISPUTES WILL ONLY BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, REPRESENTATIVE, OR SIMILAR ACTION, EXCEPT AS PROVIDED BELOW. YOU AND THE COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.

Arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA's Consumer Arbitration Rules and the Supplementary Procedures for Consumer-Related Disputes (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. §1 et seq. ("FAA"), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of Oregon. A party who desires to initiate arbitration must provide the other party with a written demand for Arbitration as specified in the AAA Rules. 

If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. If the claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents we submit to the arbitrator. If the claim exceeds $10,000, a party's right to a hearing will be determined by the AAA Rules. The arbitration will be conducted in English, closed to the public, and confidential. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. All documents and information exchanged by the parties during arbitration are confidential information and will be kept confidential. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be as set forth in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. An arbitrator's decision shall be final and binding on all parties. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement. Each party shall bear its own attorneys' fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the demand was frivolous or was brought for an improper purpose (determined by the standards set forth in Federal Rule of Civil Procedure 11(b)). 

If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties' ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.

These Terms, and the Arbitration Agreement, are governed by and construed in accordance with the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule. All litigation, court proceedings, arbitration proceedings, mediation proceedings, lawsuits, court hearings, and other hearings or actions initiated in connection with the Site and/or the Content must and will be venue exclusively in Portland, Oregon. 

Discounts and Gift Codes. The Company may issue gift codes as part of a promotion, or you may purchase gift codes. Gift codes have no value until activated. We reserve the right to suspend or delay activation until payment has been cleared.  Gift codes cannot be used to purchase other gift codes. Gift codes may not be purchased using promotional offers or discounts. A gift code is not a credit, debit, or charge card. No implied warranties attach to purchased gift codes. Gift codes cannot be returned,  resold, used for unauthorized advertising, marketing, sweepstakes, promotional or commercial purposes, redeemed for more than face value, transferred for value, redeemed for cash, returned for a cash refund (except to the extent required by law), or used in a manner otherwise prohibited by Company. Gift codes may not be transferred to another person or account except to the extent required by law. We are not responsible for gift codes that are undeliverable or not received, including if due to inaccurate delivery information. We may limit the use of gift codes with respect to certain products, services, or types of transactions. The risk of loss and title for gift codes passes to the purchaser upon sale and electronic transmission. All returns for purchases made with a gift code will result in a credit. Gift codes may expire per the terms of the gift code.