Terms & Conditions
I. LAST UPDATED: MAY 1, 2020
THESE TERMS OF SERVICE (THE “TERMS” OR THE “AGREEMENT”) ARE A LEGAL CONTRACT BETWEEN YOU, THE CUSTOMER (“YOU” OR “CUSTOMER”), AND PNEUMA NITRIC OXIDE, LLC (“PNEUMA,” “WE,” “US,” OR “OUR”). THESE TERMS SET FORTH THE ENTIRE UNDERSTANDING BETWEEN PNEUMA AND THE CUSTOMER WITH RESPECT TO THE FURNISHING OF GOODS (“PRODUCTS”), AND THE PERMITTED USE OF THE SITE LOCATED AT THE URL: WWW.N1O1.COM AS WELL AS ALL ASSOCIATED SITES LINKED TO WWW.N1O1.COM BY PNEUMA, ITS SUBSIDIARIES, AND AFFILIATED COMPANIES (COLLECTIVELY, THE “SITE”). BY USING THIS SITE, YOU ARE AGREEING TO ALL THE TERMS; IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THIS SITE OR ANY INFORMATION CONTAINED ON THIS SITE.
II. DESCRIPTION OF THE SITE AND PRODUCTS
All Products are purchased via the Site. We provide Visitors and Account Holders with access to our Site as described in these Terms.
Visitors. Visitors are people who do not register with us but want to view all publicly accessible content and/or purchase Products. You need not register with us to simply visit and view the Site or purchase Products.
Account Holders. In addition to viewing all publicly accessible content on the Site, you may register to become an Account Holder where you can use the Site to, among other things select the type of Products you want to purchase. We are under no obligation to accept anyone as an Account Holder and may accept or reject any registration in our sole and complete discretion.
By using this Site, you represent, acknowledge, and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a “Minor”), that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the Site and agree to its Terms. If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to these Terms and to fully indemnify and hold harmless Pneuma if the Minor breaches any of these Terms. If you are not at least 13 years old, you may not use the Site at any time or in any manner or submit any information to Pneuma or the Site.
III. REGISTRATION FOR ACCOUNT HOLDERS
Individual users may register as Account Holders following an initial purchase. Wholesale Account Holders must submit a request to Pneuma to be granted access as a wholesaler. Following review and approval of a wholesaler’s request for access, the wholesaler will receive a link from Pneuma to activate their account. All wholesale Account Holders are bound by the terms and conditions in their respective Wholesale Agreements with Pneuma.
During the registration process for all Account Holders, we will ask you to create an account, which includes a sign-in name (“Sign-In Name”) and a password (“Password”). When creating your account, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one Account Holder. You are solely responsible for the confidentiality and use of your Sign-In Name and Password as well as for any use, misuse, or communications entered through the Site using one or more of them. You must promptly inform us of any need to deactivate a Password or Sign-In Name. We reserve the right, upon reasonable written notice, to reset your Password and/or require that you change your Sign-In Name, at any time and for any reason. Pneuma will not be liable for any loss or damage caused by any unauthorized use of your account. During the registration process for all Account Holders, we will ask you to create an account, which includes a sign-in name (“Sign-In Name”) and a password (“Password”). When creating your account, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one Account Holder. You are solely responsible for the confidentiality and use of your Sign-In Name and Password as well as for any use, misuse, or communications entered through the Site using one or more of them. You must promptly inform us of any need to deactivate a Password or Sign-In Name. We reserve the right, upon reasonable written notice, to reset your Password and/or require that you change your Sign-In Name, at any time and for any reason. Pneuma will not be liable for any loss or damage caused by any unauthorized use of your account.
IV. USE OF THE SITE
By accessing and/or using the Site, you hereby agree to the following terms and conditions:
- You will not use the Site or our Products for any unlawful purpose;
- Account Holders may not use the Products to engage in any non-Pneuma-related commercial activities, including, without limitation, raising money; advertising or promoting a third-party product, service, or company; or engaging in any third-party pyramid or other multi-tiered marketing scheme;
- You will not upload, post, email, transmit, or otherwise make available any content that:
- is false, deceptive, misleading, or deceitful;
- infringes any copyright, trademark, trade secret, right of publicity, or other proprietary rights of any person or entity;
- is threatening, tortious, defamatory, libelous, indecent, obscene, pornographic, invasive of another’s privacy, or promotes violence; or
- discloses any sensitive information about another person, including that person’s email address, postal address, phone number, credit card information, or any similar information;
- You will not access or use the Site or our Products to collect any market research for a competing business;
- You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
- You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure;
- You will not use automated means, including spiders, robots, crawlers, data-mining tools, or the like to download or scrape data from the Site, except for Internet search engines (e.g., Google) and non-commercial public archives (e.g., archive.org) that comply with our robots.txt file;
- You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features (e.g., report abuse button) on the Site; and
- You will not interfere with or attempt to interrupt the proper operation of the Site through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords through hacking, password or data mining, or any other means.
Please let us know about inappropriate content. If you find something that violates any of the foregoing terms and conditions, let us know, and we will review it. We reserve the right, in our sole and absolute discretion, to deny you access to the Site without notice and to remove any content that does not adhere to these terms and conditions.
V. ORDERING AND DELIVERY
All orders placed through the Site are subject to Pneuma’s acceptance. After your order has been placed, we will provide you with an email confirming our receipt of your order. The confirmation you receive does not constitute our acceptance of your order. Rather, we are only confirming our receipt of your order. Pneuma may refuse to accept or may cancel any order, whether or not the order has been confirmed, for any or no reason, and without liability to you or anyone else. If your payment card or payment method has already been charged for an order that is later cancelled by Pneuma, we will issue you a refund. If you do not receive confirmation that your order has been placed, please contact our Customer Service Department at firstname.lastname@example.org. Your order will be deemed accepted upon its shipment and your receipt of a shipment confirmation of your order. Processed orders will be shipped according to the terms of our shipping policies, which are summarized herein.
While we want everyone to be able to enjoy our Products, we may, in our sole discretion, not accept an order or limit or cancel quantities purchased per person, per household or per order. Some reasons we may do so include, but are not limited to, the following:
- Orders that, in our sole discretion, appear to be placed by dealers, resellers or distributors.
- Orders that appear to be shipped to a freight forwarding company for reshipment.
- Orders that cannot be processed as a result of incorrect or invalid billing, shipping or payment information. Be sure to double-check your information when placing an order. We cannot process orders for several reasons including, but not limited to: Incorrect credit or debit card information such as card number, expiration date and card security value; Incorrect payment method billing information (billing information provided must be the same as what your financial institution has on record); Insufficient or incorrect shipping address such as street address, city, state/province, ZIP or postal code.
- Orders, in our sole discretion, that we suspect to be fraudulent. We reserve the right to cancel or not accept any order that we suspect to have been placed as a result of fraudulent activity. We further reserve the right to cancel or not accept subsequent orders from customers with a previous fraudulent order history.
- Orders connected to previous credit card disputes.
If your order has been processed and shipped, you may return the Product(s) you ordered pursuant to the terms of our Refund & Return Policy, which is summarized in Section VII below.
Pneuma uses reliable third-party delivery companies to deliver your Products. Orders placed on the weekend will be shipped the following business day. Please be advised that shipments are not sent out on Saturdays, Sundays, or any U.S. Federal Holidays. We do not guarantee arrival dates or times.
For orders shipped outside the continental US, the customer is responsible for all duties and fees.
PAYMENT & TAXES
Pneuma offers several methods of payment for you to purchase Products including, but not limited to, credit cards and debit cards. Some methods of payment are only available in certain countries. You agree to pay all fees or charges based on Pneuma’s fees, charges, and billing terms in effect as shown on the Order Summary Page, on the date that you submit your order for Products. You expressly agree that Pneuma is permitted to bill you for all applicable fees, any applicable taxes, and any other charges you may incur in connection with your use of this Site.
We will collect applicable sales tax on Products shipped to the states for which we determine we have a duty to collect sales tax. If an item is subject to sales tax, you agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.
These fees, taxes, and charges will be billed to your credit card, PayPal, or other payment method designated by you in your account with us. If we cannot charge your credit card, PayPal, or other designated payment method for any reason, we reserve the right to either suspend or terminate your access to the Site and terminate these Terms of Service.
We reserve the right to modify the prices charged for any Products we offer, or to add or remove any products or offerings from the Site at any time without prior notice to you. Price quotes provided to you prior to any price modification shall be honored.
Any applicable discounts or promotional prices will be noted at the time of purchase on the checkout page for your order.
You are fully responsible for all activities that occur under your account, and you agree to be personally liable for all charges incurred under your account. Your liability for such charges shall continue after termination of this Agreement.
If you believe that you have been erroneously billed, please notify our Customer Support at email@example.com immediately of such error.
To cancel an order please contact our Customer Service Department at firstname.lastname@example.org. When emailing us, please include your full name and address, as well as the name of the Merchandise that you ordered. Please allow up to 30 days for refunds to process.
VII. REFUND & RETURN POLICY
If at any time you are not satisfied with the Product for any reason, you may contact our Customer Support at support@pneumanitric oxide.com and request a refund. All requests for refunds will be handled by customer service on a case by case basis, may require a return of unused Product, and may not be available if more than 30 days have passed from the date the customer received the Product. When emailing us, please include your full name, address, as well as the name of the Product that you ordered and RMA#.
Customers are restricted to receiving a single refund per Product ordered. Repetitive refunds are not permitted unless the Product, as delivered to you, is defective. Pneuma reserves the right to refuse a refund to any customer who repeatedly requests refunds or who, in Pneuma’s judgment, requests refunds in bad faith.
In order to process your refund, you must supply Pneuma with your name, delivery address and RMA#. If you provide us with insufficient or incorrect information, your refund will be delayed.
Depending on the bank that issues the credit or debit card you used, your refund can take up to thirty (30) days to appear on your credit or debit card statement. If you have any questions about whether a refund has been issued by Pneuma, please contact our Customer Support at email@example.com.
Please note that we are not responsible for any returned Product that gets lost or stolen while in transit to us. We recommend all returned Product be sent using some type of delivery confirmation system to ensure proper delivery. Failure to use the Product does not constitute a basis for refusing to pay any associated charges.
VIII. INTELLECTUAL PROPERTY
The Site contains material, such as software, text, graphics, images, sound recordings, audiovisual works, and other material provided by or on behalf of Pneuma (collectively referred to as the “Content”).
PNEUMA NITRIC OXIDE and the associated logo are trademarks of Pneuma Nitric Oxide, LLC (the “Pneuma Trademarks”). Other logos, company, product, and service names located on the Site may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Pneuma Trademarks, the “Trademarks”). Nothing in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Pneuma Trademarks inures to our benefit. Elements of the Site are protected by trade dress, trademark, unfair competition, and other state, federal, and national laws and may not be copied or imitated, in whole or in part, by any means, including, but not limited to, the use of framing or mirrors.
Unless otherwise specified in these Terms, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images, and icons, as well as the arrangement thereof, are the sole property of Pneuma or its licensors, Copyright © 2014-2019 Pneuma Corporation. All rights not expressly granted herein are reserved. Except as otherwise required or limited 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 or an applicable license.
IX. COMMUNICATIONS TO US
Although we encourage you to email us, we do not want you to, and you should not, email us any content that contains confidential information. With respect to all emails you send to us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including, but not limited to, the development, production, and marketing of products and services that incorporate such information, without compensation to you.
X. LIMITED WARRANTY AND LIMITATION OF LIABILITY
(I) WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SITE, THE CONTENT, THE TRADEMARKS, OR THE PRODUCTS, AND ALL OF THE FOREGOING ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND; (II) WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (III) YOU AGREE THAT YOU USE THE SITE, AND THE PRODUCTS AT YOUR OWN RISK. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE DISCLAIMERS ABOVE MAY NOT APPLY TO YOU.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE WILL NOT BE LIABLE TO YOU FOR ANY INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM YOUR PURCHASE OF THE PRODUCTS OR YOUR USE OR INABILITY TO USE THE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR MAXIMUM LIABILITY TO YOU (AND ANYONE CLAIMING RIGHTS THROUGH YOU) SHALL BE CAPPED AT THE MONIES PAID BY YOU TO PNEUMA IN THE ONE (1) MONTH PERIOD PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH CASES, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IF YOU ARE A NEW JERSEY RESIDENT, THIS LIMITATION OF LIABILITY SECTION IS TO BE ONLY AS BROAD AND INCLUSIVE AS IS PERMITTED BY THE LAW OF THE STATE OF NEW JERSEY.
XI. EXTERNAL SITES
The Site may contain links to third-party sites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all Sites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
You, on behalf of yourself and your heirs, agree to defend, indemnify, and hold us and our officers, directors, employees, successors, licensees, and assignees harmless from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of these Terms or your access to, use, or misuse of the Site. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter. If you are a New Jersey resident, this Indemnification clause is to be only as broad and inclusive as is permitted by the law of the State of New Jersey.
XIII. COMPLIANCE WITH APPLICABLE LAWS
The Site (and their servers) are all based and operated in the United States. We make no claims concerning whether the content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Site, or the content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
XIV. TERMINATION AND USE OF SITE
We reserve the right, in our sole discretion, to restrict, suspend, or terminate your access to all or any part of the Site at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Site at any time without prior notice or liability.
XV. DIGITAL MILLENNIUM COPYRIGHT ACT
Pneuma respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any Content deemed to have been posted or distributed in violation of any such laws.
Our designated agent under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) (the “Act”), for the receipt of any Notification of Claimed Infringement that may be given under that Act is as follows:
Pneuma Nitric Oxide. LLC
Attention: Legal Department (DMCA)
9625 FM 908 S
Rockdale, TX 76567-3529
If you believe that your work has been copied on the Site in a way that constitutes copyright infringement, please provide our agent listed above with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Site where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number, and email address; (iv) a statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
Please note that, under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing, or that material or activity was removed or disabled by mistake or misidentification will be liable for damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. Accordingly, if you are not sure whether certain material or activity infringes your or others’ copyrights, please consult with a copyright attorney first.
XVI. DISPUTE RESOLUTION
Please Read This Provision Carefully. It Affects Your Legal Rights. This “Dispute Resolution and Arbitration; Class Action Waiver” provision (“Provision”) facilitates the prompt and efficient resolution of any dispute, claim, or controversy, whether based in contract, statute, regulation, ordinance, tort—including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence—or any other legal or equitable theory, and includes the validity, enforceability, or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between You and Pneuma (collectively, a “Dispute”). The term “Dispute” shall be given the broadest meaning enforceable by law and include any claims against other parties relating to Products provided or billed to You (such as Pneuma licensors, suppliers, dealers, or third-party vendors) whenever You also assert claims against Pneuma in the same proceeding. This Provision provides that all Disputes between You and Pneuma that cannot be resolved by agreement using good faith efforts within 60 days shall be resolved by binding arbitration because acceptance of these terms constitutes a waiver of your right to litigation claims and all opportunity to be heard by a judge or jury. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Agreement and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt out of this Provision, which means You would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). BOTH YOU AND PNEUMA AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution. For all Disputes, whether pursued in court or arbitration, you must first give Pneuma an opportunity to resolve the Dispute, which shall first be done by mailing Pneuma by first-class United States mail to: Pneuma Nitric Oxide, LLC, ATTN: Legal Department “INFORMAL DISPUTE RESOLUTION”, ADDRESS, with the following information: (1) your name, (2) your address, (3) a written description of your Dispute, and (4) a description of the specific relief sought. If the Parties do not resolve the Dispute within 60 days after receiving Your notification, then You may pursue Your Dispute in arbitration. You may pursue Your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt-Out. Notwithstanding the above, You or Pneuma may choose to pursue a Dispute in court and not by arbitration if: (a) the Dispute qualifies for initiation in small claims court; or (b) YOU OPT OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing the following information by first-class United States mail to Pneuma Nitric Oxide, LLC, ATTN: LEGAL DEPARTMENT “INFORMAL DISPUTE RESOLUTION”, ADDRESS: (1) your name; (2) your address; (3) a clear statement that You do not wish to resolve disputes with us through arbitration. Either way, Pneuma will not take personally any decision You make. In fact, Pneuma promises that your decision to opt out of this Provision will have no adverse effect on your relationship with us. But, Pneuma does have to enforce the Opt-Out Deadline, so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and You must pursue Your dispute in arbitration or small claims court.
Arbitration Procedures. If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution), either You or Pneuma may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration and shall in no event be commenced as a class action, representative action, or group or consolidated or coordinated arbitration that includes claimants other than yourself. All issues shall be for the arbitrator to decide, including the scope of this Provision. For arbitration before AAA, for disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action, representative action, or group or consolidated or coordinated action procedures or rules apply to the arbitration. Because the Agreement concerns interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law and will not have the power to award relief to, against, or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing and with a written statement of decision, signed by the arbitrator, which includes a determination of all the questions submitted to the arbitrator, the decision of which is necessary to determine the controversy. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or applicable state law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or Pneuma may initiate arbitration in either _____, Texas, or the federal judicial district that includes Your billing address.
Payment of Arbitration Fees and Costs – With respect to any good-faith Dispute, Pneuma will pay all reasonable arbitration fees (in excess of those filing fees the claimant would have to pay in a state court of general jurisdiction, which fees shall be paid by the claimant), hearing fees, and associated costs and expenses of the AAA and the arbitrator. However, You will still be responsible for payment of all additional fees and costs that You incur in the arbitration, which include but are not limited to your own attorney’s fees, costs, expenses, or expert witnesses. In addition to any fees and costs recoverable under applicable law, if You provide notice and negotiate in good faith with Pneuma as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that You are the prevailing party in the arbitration, You may be entitled to recover your reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver. Except as otherwise provided in this Provision, the arbitrator may not consolidate or coordinate more than one person’s claims and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, representative action, consolidated action, or private attorney general action) unless both You and Pneuma specifically agree in writing to do so following initiation of the arbitration. If You choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to You. You cannot be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
Arbitration Has No Jury. There is no jury in an arbitration, and the arbitration is not conducted in a public court. You understand and agree that by accepting this Provision in this Agreement, You and Pneuma are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, You and Pneuma might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that You would have if You went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited in arbitration or may also be waived.
Severability. If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.
Continuation. This Provision shall survive the termination of this Agreement. Notwithstanding any provision in this Agreement to the contrary, Pneuma agrees that if it makes any change to this Section XVII Dispute Resolution provision (other than a change to the Notice Address), You may reject any such change and require Pneuma to adhere to the language in this Provision if a Dispute arises.
XVII. GOVERNING LAW
The Federal Arbitration Act, applicable U.S. federal law, and the internal laws of the State of Texas, without regard to its choice of law or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations Convention on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms, or the Sites will be heard in the courts located in Travis County, Texas.
Except as set forth in the Dispute Resolution Provision in Section XVII, above, if any provision of this Agreement is found to be invalid by any court having competent jurisdiction or terminated in accordance with the Termination provision above, the invalidity or termination of such provision shall not affect the validity of any other provisions, including without limitation, which shall remain in full force and effect.
Our failure to act on or enforce any provision of these Terms shall not be construed as a waiver of that provision or any other provision in these Terms. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, these Terms constitutes the entire Agreement between you and us with respect to the subject matter and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. These Terms will inure to the benefit of our successors, assignees, licensees, and sublicensees. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability, and general provisions shall survive any termination of these Terms.
XIX. BILLING & CUSTOMER SUPPORT
We welcome all support inquires by the following methods:
Email Support: firstname.lastname@example.org
Customer service hours are 9am – 5pm, Monday through Friday (USA-Easter Standard Time). When emailing us, please include your full name and address, as well as the name of the Product(s) that you ordered.
Pneuma Nitric Oxide
Pneuma Nitric Oxide, LLC
Austin, Texas 78704
XX. CALIFORNIA CONSUMER NOTICE
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: This Site and Service are provided by Pneuma Nitric Oxide, LLC. If you have a question or complaint regarding the Site, please contact Customer Service at ____________. You may also contact us by writing to Pneuma Customer Support, ADDRESS. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
[CM1]Pneuma to review and confirm accuracy. Please also insert any specific terminology if applicable, or if there is a specific name for the Wholesale Agreement
[CM2] Pneuma – please review and confirm this is an accurate description of how this registration process occurs
[CM3] Is this an accurate description of this page or does it go by a different name on Pneuma’s website?