Conditions of Use

Matrix Industries, Inc. Terms and Conditions

(Last Updated November 2017)

 

Matrix Industries, Inc. (“Matrix”) has developed the Matrix PowerWatches ®, smartwatches powered by body heat (each, a “Watch”). These Terms and Conditions (the “Terms”) govern your use of our website located at https://www.matrixindustries.com/ and the sale of Watches on that website. PLEASE READ THESE TERMS CAREFULLY BEFORE USING ANY MATRIX SITE. These Terms constitute a legally binding agreement between you and Matrix (each a “Party,” and collectively the “Parties”). 

These Terms provide that all Disputes (as defined below) between you and Matrix will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS DESCRIBED in Section 14 (“Dispute Resolution and Arbitration”) below.  Please review Section 14 for the details regarding your agreement to arbitrate any disputes with Matrix.

As used in these Terms, the words “you” and “your” refer to you, the user of Matrix’s website and/or purchaser of a Watch, as the party agreeing to these Terms.  The words “we,” “us,” “our” and any other variation thereof refer to Matrix.  Any reference to Matrix in this Agreement includes our directors, officers, employees, contractors, owners, agents, licensors, or licensees.  As used in these Terms, the term “Site” includes the website at https://www.matrixindustries.com/, the website at https://igg.me/at/matrixpowerwatch  pages within these website, any equivalent mirrors, replacements, substitutes or backup websites, and pages that are associated with these websites.  The use of the word “including” in these Terms to refer to specific examples will be construed to mean “including, without limitation” or “including but not limited to” and will not be construed to mean that the examples given are an exclusive list of the topics covered.

1. ACCEPTANCE OF AGREEMENT. By accessing the Site or submitting a pre-order or order for a Watch, you agree to, and are bound by, the terms and conditions of these Terms.  If you do not agree to be bound by these Terms, do not use the Site and do not buy a Watch. 

 

2. Matrix may modify these Terms at any time by updating this posting. You are bound by any such modification and should therefore visit this page periodically to review these Terms.  Your continued use of the Site after a modification signifies your agreement to the modification.  If you have any questions about these Terms, please contact us at support@matrixindustries.com.
   
   

3. You agree to Matrix’s Privacy Policy (available at https://www.matrixindustries.com/PrivacyPolicy) which is incorporated by reference into these Terms as if it were set forth herein in its entirety.  The Privacy Policy describes our collection and possible use of information provided by you.  By using the Site, you agree to, and are bound by, the terms of the Privacy Policy.

 

4. Matrix does not sell Watches through its Site for or to children, but only to adults, who can purchase with a credit card or other permitted payment method. If you are under 18, you may purchase Watches only with involvement and consent of a parent or legal guardian. If you purchase a Watch on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.

 

5. CREATING AN ACCOUNT. In order to purchase Watches through the Site, you must create an account (“Account”).  When you set up your Account, you will be required to create log-in credentials by providing certain types of personal information including your name, a valid email address, a mailing address, and a strong password.  You are responsible for all activity that occurs in association with your Account.  Matrix is not liable for any loss or damages caused by your failure to maintain the confidentiality of your Account credentials.

 

6. CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION. By creating an Account with Matrix, you understand that we may send you communications regarding the Site and your Watch, including but not limited to: (a) notices about your use of the Site or the Watch, including any notices concerning violations of use and updates; and (b) promotional emails with information on goods or services in which we think you may have interest. We give you the opportunity to opt-out of receiving promotional electronic mail from us by following the opt-out instructions provided in the message.

 

7. ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION ON THE SITE. Descriptions, images, references, features, content, specifications, products, prices, and availability of any products or services including Watches (collectively, the “Content”) are subject to change without notice, and our current prices can be found on the Site. We make reasonable efforts to accurately display the attributes of our Watches, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any products or services on the Site at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the possession, use, and sale of any Watch purchased through the Site. By placing an order, you represent that the Watches ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any product or service; to honor or impose conditions on the honoring of, any coupon, coupon code, promotional code, or other similar promotions; to bar any user from making any or all purchases; and to refuse to provide any user with any product or service.

 

8. USE OF CONTENT ON THE SITE. The content contained on the Site, such as text, graphics, images, audio, video and other material, as well as the domain names, tagline, organization and user look-and-feel (collectively, the “Content”), is protected by copyright, trademark and other such laws in the United States, and is owned or controlled by Matrix or by third parties that have licensed their Content to Matrix. Unauthorized use of the Content may violate copyright, trademark, and other laws. Where the Site is configured to enable the download of particular Content, you may download one copy of such Content to a single computer for your personal, noncommercial home use only, provided that (a) you retain all copyright and other proprietary notices contained in the original Content, (b) you may not sell or modify the Content or reproduce, display, publicly perform, distribute, or otherwise use the Content in any way for any public or commercial purpose without the prior written permission of Matrix, and (c) you may not use the Content in a manner that suggests an association with any of our products, services or brands.
   
   You may not, without the prior written permission of Matrix, “mirror” on any other server any material contained on the Site. The use of the Content on any other website or in a networked computer environment for any purpose is prohibited, without the express written permission of Matrix. The trademarks, logos and service marks (the “Marks”) displayed on the Site are owned by Matrix or third parties. You are prohibited from use of those Marks without the express, written permission of Matrix or such third party. If you would like information about obtaining Matrix’s permission to use the Content on your website, e-mail support@matrixindustries.com.

 

9. TERMS OF SALE

 

• MAKING PURCHASES. You can browse and place orders for Watches through the Site. We’ll ask you for your name, phone number, e-mail address, shipping and billing address, and other information so that we can fulfill your order. When you place an order, Matrix’s third-party payment service provider will collect your credit card details and charge your credit card account in connection with the order, and you agree to make all applicable payments in connection with any order placed by you. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARDS OR OTHER PAYMENT MEANS USED TO INITIATE ANY TRANSACTION. Matrix does not view or store your credit card information. We store your shipping address so we can process your order through our fulfillment partner. If you purchase something from the Site, we associate that order with your Account. For more information on Matrix’s data use practices please see our Privacy Policy at https://www.matrixindustries.com/PrivacyPolicy.
  
  By placing an order through the Site, you agree that: (a) any credit card information supplied by you is accurate, current and complete; and (b) you will pay the applicable price listed, as well as any shipping and handling charges and applicable taxes. You agree that Watches purchased by you are for personal or gift use and not for commercial use.

 

• Matrix can withdraw Watches from the Site at any time and for any reason. Prices listed on the Site are stated in U.S. dollars, and do not include any shipping and handling charges or applicable taxes, which charges and taxes will be communicated to you before your order is accepted, and you are responsible for paying such charges and taxes to Matrix. You agree to indemnify and hold Matrix harmless from and against any liabilities, interest, penalties or fees assessed against Matrix arising from your failure to pay any such taxes. All Watch prices are subject to change at any time.

 

• ACCEPTANCE AND FULFILLMENT. All orders are subject to acceptance by Matrix. After you place an order, you will receive an email from Matrix confirming that Matrix has received your order. Acceptance of your order will occur upon your receipt of another email from Matrix containing a shipping confirmation, tracking number and carrier information. If an order is on back order, Matrix will send you an email indicating that this is the case, followed by another email when the items in question are in stock containing a shipping confirmation, tracking number and carrier information. Matrix reserves the right not to accept your order for any reason or no reason. Without prior notification, we maintain the right to limit the Watch order quantity and the right to refuse to sell Watches to any customer for any reason or no reason at all. If your order is cancelled, we will attempt to notify you using the e-mail address you have given us with the order.

 

• PRE-ORDERS. This Section 9(d) applies only to persons who have submitted pre-orders for Watches.

 

• Pre-Order Acceptance. Each pre-order you submit for a Watch constitutes an offer to purchase that Watch. Acceptance of your pre-order will occur upon your receipt of an email confirmation from Matrix once Watches are shipping to indicate whether your pre-order has been accepted or rejected. In this confirmation email, Matrix will ask you to confirm your shipping address.  Note that this may occur many months after you submit your offer to purchase a Watch.  If Matrix rejects your offer, Matrix will, as your sole and exclusive remedy and Matrix’s sole and exclusive liability, refund the amount you paid for the Watch.
  
  If you have any questions, comments, or concerns regarding Matrix’s pre-order acceptance policy, or if you believe that your pre-order was rejected in error, please contact Matrix at support@matrixindustries.com. If you do not confirm your shipping information within 30 days of Matrix’s confirmation email, Matrix may, at its sole discretion, provide you a full refund of the amount you paid or continue to attempt to contact you. Matrix will make reasonable efforts to contact you to provide a refund after that 30 day period, but if Matrix does not receive a response from you within 90 days of Matrix’s confirmation email, or if Matrix is not able to process your refund after that 30 day period (for example, due to a cancelled credit card), then Matrix will treat the amount that you paid as unclaimed property in accordance with applicable law.

 

• Pre-Order Refunds. If you request a refund at any time before we accept your pre-order, we will process it promptly, and we will refund the full amount you paid. Once you provide your shipping address and we have accepted your offer, the policy in the immediately preceding sentence no longer applies. Instead, when Matrix begins shipping Watches, Matrix’s Return Policy and Limited Product Warranty will apply. Matrix’s Return Policy and Limited Product Warranty is available at https://www.matrixindustries.com/shipping-returns.

 

• Pre-Order Shipping and Delay. Shipping of pre-orders will commence no sooner than July 1, 2017, and may commence substantially later. Any shipping date is an estimate only, and the actual shipping date for any accepted pre-order will depend on a variety of factors including manufacturing schedule, the dates of your pre-order, and when we accept your completed pre-order. Commencement of shipping is subject to change without notice to you.

 

• RESALE. Purchases made through the Site are intended for end users only, and are not authorized for resale.

 

• SHIPMENT. We will ship the Watch that you purchase via the carrier and shipping method of our choice, on such other terms and conditions that we may disclose to you at the time of your purchase. We do not guarantee the services of any shipping service, and delivery dates and times are not guaranteed. We will, however, use commercially reasonable efforts to dispatch the Watch to you as soon as practicable after you place your order. During busy times, such as holiday periods and periods of inclement weather, there may be additional processing and shipping delays. You agree to not hold Matrix liable for any shipping issues including, without limitation, any loss, damage, or penalty resulting from any delay in shipment or delivery.
  
  Most package carriers have a short time frame in which to initiate claims. We recommend that you inspect your package for damage immediately upon arrival. If there is a problem, contact the delivery service immediately to resolve any problems. Title to the Watches (except to the extent that the Watches consist of software) and risk of loss will pass to you upon Matrix’s delivery of the Watches to the carrier. At our discretion, we may choose to halt, or alter, the delivery of an order, even though it is in the hands of a delivery agent or shipping company. We may do this as a customer service or in cases where we suspect fraud. You agree to pay any additional charges that may arise to do circumstances in which we take such action. We reserve the right to ship partial orders (at no additional cost to you), and the portion of any order that is partially shipped may be charged at the time of purchase.

 

• TAXES. Import duties, taxes, and other charges are not included in the Watch price or shipping cost. Matrix is responsible for sales taxes charged to California-based customers; all other charges are your responsibility. Please check with your state and country's customs office to determine what these additional costs will be prior to completing your order. If you have placed a pre-order and discovered that such taxes make your pre-order untenable for you, please contact Matrix to rescind your pre-order, and we will refund the amount you paid in connection with your pre-order in full.

 

• EXPORT CONTROL. The Site and sale of the Watch may be subject to the export control laws and regulations of the United States and other countries, and may be subject to import regulations in other countries. Accordingly, if Matrix ships a Watch to you, the Watch may be impounded or otherwise confiscated by customs or other authorities. You are responsible for compliance with all applicable export control laws and regulations. You represent that you will not export, re-export, or transfer indirectly or directly any Watch outside of the United States without obtaining proper authorization from the applicable government agencies. Without limiting the immediately preceding sentence, you will not export, re-export, or transfer directly or indirectly any Watch to: (i) an embargoed/terrorist supporting country or any other country as determined and prohibited by the U.S. government; (ii) a person or entity barred by the U.S. Government on export activity lists, including persons or entities on the Treasury Department Specially Designated National List, Entities List, and Denied Persons List; or (iii) any destination for an end use that is prohibited by applicable law. You will defend and hold Matrix harmless against all claims, damages, or liability resulting from any breach of the foregoing.

 

• LIMITED WARRANTY AND DISCLAIMER. Matrix provides certain limited warranties to our Watches. The terms of Matrix’s limited warranties are provided in Matrix’s Return Policy and Limited Product Warranty available at https://www.matrixindustries.com/shipping-returns.  By submitting an order or pre-order to us, you acknowledge and agree that you have reviewed the limited warranty for the Watch you offered to purchase, and that you accept that limited warranty. Matrix will also provide the warranty terms for a Watch together with the shipped Watch. EXCEPT AS MAY BE EXPRESSLY PROVIDED BY MATRIX IN THE WARRANTY APPLICABLE TO A WATCH AT THE TIME THE ORDER FOR THE WATCH IS ACCEPTED, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WATCHES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT GUARANTEED WARRANTY OF ANY KIND, AND MATRIX HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE WATCH, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. MATRIX DOES NOT WARRANT THAT USE OF THE SITE, OR ANY MATERIALS OR CONTENT OFFERED ON THE SITE OR THE USE OF ANY WATCH WILL BE UNINTERRUPTED OR FREE OF ERRORS OR OTHER HARMFUL COMPONENTS, AND DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
  
  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SITE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE WILL CREATE ANY WARRANTY REGARDING MATRIX OR THE SITE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SITE, YOUR DEALING WITH ANY OTHER SITE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SITE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SITE AND ANY ASSOCIATED SITES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SITE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SITE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.

 

• RETURN POLICY AND LIMITED PRODUCT WARRANTY. Sales on the Site are subject to Matrix’s Return Policy and Limited Product Warranty, available at https://www.matrixindustries.com/shipping-returns.

 

10. LIMITATION OF LIABILITY. To the extent not prohibited by law, under no circumstances shall Matrix, its subsidiaries, partners, or affiliates, be liable to you for:  (a) personal injury or any indirect, incidental, consequential, special or exemplary damages, arising from or relating to these Terms, the use or inability to use the Site (even if Matrix knows or has been advised of the possibility of such damages), including, but not limited to, damages for loss or corruption of data or documentation or service interruptions, The Use of or inability to use an account, the sale, purchase or use of or inability to use a Watch, or Matrix’s or your liabilities to third parties arising from any source; or (b) except as required under applicable law, any indirect, incidental, consequential, special or exemplary damages, arising from or relating to the conduct of you or anyone else in connection with the use of the Site or your account including, but not limited to, damages arising from your failure to provide Matrix with accurate information or a third party’s failure to correctly verify such information. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY. ACCORDINGLY, SOME OF THIS SECTION 10 MAY NOT APPLY TO YOU. You agree that if any lawsuit or court proceeding is permitted under these Terms, the aggregate liability of Matrix and its affiliates and suppliers to you for all claims arising out of or related to these Terms or your use or inability to use a Watch will not (other than as may be required by applicable law in cases involving personal injury) exceed the greater of: (a) the amount you paid to Matrix during the twelve (12) months immediately preceding the events or omissions giving rise to such damages, or (b) the amount of one hundred U.S. dollars ($100.00).  These limitations will apply even if the above stated remedy fails of its essential purpose.

 

11. INDEMNIFICATION. You agree to release, indemnify, and hold harmless Matrix and its affiliates, and their respective officers, directors, employees and agents, from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way related to: (a) your access to, use of, or inability to use the Site ; (b) your breach or alleged breach of these Terms; (c) your violation or alleged violation of any rights of a third party; (d) your violation of any applicable laws or regulations; or (e) any negligent acts, omissions, or willful misconduct by you.  Matrix reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and, in such case, you shall agree to cooperate with Matrix’s defense of such claim. You agree not to settle any matter without the prior written consent of Matrix. Matrix will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

 

12. NO MEDICAL ADVICE. MATRIX DOES NOT OFFER MEDICAL ADVICE. ANY CONTENT ACCESSED THROUGH THE SITE IS FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED TO COVER ALL POSSIBLE USES, DIRECTIONS, PRECAUTIONS, DRUG INTERACTIONS, OR ADVERSE EFFECTS. THE CONTENT SHOULD NOT BE USED DURING A MEDICAL EMERGENCY OR FOR THE DIAGNOSIS OR TREATMENT OF ANY MEDICAL CONDITION. PLEASE CONSULT YOUR DOCTOR OR OTHER QUALIFIED HEALTH CARE PROVIDER IF YOU HAVE ANY QUESTIONS ABOUT A MEDICAL CONDITION, OR BEFORE TAKING ANY DRUG, CHANGING YOUR DIET, OR COMMENCING OR DISCONTINUING ANY COURSE OF TREATMENT. DO NOT IGNORE OR DELAY OBTAINING PROFESSIONAL MEDICAL ADVICE BECAUSE OF INFORMATION ACCESSED THROUGH THE SITE. CALL 911 OR YOUR DOCTOR FOR ALL MEDICAL EMERGENCIES.

 

13. TERM AND TERMINATION. Subject to this Section 13, these Terms will remain in full force and effect while you use the Site. We may suspend or terminate your rights to use the Site (including your Account) at any time, and from time-to-time, for any reason in our sole discretion, including for any use of the Site in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Site will terminate immediately. We will not have any liability whatsoever to you for any termination of your rights to use the Site, including for termination of your Account. You may cancel your Account at any time by contacting us. Even after your rights under these Terms are terminated, all provisions of these Terms which by their nature should survive, will survive, including, without limitation, ownership provisions, indemnification, warranty disclaimers, and limitations of liability.

 

14. DISPUTE RESOLUTION AND ARBITRATION. The term “Dispute” means any dispute, claim or controversy between you and Matrix arising out of, or relating to, the Site, these Terms, your Account, or a Watch, including without limitation, the sale, purchase, or use of any Watch sold by Matrix, whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this “DISPUTES RESOLUTION AND ARBITRATION” section (with the exception of the enforceability of the “CLASS ACTION WAIVER” clause below). “Dispute is to be given the broadest possible meaning that will be enforced.  You agree that any Dispute between you and Matrix will be governed by the arbitration procedures outlined below

 

• Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Arbitration Agreement carefully. It is part of your contract with Matrix and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

 

• MANDATORY BINDING ARBITRATION. In the interest of resolving Disputes between you and Matrix in the most expedient and cost effective manner, you and Matrix agree that every Dispute will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND MATRIX ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

 

• Exceptions. Despite the provisions of Section 14(a)(vi), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.

 

• Arbitrator. Any arbitration between you and Matrix will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Matrix.

 

• Notice; Process. A party who intends to seek arbitration must first send a written notice of the Dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Matrix's address for Notice is: 1440 O'Brien Dr, Suite A-1, Menlo Park, CA 94025. The Notice must: (a) describe the nature and basis of the claim or Dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Matrix may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Matrix must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the Dispute is finally resolved through arbitration in your favor, Matrix will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Matrix in settlement of the Dispute prior to the arbitrator's award; or (iii) $1,000.

 

• Fees. If you commence arbitration in accordance with these Terms, Matrix will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Mateo County, California, USA, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Matrix for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve Disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.

 

• CLASS ACTION WAIVER. YOU AND MATRIX AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Matrix agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.

 

• Modifications to this Arbitration Provision. If Matrix makes any future change to this arbitration provision, other than a change to Matrix's address for Notice, you may reject the change by sending us written notice within 30 days of the change to Matrix's address for Notice, in which case your account with Matrix will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive.

 

• Confidentiality. All aspects of the arbitration proceeding, including, but not limited to, the award of the arbitrator and compliance therewith, shall be strictly confidential. You and Matrix agree to maintain confidentiality unless otherwise required by law. This section shall not prevent a party from submitting to a court of law any information necessary to enforce these Terms, to enforce an arbitration award, or to seek injunctive or equitable relief.

 

• Survival of Agreement. This arbitration agreement will survive the termination of your relationship with Matrix.

 

• Enforceability. If Section 14(a)(vi) is found to be unenforceable or if the entirety of this Section 14(a) is found to be unenforceable, then the entirety of this Section 14(a) will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 15 will govern any action arising out of or related to these Terms.

 

• Right to Opt Out of Mandatory Arbitration and Class Action Waiver. You may opt out of the foregoing arbitration and class action waiver provisions of these Terms by NOTIFYING MATRIX IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW.  To opt out, you must send a written notification to Matrix at Attention: Legal, Matrix Industries, Inc., 1440 O'Brien Dr, Suite A-1, Menlo Park, CA 94025, that includes (i) your name; (ii) your address; (iii) your telephone number; (iv) your email address; and (v) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action waiver sections.

 

15. GOVERNING LAW AND JURISDICTION. These Terms will be deemed entered into in California and will be governed by and interpreted in accordance with the laws of the State of California, excluding: (a) that body of law known as conflicts of law, and (b) the United Nations Convention on Contracts for the International Sale of Goods. .  In the event that the agreement to arbitrate in Section 14 above is found not to apply to you or your claim, you and Matrix agree that any judicial proceeding will be brought in the federal or state courts in, or closest to, San Mateo County, California. Both you and Matrix consent to venue and personal jurisdiction there. You and Matrix both agree to waive their right to a jury trial.  In addition, either you or Matrix may assert claims, if they qualify, in small claims court in San Mateo County, California or any United States county where you live or work.

 

16. GENERAL TERMS.

 

• WAIVER. Matrix’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision.  The waiver by Matrix of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Matrix. Except as expressly set forth in these Terms, the exercise by either you or Matrix of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

 

• ENTIRE AGREEMENT. These Terms constitute and contain the entire agreement between you and Matrix with respect to the subject matter hereof and supersede any prior or contemporaneous oral or written agreements. You and Matrix acknowledge and agree that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein.

 

• SURVIVAL. All provisions of these Terms that by their nature extend beyond the expiration or termination of these Terms, including, without limitation, Sections 2, 3, 6-12, 14, 15 and definitions herein as applicable to interpretation of the foregoing shall survive the termination of these Terms.

 

• SEVERABILITY. If any provision of these Terms (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of these Terms shall not be affected thereby and shall be binding upon the Parties and shall be enforceable, as though said invalid or unenforceable provision (or portion thereof) were not contained in these Terms.

 

• ASSIGNMENT. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without Matrix’s prior written consent. Matrix may assign these Terms at any time without notice or consent.  Subject to the foregoing, these Terms will bind and inure to the benefit of you and Matrix, their successors and permitted assigns.

 

• HEADINGS. The headings, captions, headers, footers and version numbers contained in these Terms are intended for convenience or reference and shall not affect the meaning or interpretation of these Terms.

 

• CHILDREN. The Site is not directed toward children under 13 years of age nor does Matrix knowingly collect information from children under 13. If you are under 13, please do not submit any personally identifiable information to Matrix.

 

• CONSUMER COMPLAINTS. In accordance with California Civil Code §1789.3, if you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

 

• QUESTIONS. If you have any questions, complaints or claims with respect to the Site, please contact us. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

 

      Contact Information:

     

      Matrix Industries, Inc.

      1600 Adams Dr

      Suite 123

      Menlo Park, CA 94025

 

      Email: support@matrixindustries.com