Updated and effective: August 1, 2020
These Terms and Conditions (“Terms”) apply to the website (the “Site”) operated by The Air Lab, Inc. d/b/a Windmill (“Windmill”, “we”, or “us”) where these Terms are posted. Please read these Terms carefully. By using this Site, you agree to these Terms as well as any other terms, guidelines or rules that apply to any portion of this Site, without limitation or qualification. If you do not agree to these Terms, then you should discontinue use of the Site. If you have any questions about these Terms, please contact us at email@example.com.
We provide the Site in order to enable you to learn about and browse Windmill air products (collectively, the “Products”). The Products may only be available in limited quantities during calendar year 2020 and thereafter.
No part of the Site is directed to persons under the age of majority in their place of residence (18 in most states). IF YOU ARE A MINOR, YOU ARE NOT PERMITTED TO USE OR ACCESS THE SITE AT ANY TIME OR IN ANY MANNER.
If you are using the Site on behalf of a company, entity or organization (collectively, “Organization”), then you represent and warrant that you (a) are an authorized representative of that Organization; (b) have the authority to bind that Organization to these Terms; and (c) agree to be bound by these Terms on behalf of that Organization.
All trademarks, service marks, and trade names (collectively the “Marks”) that appear on this Site and all Content on this Site are either the property of Windmill or our licensors. Unless otherwise noted, all Content included on this Site, including images, illustrations, designs, icons, photographs, video clips software, data, information, and other materials is the property of Windmill or its licensors, partners or affiliates and is protected by United States and international copyright and trademark laws. The compilation of this Site is the exclusive property of Windmill and is protected by United States and international intellectual property laws. Any unauthorized use of any Content or Marks is strictly prohibited and may violate copyright and trademark laws, and/or the laws of privacy, publicity, and/or communications regulations and statutes. You may use the Content and Marks only with our prior written and express authorization.
LIMITED LICENSE AND SITE ACCESS
We grant you a limited license to use the Site for personal use only. Consequently, this grant does not allow you to do any of the following: (a) resell or make any commercial use of this Site, any Content, or the Marks; (b) modify, adapt, translate, reverse engineer, decompile, disassemble or convert into human readable form any of the Content not intended to be so read (this includes using or directly viewing the underlying HTML or other code from this Site except as interpreted and displayed in a web browser); (c) copy, imitate, mirror, reproduce, distribute, publish, download, display, perform, post or transmit any Content or Marks in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording or otherwise; or (d) use any data mining, bots, spiders, automated tools or similar data gathering and extraction methods on the Site or to collect any information from the Site or any other user of the Site.
ACCOUNTS, FORMS, REGISTRATIONS AND PASSWORDS
You represent and warrant that the information you provide to Windmill through the Site will be true, accurate, current, and complete.
To facilitate purchases on the Site, we may require you to create an account. If you do create an account, your account is personal to you, and you should not share your account information with, or allow access to your account by, any third party. As you will be responsible for all activity that occurs under your access credentials, you agree to use reasonable efforts to prevent unauthorized access to or use of the Site and to preserve the confidentiality of your username and password, and any device that you use to access the Site.
From time to time, Windmill may offer promotional benefits to individuals in accordance with parameters and rules determined by Windmill in its sole discretion, such as free product or price discounts. These benefits may be redeemable towards a purchase of product on the Site, subject to both product availability and to certain merchandise exclusions or any other restrictions as may be determined and communicated by Windmill in its sole discretion. These benefits cannot be redeemed for cash or any cash equivalent; no substitutions or credits allowed.
From time to time, Windmill may also engage spokespeople, influencers, bloggers, or other individuals or entities who have been compensated or incentivized to speak on behalf of the brand. When you receive an offer code via a third party source, such as a television or radio show host, please note that such individuals may have been compensated by Windmill for their statements.
We appreciate hearing from our users and welcome your comments regarding the Site. Please be advised, however, that if you send us creative ideas, suggestions, inventions, or materials (“Creative Ideas”), we will: (a) own, exclusively, all now known or later discovered rights to the Creative Ideas; (b) not be subject to any obligation of confidentiality and will not be liable for any use or disclosure of any Creative Ideas; and (c) be entitled to unrestricted use of the Creative Ideas for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.
CONTENT YOU SUBMIT TO WINDMILL
From time to time, Windmill may allow you to post reviews, comments, photos, or similar materials on the Site (collectively, “User-Generated Content”). We welcome your comments regarding our Products and services, including our Site. However, any User-Generated Content you submit to Windmill must be original, must not infringe on another party’s intellectual property, proprietary, or other rights, and must not harass, slander, malign, libel, defame, threaten, or otherwise violate any rights of any third-parties and must not include any profanity, obscene, indecent, pornographic, defamatory or unlawful material.
By posting any User-Generated Content on the Site, you hereby grant Windmill an unrestricted, assignable, sublicensable, perpetual, royalty-free, fully paid up license throughout the world to reproduce, distribute, publicly display, transmit, communicate to the public, publicly perform on a through-to-the-audience basis, create derivative works from, and otherwise use and exploit (collectively, “Use”) all User-Generated Content you post to the Site, for any purpose, including promoting and marketing Windmill and the Products. You further grant Windmill a royalty-free license to use the name, image, and likeness of any person identifiable in any User-Generated Content you post to the Site. By posting any User-Generated Content, you waive any and all rights of publicity, privacy or any other rights of a similar nature, in addition to any moral rights you may have in your User-Generated Content. Except for Content provided to you by Windmill through the Site, you represent, warrant, and covenant that (a) you either are the sole and exclusive owner of User-Generated Content that you post to the Site, or you have all rights, licenses, consents, and releases that are necessary to grant to Windmill the rights in your User-Generated Content as contemplated under the Terms, and (b) the User-Generated Content you post to the Site do not (i) infringe, misappropriate or violate the rights of any party or entity, including a third party’s patent, copyright, trademark, trade secret, moral rights, rights of publicity, rights of privacy or other intellectual property or proprietary rights; (ii) constitute or result in defamation, libel, slander, or the violation of any applicable law or regulation (including, without limitation, restrictions on obscenity, child pornography, wiretap laws or other similar restrictions on nonconsensual recording, or otherwise); (iii) require Windmill to obtain any licenses from or make any payments in any amounts to any third party throughout the world; or (iv) introduce viruses, time-bombs, worms, cancel bots, Trojan Horses and/or other harmful or malicious code.
ELECTRONIC COMMUNICATION POLICY
When you visit the Site or send us e-mails, you are communicating with us electronically. In so doing, you consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communication be in writing.
DIGITAL MILLENNIUM COPYRIGHT ACT
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials posted on the Site infringe your copyright, you (or your agent) may send Windmill a “Notification of Claimed Infringement” requesting that the material be removed or access to it blocked. The notice must include the following information:
A physical or electronic signature of a person authorized to act on behalf of the owner of the works that have been allegedly infringed;
Identification of the copyrighted work alleged to have been infringed (or if multiple copyrighted works located on the Site are covered by a single notification, a representative list of such works);
Identification of the specific material alleged to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Windmill to locate the material on the Site;
Your name, address, telephone number, and e-mail address (if available);
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 owner, its agent, or the law; and
A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Windmill a counter-notice.
Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. Notices and counter-notices with respect to the Site should be sent to firstname.lastname@example.org.
LINKS TO OTHER WEBSITES
The Site may include links to third party websites not owned by Windmill. You are responsible for evaluating whether you want to access or use them. We are not responsible for and do not endorse any features, content, advertising, products, or other materials on other websites s. You assume all risk and we disclaim all liability arising from your use of them. Please be aware that we are not and cannot make any claim or representation regarding, and we accept no responsibility for, the quality, content, nature or reliability of web sites accessible from this Site, or web sites linking to this Site.
USE OF THE SITE
You agree to use the Site only for its intended purpose. You must use the Site in compliance with all privacy, data protection, intellectual property, and other applicable laws. The following uses of the Site are prohibited. You may not:
- attempt to interfere with, harm, reverse engineer, steal from, or gain unauthorized access to the Site, user accounts, or the technology and equipment supporting the Site;
- frame or link to the Site without permission;
- use data mining, robots, or other data gathering devices on or through the Site;
- post incomplete, false, or misleading information, impersonate another person, or misrepresent your affiliation with a person or entity;
- disclose personal information about another person or harass, abuse, or post objectionable material;
- post advertising or marketing links or content, except as specifically allowed by these Terms;
- use the Site in an illegal way or to commit an illegal act in relation to the Site or that otherwise results in fines, penalties, and other liability to Windmill or others; or
- access the Site from a jurisdiction where it is illegal or unauthorized.
We do not represent or guarantee the truthfulness, accuracy, or reliability of content, posted by third parties. You accept that any reliance on material posted by third-party service providers will be at your own risk. By using the Site you accept the risk that you might be exposed to content that is objectionable or otherwise inappropriate. We may change, suspend, or discontinue any aspect of the Site at any time, including hours of operation or availability of the Site or any feature, without notice or liability.
We are not responsible for any disputes or disagreements between you and any third party you interact with using the Site. You assume all risk associated with dealing with third parties. You agree to resolve disputes directly with the other party. You hereby release Windmill of all claims, demands, and damages in disputes among users of the Site. You also agree not to involve us in such disputes. Use caution and common sense when using the Site.
We make no representations about accuracy, reliability, completeness, or timeliness of any Content. Similarly, we make no representations about accuracy, reliability, completeness, or timeliness of any data from a third-party service provider or the quality or nature of third-party products or services obtained through the Site. Use the Site at your own risk.
“Released Parties” include The Air Lab, Inc. and its affiliates, officers, employees, agents, partners, and licensors.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (a) YOUR USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK, AND THE SITE, SERVICES, AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES LISTED ON THE SITE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (b) THE RELEASED PARTIES MAKE NO WARRANTY THAT (i) THE SITE OR CONTENT WILL MEET YOUR REQUIREMENTS, (ii) THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR CONTENT WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY GOODS OR SERVICE AVAILABLE ON THE SITE WILL MEET YOUR EXPECTATIONS, OR (v) ANY ERRORS IN THE SITE WILL BE CORRECTED; AND (c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE THAT RESULTS FROM THE USE OF ANY SUCH MATERIAL.
LIMITATION ON LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE RELEASED PARTIES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WINDMILL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SITE; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE SITE; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON THE SITE; (e) YOUR RELIANCE ON CONTENT MADE AVAILABLE BY US; OR (f) ANY OTHER MATTER RELATING TO THE SITE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU. TO THE FULLEST EXTENT POSSIBLE BY LAW, THE RELEASED PARTIES’ MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SITE OR YOUR USE OF WINDMILL CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $100.
You agree to defend, indemnify, and hold harmless the Released Parties from and against any claims, actions, or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from (i) your use of or reliance on any third-party content, (ii) your use of or reliance on any Windmill Content, or (iii) your breach of these Terms. We will provide notice to you promptly of any such claim, suit, or proceeding.
You agree to indemnify and hold The Air Lab, Inc. d/b/a Windmill, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third-party claims relating to (a) your use of the Site (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
CHOICE OF LAW; ARBITRATION
These Terms and the relationship between you and Windmill are governed by and will be construed under the laws of the State of New York without regard to the conflicts of laws provisions thereof. For all purposes of these Terms, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, New York County, New York, or the Southern District of New York.
Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in New York County, New York, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. TO THE EXTENT THAT YOU HAVE IN ANY MANNER VIOLATED OR THREATENED TO VIOLATE OUR INTELLECTUAL PROPERTY RIGHTS, WE MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE RELIEF IN ANY STATE OR FEDERAL COURT IN THE STATE OF NEW YORK.
Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. As an alternative, you may bring your claim in your local “small claims” court, if permitted by that small claims court's rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring claims only on your own behalf. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if we are a party to the proceeding. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services or these Terms of Services must be filed within one (1) year after such claim of action arose or be forever banned.
Notwithstanding any of these Terms, we reserve the right, without notice or attendant liability, and in our sole discretion, to terminate your license to use this Site, and to block or prevent future access to and use of this Site for any reason or no reason. Upon termination, these Terms will still apply.
WE RESERVE THE RIGHT TO UPDATE AND REVISE THESE TERMS AT ANY TIME
We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice on the www.windmillair.com website, by sending you an email, and/or by some other means.
If you use the Services after we change the Terms, you then agree to all of the changes.
Our failure to partially or fully exercise any rights or our waiver of any breach of these Terms by user shall not prevent our subsequent exercise of such right or be deemed a waiver by us of any subsequent breach by you of the same or any other term of these Terms. Our rights and remedies under these Terms and any other applicable agreement between you and us shall be cumulative, and the exercise of any such right or remedy shall not limit our right to exercise any other right or remedy.
If any of these Terms is be deemed invalid, void, or for any reason unenforceable, that term will be severed and will not affect the validity and enforceability of any remaining term or condition.