TERMS OF SALE

Mountain Hardwear sells products only to adults. If you are under 18, you may have your parent or guardian place an order for you. Mountain Hardwear reserves the right to refuse service, terminate accounts, and cancel orders in its sole discretion.

When you purchase from Mountain Hardwear, an account may be created by you as part of the checkout process. You are responsible for maintaining the confidentiality of your password and for restricting access to your password, and you agree to accept responsibility for all activities that occur under your account or with your password. If your account or password is compromised in any way, you will notify Mountain Hardwear immediately. Mountain Hardwear may take any action to maintain the security of its websites and your account, including, but not limited to, terminating your account, changing your password, or requesting additional information to authorize transactions on your account.

• Products on the Sites are intended for direct sale to end consumers only.
• You are prohibited from purchasing products for resale, or with the intent to resell the products to a third party. If Mountain Hardwear believes you are purchasing product for resale, Mountain Hardwear may take action against you including, but not limited to, restricting sales to you, cancelling your orders, or suspending or closing your account.
• To submit an order, accurately and completely provide the information required at checkout.
• We do not accept any method of payment other than those listed on the order page. In some cases, we may require prepayment. If payment is not received or cannot be processed for any reason, we may cancel your order.
• When you submit an order, we may send you an email acknowledging receipt of your order. Our acceptance of the order takes place when the products are shipped to you. If we are unable to fulfill your order, we will notify you and will not process your order.

You may return an unworn, unused item in its original packaging, in its original condition, with all original tags still attached, within 60 days of the date of purchase. A refund in the amount of the price paid for the item and applicable taxes will be issued to or in the form of your original method of payment. Any discounts applied at the time of purchase will be prorated per item based on price, and discount amount will be void. Shipping and handling for the delivery and return shipping charges will not be refunded. A copy of your original receipt may be required. For more information on returns, click here.

Mountain Hardwear may revise or discontinue products at any time without prior notice to you, and products may become unavailable to customers even after an order is placed. All prices are subject to change without notice.

Certain products come with a limited warranty. For information about which products come with a limited warranty and how to make a warranty claim, click here. EXCEPT AS EXPRESSLY SET FORTH IN THESE WRITTEN LIMITED WARRANTIES AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PRODUCTS ARE OFFERED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND MOUNTAIN HARDWEAR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. MOUNTAIN HARDWEAR IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, PRODUCT DESCRIPTIONS, TEXT OR IMAGES.

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING MAY NOT APPLY TO YOU IN WHOLE OR IN PART.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MOUNTAIN HARDWEAR, ITS DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, EXEMPLARY, INDIRECT, OR PUNITIVE DAMAGES,OR ANY OTHER DAMAGES OF ANY KIND, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY PURCHASE MADE ON THE SITES, EVEN IF MOUNTAIN HARDWEAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE AGGREGATE LIABILITY OF MOUNTAIN HARDWEAR (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), PRODUCT LIABLITY, STRICT LIABILITY OR OTHER THORY) ARISING OUT OF OR RELATING TO MOUNTAIN HARDWEAR’S OPERATION OF THE SITES OR OFFER TO SELL OR SALE OF PRODUCTS THEREON EXCEED $100 OR THE AMOUNT ACTUALLY PAID FOR THE PURCHASE OF PRODUCTS FROM THIS SITE, WHICHEVER IS LESS. THE LIMITATIONS IN THIS SECTION WILL NOT LIMIT OR EXCLUDE LIABILITY FOR MOUNTAIN HARDWEAR’S OWN GROSS NEGLIGENCE, FRAUD, WILLFUL INJURY OR WILLFUL VIOLATION OF LAW.

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND MOUNTAIN HARDWEAR TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND MOUNTAIN HARDWEAR FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND MOUNTAIN HARDWEAR AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. MOUNTAIN HARDWEAR AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.

FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT.

a. Arbitration Procedure. For any dispute or claim that you have against Mountain Hardwear, that Mountain Hardwear has against you or that you have, or Mountain Hardwear has, in each case arising from, relating to, or stemming from these Terms of Sale, Mountain Hardwear products, or Mountain Hardwear Services, or any aspect of the relationship between you and Mountain Hardwear as relates to these Terms of Sale, Mountain Hardwear products, or Mountain Hardwear Services, including any privacy or data security claims, (collectively, “Claims”, and each a “Claim”), you and Mountain Hardwear agree to attempt to first resolve the Claim informally via the following process. If you assert a Claim against Mountain Hardwear, you will first contact Mountain Hardwear by sending a written notice of your Claim (“Claimant Notice”) to Mountain Hardwear by certified mail addressed to Mountain Hardwear at Mountain Hardwear Inc., Attn: General Counsel, 14375 NW Science Park Drive, Portland, Oregon 97229. The Claimant Notice must (i) include your name, residence address, email address, and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought. If Mountain Hardwear asserts a Claim against you, Mountain Hardwear will first contact you by sending a written notice of Mountain Hardwear’s Claim (“Mountain Hardwear Notice”, and each of a Claimant Notice and Mountain Hardwear Notice, a “Notice”) to you via certified mail to the mailing address associated with your account or, if such information is not available, to the primary email address associated with your account, or to other contact information. The Mountain Hardwear Notice must (i) include the name of a Mountain Hardwear contact and the contact’s email address and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought. If you and Mountain Hardwear cannot reach an agreement to resolve the Claim within thirty (30) days after you or Mountain Hardwear receives such a Notice, then either party may submit the Claim to binding arbitration as set forth below. The statute of limitations and any filing fee deadlines shall be tolled for thirty (30) days from the date that either you or Mountain Hardwear first send the applicable Notice so that the parties can engage in this informal dispute-resolution process.

b. Except for individual disputes that qualify for small claims court and any disputes exclusively related to the intellectual property or intellectual property rights of you or Mountain Hardwear, including any disputes in which you or Mountain Hardwear seek injunctive or other equitable relief for the alleged unlawful use of your or Mountain Hardwear’s intellectual property or other infringement of your or Mountain Hardwear’s intellectual property rights (“IP Claims”), all Claims, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, including Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Section 11(a) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.

c. These Terms of Sale affect interstate commerce, and the enforceability of this Section 11 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq., to the extent permitted by law.

d. All Claims must be submitted to the American Arbitration Association (“AAA”) and will be resolved through binding arbitration before one arbitrator. If you are a consumer, the then-current version of the AAA’s Consumer Arbitration Rules will apply, which are available on the AAA’s website (adr.org), as amended by these Terms of Sale as follows:

1. YOU AND MOUNTAIN HARDWEAR AGREE THAT ANY ARBITRATION UNDER THESE TERMS OF SALE WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU AND MOUNTAIN HARDWEAR ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitrator may conduct only an individual arbitration and, except as described below for the additional procedures to govern if twenty-five (25) or more similar or coordinated claims are asserted against Mountain Hardwear or you by the same or coordinated counsel, may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual.
2. For any arbitration you initiate, you will pay the consumer filing fee, and Mountain Hardwear will pay the remaining AAA fees and costs. For any arbitration initiated by Mountain Hardwear, Mountain Hardwear will pay all AAA fees and costs.
3. For all arbitrations where the claims asserted are $25,000 or less, the arbitration shall be resolved according to the AAA’s Procedures for the Resolution of Disputes through Document Submission, and for all other arbitrations the following procedure will apply: (i) the arbitrator will conduct hearings, if any, by teleconference or videoconference rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate; (ii) any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; and (iii) if the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator.
4. If you or Mountain Hardwear submits a dispute to arbitration and the arbitrator orders any exchange of information, you and Mountain Hardwear agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and/or other materials that might be exchanged or the subject of discovery in the arbitration. You and Mountain Hardwear agree to seek such protection before any such information, documents, testimony, and/or materials are exchanged or otherwise become the subject of discovery in the arbitration.
5. The arbitrator’s decision will follow these Terms of Sale and will be final and binding. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of these Terms of Sale but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms of Sale will preclude you from bringing issues to the attention of federal, state, or local agencies and, if the law allows, they can seek relief against us for you.
6. The AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule will apply if twenty-five (25) or more similar claims are asserted against Mountain Hardwear or against you by the same or coordinated counsel or are otherwise coordinated. In addition to the application of the AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule, you and Mountain Hardwear understand and agree that when twenty-five (25) or more similar claims are asserted against Mountain Hardwear or you by the same or coordinated counsel or are otherwise coordinated resolution of your or Mountain Hardwear’s Claim might be delayed. For such coordinated actions, you and Mountain Hardwear also agree to the following coordinated bellwether process. Counsel for claimants and counsel for Mountain Hardwear shall each select ten (10) cases (per side) to proceed first in individual arbitration proceedings. The remaining cases shall be deemed filed for purposes of the statute of limitations but not for the purpose of assessing AAA fees. No AAA fees shall be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. If the parties are unable to resolve the remaining cases after the conclusion of the initial twenty (20) proceedings, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process. A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise. This bellwether process shall continue, consistent with the parameters identified above, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved. The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this bellwether process from the time the first cases are selected for a bellwether process until the time your or Mountain Hardwear’s case is selected for a bellwether process, withdrawn, or otherwise resolved. A court shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Mountain Hardwear or you.

e. One Year to Assert Claims. To the extent permitted by law, any Claim by you or Mountain Hardwear relating in any way to these Terms of Sale, Mountain Hardwear products, or Mountain Hardwear Services, or any aspect of the relationship between you and Mountain Hardwear as relates to these Terms of Sale, Mountain Hardwear products, or Mountain Hardwear Services, must be filed within one year after such Claim arises; otherwise, the Claim is permanently barred, which means that you and Mountain Hardwear will not have the right to assert the Claim.

f. Right to Opt Out. You have the right to opt out of binding arbitration within 30 days of the date you first accepted these Terms of Sale by providing us with notice of your decision to opt-out by certified mail addressed to Mountain Hardwear at Mountain Hardwear Inc., Attn: General Counsel, 14375 NW Science Park Drive, Portland, Oregon 97229. In order to be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 11.

g. Severability. If any portion of this Section 11 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms of Sale; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 11 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 11; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 11 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 11 will be enforceable.

Any dispute arising from or related to these Terms of Sale, your use of the Sites, Mountain Hardwear products, Mountain Hardwear Services, or any aspect of the relationship between you and Mountain Hardwear as relates to theseTerms of Sale shall be governed by and construed in accordance with the laws of the State of Oregon, applicable to agreements made and to be entirely performed within the State of Oregon, without resort to its conflict of law provisions and regardless of where you access the Sites. You agree that any action not required to be arbitrated in accordance with Section 11 of these Terms of Sale shall be filed only in the state and federal courts located in Multnomah County, Oregon and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any such suit, action or proceeding.

The remedies set forth in these Terms of Sale are cumulative and not exclusive, unless expressly stated otherwise. Failure or delay by Mountain Hardwear to enforce any provision of these Terms of Sale will not be deemed a waiver of future enforcement of that or any other provision. If any provision of these Terms of Sale shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Sale and shall not affect the validity and enforceability of any remaining provisions.