Terms of service

THUMB-PER, INC. / THUMBPRO® TERMS OF SERVICE

EFFECTIVE DATE: February 19, 2024
LAST UPDATED: November 21, 2024

PLEASE READ THESE TERMS OF SERVICE (“TERMS”), PROVIDED BY THUMB-PER, INC., A MASSACHUSETTS CORPORATION (“THUMB-PER,” “THUMBPRO,” “US,” OR “WE” OR “OUR”) CAREFULLY. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THESE TERMS, OUR PRIVACY POLICY, OR ANY OTHER TERMS THAT YOU HAVE ENTERED INTO WITH US (COLLECTIVELY, THE “AGREEMENT”), THEN YOU DO NOT HAVE OUR PERMISSION TO USE AND/OR ACCESS THUMBPRO SERVICES (AS DEFINED BELOW). BY ACCESSING OR USING THUMBPRO SERVICES, AN INDIVIDUAL (“USER,”, “CUSTOMER”, “YOU,” OR “YOUR”) AGREE TO BE BOUND BY THE TERMS DESCRIBED HEREIN AND ALL TERMS INCORPORATED BY REFERENCE, INCLUDING PRIVACY POLICY AND COMMUNITY GUIDELINES, WHICH FORM A LEGALLY BINDING CONTRACT WITH YOU AND THUMBPRO. AS FURTHER DESCRIBED BELOW, THE TERMS INCLUDE PROVISIONS REGARDING FUTURE CHANGES TO THE AGREEMENT, LIMITATIONS OF LIABILITY, PRIVACY, WAIVER OF CLASS ACTIONS, AND RESOLUTION OF DISPUTES BY ARBITRATION INSTEAD OF IN COURT. FOR CONSIDERATION FOR USING OUR PLATFORM, SERVICES, AND PRODUCTS, YOU EXPRESSLY AGREE TO THE FOLLOWING TERMS.

SECTION 1 | ACCEPTANCE OF TERMS

These Terms incorporate by reference our Privacy Policy and Terms of Sale and Service. You acknowledge that You have read and understood the Terms, accept the Terms, and agree to be bound by them. If you don’t agree with, cannot comply with, or are not eligible to use or access the ThumbPRO’s Services, then your only option is to not use or access the ThumbPRO’s Services, and Platform.

You must be at least 13 years old to access and use the ThumbPRO Services, described in below in section.

By agreeing to these Terms, you represent and warrant to us that: (i) you are at least 13 years old; (ii) you have not previously been suspended or removed from otherwise using or accessing the ThumbPRO Services;(iii) your use of the ThumbPRO Website (defined below) or ThumbPRO Services is in compliance with any and all applicable laws and regulations, including university or NCAA regulations; and (iv) any registration information that you submit to ThumbPRO is true, accurate, and complete, and you agree to keep it that way at all times. No part of the ThumbPRO Services is directed to persons under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE THUMBPRO SERVICES AT ANY TIME OR IN ANY MANNER.

SECTION 2 | MODIFICATION OF THE TERMS

ThumbPRO may modify these Terms and we encourage you to review these Terms regularly. Any changes or modifications shall be effective immediately upon posting the revisions to the www.baseballthumbguard.com (the “Website” or “Site”), and You will be bound by the revised Terms. If material changes to these Terms are made, ThumbPRO may notify you by posting a notice on the ThumbPRO Website or by sending You a notice by email or text (or similar format) to the address registered with your Account (as defined below). We may also indicate at the top of this Agreement when these Terms were last updated. Your continued use and access of the ThumbPRO Services after modification of these

Terms mean that you accept all modified Terms. Notwithstanding the foregoing, a modification to Section

17 (“MANDATORY ARBITRATION, CLASS ACTION WAIVER, AND OPT-OUT”) shall be communicated in accordance with Section 17.

SECTION 3 | DESCRIPTION OF THUMBPRO WEBSITE & THUMBPRO SERVICES

ThumbPRO provides baseball and softball thumb guards as sport accessories that assist in protecting against bat sting that is developed and designed to enable better baseball or softball batting performance through the ThumbPRO Service ready products, including its website, which is accessible at www.baseballthumbguard.com and without limitation, a mobile application on iOS and Android, and related social media platform(s) (collectively, the “ThumbPRO Platform”). We also offer ThumbPRO Product (defined below in Section 4(b)) for purchase on the Website and Platform. The ThumbPRO Website, the ThumbPRO Platform, is collectively referred to as the “ThumbPRO Services.”. ThumbPRO provides use and access to the ThumbPRO Services to its end users (the “Users”, “Customer”, or “You/r”) via affiliate and non-affiliate services to obtain ThumbPRO Products. You may use the ThumbPRO Services only in geographical locations where the ThumbPRO Services are offered (the “Territory”). We reserve the right to prevent any and all use of the ThumbPRO Services that are not in the Territory.

SECTION 4 | ACCESS TO THUMBPRO SERVICES

ThumbPRO Services. The ThumbPRO Services are the property of ThumbPRO. By using the ThumbPRO Services and/or creating an Account (whether through ThumbPRO Services or a third party), You agree to be bound by these Terms which shall continue to apply for as long as You are accessing or using the ThumbPRO Services. When the User is no longer accessing the ThumbPRO Platform, subscribed to an existing Account, or using any ThumbPRO Services, the User’s legal obligations and liabilities towards ThumbPRO that have accrued over time shall be unaffected by this cessation. For Users accessing the ThumbPRO Services through a third-party website, social network or mobile applications provider, You also agree to comply with the applicable third party’s terms of service or use, as applicable. ThumbPRO reserves all rights not expressly granted in these Terms of Service.

You agree to abide by Your Responsibilities (as stated in Section 7) and not to access and/or use the ThumbPRO Services or any part thereof in any manner not expressly permitted by the Agreement. Except for the rights expressly granted to You in the Agreement, ThumbPRO grants no right, title, or interest to Users in the ThumbPRO Services.

ThumbPRO Product.
“Product/s” shall mean ThumbPRO’s proprietary thumb guard goods, for sale on the Website.

Account.
When accessing the ThumbPRO Services, You may create an account with Us (Your “Account”) and you may be required to maintain an account with the third party social networking site (such as Meta, Inc.) through which You access the ThumbPRO Services. Once You create an Account, Your Account will allow you to access the ThumbPRO Services. You may control certain aspects of how You interact with the ThumbPRO Services by changing your settings in the ThumbPRO Platform and/or the social networking site through which You access the ThumbPRO Services. Your Account is for your individual, personal and non-commercial use only, and you may not authorize others to use Your Account for any purpose. In creating Your Account, you certify that all information you provide is complete and accurate. You agree to update your information when required or requested, and you further agree not to use another person’s account without permission. You are responsible for maintaining the confidentiality of, and restricting access to, Your Account and password, and You agree to accept sole responsibility for all activities that occur under Your Account or password.

You agree to notify us immediately at info@baseballthumbguard.com of any breach of security or unauthorized use of Your Account or any violation of this Agreement by other of which you are aware. Although we will not be liable for your losses caused by any unauthorized use of Your Account, whether with or without your knowledge.

You may be liable for our losses or the losses of our third-party licensors, content providers, merchants, advertisers, sponsors, and service providers due to such unauthorized use. Without limiting anything in this Agreement, we reserve the right, in our sole discretion, to restrict, suspend, or terminate Your Account and/or your access to any or all parts of the ThumbPRO Services at any time, for any reason, including without limitation Your violation of these Terms, with or without prior notice, and without liability to us, including in the event we stop offering any aspect of the ThumbPRO Services.

SECTION 5 | CONTENT

User acknowledge and agrees that the ThumbPRO Services are designed for a purpose serving a particular community and interest, and that any Content submitted must conform to such purpose.

Submission of Content.
Some areas of the ThumbPRO Services may allow You and other users to post content, comments, questions, review and other information (Your “Content”). You acknowledge and agree that your communications with other users or members via chats, conferences, bulletin boards, blogs, posts, reviews and any other publicly accessible avenues of communication through the ThumbPRO Services are public and not private communications. Therefore, we strongly encourage you to use caution before disclosing any personal information about yourself in your public communications. You are solely responsible for the User Content that you upload, publish, display, link to or otherwise make available on or through the ThumbPRO Services. You understand and agree that all Content publicly posted or privately transmitted through the ThumbPRO Services is the sole responsibility of the person from whom such content originated and that we will not be liable for any errors or omissions in any such Content. You further understand and agree that we cannot guarantee the identity of other users with whom you may interact in the course of using the ThumbPRO Services or the data that any such user may provide about themselves.

We reserve the right to refuse to transmit or post, and to disclose, block or remove any Content or materials, including but not limited to, Your Content, in whole or in part, that we in our discretion deem to be in violation of this Agreement, our policies and procedures, or otherwise harmful to persons using the ThumbPRO Services. In addition, we may also take reasonable steps, including but not limited to, limiting or filtering the number of emails, chat messages or posts sent or received by a user. We are not obligated in any way to use Your Content.

Your Representations and Warranties about Your Content.
By posting Content on or through on or though the ThumbPRO Services, you represent and warrant that:

None of us, our customers, licensees or business partners shall be required to make any payments with respect to Your Content, including but not limited to, payments to you, third parties, or your licensors or any persons who contributed to or appear in Your Content;
You have full right, power and authority to post Your Content and have secured all third-party consents, licenses and permissions necessary to post your Content and grant to us the rights and licenses described below; and
Your Content(a) is not defamatory; (b) does not infringe upon, misappropriate, or violate the rights of any third party, including but not limited to, any intellectual property rights, rights of publicity or any other privacy or proprietary rights; and (c) does not violate and law, rule, regulation or ordinance.

Rights in Content.
By uploading, making available or submitting Content, you grant us and our business partners and affiliates a royal-free, perpetual, irrevocable, world-wide, assignable and transferrable right and license to quote, re-post, use, copy, reproduce, modify, create derivative works of, incorporate into other works, distribute, transmit, broadcast, communicate, publicly display, publicly perform and otherwise exploit your content in any form or media now known or hereafter created, anywhere, and without any notice or compensation to you of any kind. In addition, you grant each user of the ThumbPRO Services a non-exclusive license to use, modify, reproduce, distribute, prepare derivative works of, display, and perform any Content as allowed by the functionality of the ThumbPRO Services.

You hereby grant us, and other users of the ThumbPRO Services all consents, rights and clearances to enable us to use Your Content for these purposes. Without limiting the foregoing, we may:

Host your Content on our servers and those of our third-party service providers that we have engaged to host the ThumbPRO Services and display Your Content, in whole or in part, alone or in compilation with content provided by third parties, to other users of the ThumbPRO Services;
Re-encodeYourContent as needed to be compatible with different mobile phones which may degrade the sound quality of Content;
Edit Your Content to ensure that it complies with our policies and guidelines; and
Use any trademarks, service marks or trade names incorporated into your Content and the likeness of any individual whose performances or image is contained in your Content.

SECTION 6 | PAID SERVICES

a)Affiliates.

ThumbPROServices allow Users to become a ThumbPRO affiliate in order to receive discounted products and affiliate sales. Affiliate opportunities are offered in an annual duration, with options that may automatically renew. All affiliate discounts are subject to change without ThumbPRO may elect to occasionally run promotion prices as incentives or limited time opportunities for qualifying purchases made during the promotional time period. Due to the time sensitive and promotional nature of these events, We are unable to offer price protection or retroactive discounts or refunds for previous purchases in the event of a price reduction or promotional offering. Payment will be charged to Your Account (or mobile applications provider account, as applicable) at confirmation of purchase. You have the option to cancel your affiliate Account at any time. Accounts may be managed by the user and may be terminated by going to the user's Account Settings at any time. We also may issue you store credit from time to time.

SECTION 7 | YOUR RESPONSIBILITIES

You alone are responsible for your conduct (including website entries) and omissions while using ThumbPRO Services. To keep ThumbPRO Services accessible for all users, you agree to respect the right of other users of the community, including as described in these Terms. To protect our users and contributors from Prohibited Activity, as described below, ThumbPRO reserves the right to take appropriate actions, including by restricting the frequency of communications a user may send in a certain time period, or reviewing, editing, or removing user content or User Account which in our sole and absolute judgment violates any of these Terms. To protect the integrity of the ThumbPRO Services, we reserve the right to block users from certain IP addresses from accessing the ThumbPRO Services for any violation of these Terms.

“Prohibited Activities” means each and every prohibited action set forth below. To keep ThumbPRO Services safe and accessible, in connection with ThumbPRO Services, you warrant and covenant that you shall not use the ThumbPRO Services:

To impersonate another person or entity, claim a false identity when creating an Account, or use an Account of a third-party;
For any purpose other than to use and access the ThumbPRO Services in accordance with these
Terms;
To bypass, disable or otherwise interfere with security related features of the ThumbPRO Services or features that prevent, limit, or restrict the access to the ThumbPRO Services and/or the use or re-production of any Content or any other material on the ThumbPRO Platform;
To delete or modify notices regarding copyright or other proprietary rights on the ThumbPRO Platform or Site;
for any illegal purpose in any jurisdiction;
Collect, disseminate, or otherwise use personal information about Users or any third-parties without their consent or ThumbPRO’s consent, or in violation of any applicable law;
Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code in any of the software, firmware, or hardware embodied in the ThumbPRO Services;
Interfere with or damage the operation of the ThumbPRO Services or any User’s enjoyment of them by any means, including, but not limited to, uploading or otherwise disseminating viruses, spyware, worms or other malicious code.
to interfere with ThumbPRO’s mission, purpose, and/or business;
Publish sensitive personal data on the ThumbPRO Website and/or Platform, including on your own Account. Sensitive personal data is defined under U.S. Law, and includes health information related to a physical person; or
Sell, license, distribute, copy, record, modify, publicly perform or display, transmit, publish or republish, including republication on another website, edit, adapt, create derivative works from any aspect of the ThumbPRO Services not otherwise authorized by these Terms.
You understand that ThumbPRO does not endorsements, approvals or recommendations your actions on our Platform or Site, nor your Content, if any, not including social media, reviews, and the like.

ThumbPRO reserves the right to suspend, discontinue or modify any aspect of the ThumbPRO Services at any time, including the right to discontinue fully or partially the display of any Content or linked or embedded content, and to prevent access to the ThumbPRO Website or any Content from specific territories (geo-blocking).

SECTION 8 | THIRD PARTY SERVICES

Third Party Services.
Third party services may be used when you:

Purchase, install or update the ThumbPRO Platform, including but not limited to digital storefronts such as the Apple iOS App Store, Google Play Store, Amazon App Store; and
use the ThumbPRO Services, including but not limited to checkout, delivery, social media connectivity and the like.

Third Party Terms and Conditions.
These third-party services are subject to respective third party terms and conditions, as applicable. Please review their third-party terms and conditions carefully as they constitute an agreement between you and the applicable third party service provider. We are not liable for the activities of any such third parties.

Third-Party Trademarks and Logos.
The ThumbPRO Services may display trademarks, service marks, logos, and other proprietary information ("Third-Party Trademarks") belonging to third parties, including but not limited to MiLB, MLB, and NCAA. These Third-Party Trademarks are used solely to identify the products and services of their respective owners and to inform users about the use of our products by athletes in these leagues.

No Affiliation or Endorsement: The display of Third-Party Trademarks does not imply any affiliation with, endorsement by, or sponsorship from the trademark owners. ThumbPRO is an independent provider of thumb guards and is not affiliated with these organizations. Nothing contained on the ThumbPRO Services should be construed as granting, by implication or otherwise, any license or right to use any Third-Party Trademark without the written permission of the trademark owner.

Third Party Reliance.
The ThumbPRO Services may contain links (including via advertisements) to third party websites or other third party content or services. Those links are provided for convenience only and may not remain current or be maintained.

You understand that:

Links to third party content or services are not endorsements, approvals or recommendations by Us of the third parties, or of any content or services provided by them;
Your use of any third-party content or services may be subject to separate terms and conditions; and
When you provide data to third parties you are providing it in accordance with their privacy policy

(if any) and our Privacy Policy does not apply in relation to that data.

You are responsible for ensuring that your installation and use of the ThumbPRO Services does not cause you to exceed any data usage quotas or other limitations that may apply to your internet service or other services acquired from third parties.

You must comply with the terms of service of the relevant digital storefront where you obtained Our Services, including but not limited to the Apple iOS App Store, the Google Play Store and the Amazon App Store. You must comply with any applicable third-party terms of agreement when using Our Services, including Shopify’s terms of use.

Although ThumbPRO seeks to protect the integrity of third-party websites, ThumbPRO is not responsible and cannot be held liable for the content and activities of these sites. You therefore visit/access these sites entirely at your own risk.

Please note that these other websites may send their own cookies to users, collect data or solicit personal information, and you are therefore advised to check the terms of use and/or privacy policies on those websites prior to using them.

SECTION 9 | TERM AND TERMINATION

Term.
These Terms are effective beginning when you accept the Terms or first access or use the ThumbPRO Services, and end when terminated as described below.

You may terminate your account with and these Terms at any time by sending an email to info@baseballthumbguard.com or use any termination functionality that may be offered through the ThumbPRO Services.

ThumbPRO may, at its sole discretion, terminate these Terms and/or suspend or terminate your access to the ThumbPRO Services, at any time for any reason or no reason, with or without notice, to the fullest extent permitted by applicable law.

Termination.
We may terminate your use of or access to the ThumbPRO Services, including without limitation by terminating Your Account, for any violation of these Terms. We may also change, suspend, or discontinue any aspect of the ThumbPRO Services at any time, with or without notice to You.

Upon termination of these Terms for any reason, all of your Content may be made inaccessible via the ThumbPRO Services although copies of your Content may remain stored on back-up storage media maintained by or for Us.

You grant Us a royalty-free license to retain such back-up copies of Your Content on storage media maintained by or for Us, with no obligation to transfer such copies to you. If you stop using the ThumbPRO Services but keep Your Content on or available through the ThumbPRO Services, then these Terms shall continue to apply in full force and effect for so long as any of Your Content is available on or through the ThumbPRO Services.

The following Sections, and any other term reasonably understood to be intended to survive termination, shall survive any termination of these Terms: 1, 3, 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21.

SECTION 10 | COMMUNICATIONS FROM THUMBPRO AND OTHERS

By accessing or using ThumbPRO Services, you consent to receive communications from other users and ThumbPRO through the ThumbPRO Services, or through any other means such as emails or push notifications. These communications may promote ThumbPRO, or businesses listed on ThumbPRO and may be initiated by ThumbPRO, businesses listed on ThumbPRO, or other users.

You can opt-out of certain communications, and we have provided the opt-out mechanisms in our Privacy Policy.

SECTION 11 | INTELLECTUAL PROPERTY AND OWNERSHIP

ThumbPRO Intellectual Property Rights.

All aspects and content of the ThumbPRO Services, including without limitation all trademarks, service marks, trade names, copyright, patents, trade secrets, videos, music, images, software, text, graphics, interactive features, logos, photographs, and other audio and/or visual material, except Your Content (collectively the “ThumbPRO Content”) is the sole and exclusive property of ThumbPRO, its licensors, and/or its suppliers. You may not copy, reproduce, distribute, publish, display, modify, create derivative works of, transmit or in any way use or exploit any ThumbPRO Content, in whole or in part, without ThumbPRO’s express prior written consent. Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the ThumbPRO Services and ThumbPRO Content and the Service are expressly retained by ThumbPRO.

Your Intellectual Property.

As between ThumbPRO and you, all copyright and other intellectual property rights not transferred herein and to your Content shall be owned by you.

SECTION 12 | COPYRIGHT COMPLAINTS; DMCA NOTIFICATION

We may, in our sole discretion, remove any Content that appears to infringe on the intellectual property rights of others or that is violation of this Agreement. It is our policy to respond to and investigate claims of copyright and other intellectual property infringement. We have a policy of terminating access to the ThumbPRO Services by users who are repeat infringers.

You may notify us of alleged copyright infringement in accordance with the Digital Millennium Copyright Act (the “DMCA”). We will respond expeditiously to notices of alleged infringement sent pursuant to the DMCA.

In order to notify us of a copyright infringement claim pursuant to the DMCA, you must provide:

a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Service are covered by a single notification, a representative list of such works;
a description of the material that is claimed to be infringing or to be the subject of infringing activity, and information reasonably sufficient to permit us to locate the material, including a URL address;
your address, telephone number and email address;
a statement by you 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 made under penalty of perjury by you that the information in the notification is accurate, and that you are authorized to act on behalf of the owner of the copyright involved.

The notice described above should be sent our designated copyright agent at info@baseballthumbguard.com . If you fail to comply with all of the requirements described above, your DMCA notice may not be valid.

If you believe that any Content or material that was removed (or to which access was disabled) is not infringing, or you have the right to post and use such Content or material from the copyright owner, the copyright owner’s agent, or pursuant to applicable law, you must send a counter notice containing the following information to our designated copyright agent at info@baseballthumbguard.com :

a physical or electronic signature of you or the person authorized to act on behalf of the owner of the exclusive right that is alleged to have been infringed;
identification of the copyrighted work that has been removed or blocked or to which access has been disabled;
the location at which the allegedly infringing material appeared before it was removed or disabled, including a URL address;
your address, telephone number and email address;
a statement by you that you have a good faith belief that the material removed or disabled was the result of a mistake or misidentification of the material; and
a statement made under penalty of perjury by you that the information in the notification is accurate, and that you are authorized to act on behalf of the owner of the copyright involved.

If a counter-notice is received by our designated copyright agent at the address above, we may send a notice to the complaining party that the removed material will be restored or we will cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed material may be replaced or access to it restored within ten (10) to fourteen (14) business days or more after receipt of the counter notice, at our discretion.

SECTION 13 | PRIVACY

For information about ThumbPRO’s collection and use of your information, please read our Privacy Policy, the terms of which are incorporated herein by reference.

SECTION 14 | FEEDBACK SUBMISSIONS AND CUSTOMER SUPPORT

We welcome your feedback. However, you agree that ThumbPRO is free to use any comments, information, ideas, concepts, reviewers, techniques, or any other material contained in any communication you may send to us, worldwide and in perpetuity without acknowledgment, compensation, or payment to you in any manner and for any purpose, including to improve ThumbPRO Services and create other products and services. If you need assistance or have questions about. Your Account, you may contact us at info@baseballthumbguard.com .

SECTION 15 | DISCLAIMERS OF WARRANTIES, REPRESENTATIONS, LIMITATIONS OF LIABILITY AND INDEMNIFICATION

You represent and warrant that you have read and understood these Terms, ThumbPRO’s Terms of Sale, and ThumbPRO’s Privacy Policy. If you use the ThumbPRO Platform and/or ThumbPRO’s Services outside of the United States of America, you represent that you are allowed to access and use the ThumbPRO Services, and/or submit Your Content in that country.

Assumption of Risk Clause

The Parties acknowledge and agree that baseball and softball may be considered an inherently dangerous sport, and the use of any baseball equipment, including ThumbPRO’s thumb guard (“Product”), carries inherent risks that cannot be completely eliminated regardless of the care taken to avoid injuries. User acknowledges and understands these risks, which include, but are not limited to, the risk of bodily injury. By purchasing and using the Product, the user acknowledges their understanding of these risks and assumes all responsibility for any injuries, damages, or losses that may occur as a result of using the Product. User agrees that ThumbPRO shall not be liable for any injuries, damages, claims, demands, actions, costs, or expenses of any kind arising out of or related to the use of the Product. This assumption of risk and release of liability is binding on the user, their heirs, executors, administrators, and assigns.

Limitation of Liability

To the fullest extent permitted by applicable law, ThumbPRO, its officers, directors, employees, or agents shall not be liable for any indirect, incidental, special, consequential, or punitive damages, including without limitation, loss of profits, data, use of Product, goodwill, or other intangible losses, resulting from (i) your access to or use of or inability to access or use the ThumbPRO services; (ii) any conduct or content of any third party on the ThumbPRO service; (iii) any content obtained from the ThumbPRO service; and (iv) unauthorized access, use, or alteration of your transmissions or content, whether based on warranty, contract, tort (including negligence), or any other legal theory, whether or not we have been informed of the possibility of such damage, and even if a remedy set forth herein is found to have failed of its essential purpose.

YOU AGREE THAT YOUR USE OF THE THUMBPRO SERVICES IS AT YOUR OWN RISK. THE THUMBPRO SERVICES AND/OR ANY OTHER FEATURES OR FUNCTIONALITIES ASSOCIATED WITH THE THUMBPRO SERVICES, INCLUDING WITHOUT LIMITATION ANY RELATED SOCIAL MEDIA PLATFORMS OR MOBILE APPLICATIONS, ARE PROVIDED “AS IS”. THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THUMBPRO DOES NOT MAKE ANY WARRANTY OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. THUMBPRO DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE THUMBPRO SERVICES WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, ERROR-FREE OR RELIABLE.

YOU AGREE THAT THUMBPRO IS NOT RESPONSIBLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE, OR ILLEGAL CONTENT OR CONDUCT OF ANY USER OR THIRD PARTY.

TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, IN NO EVENT SHALL THUMBPRO OR ANY OF ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, SUPPLIERS, OR AFFILIATES BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT THUMBPRO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), OR FOR DIRECT DAMAGES IN EXCESS OF FEES ACTUALLY PAID BY YOU TO THUMBPRO IN THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.

YOU SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THUMBPRO AND THUMBPRO’S SHAREHOLDERS, OFFICERS, DIRECTORS, LICENSEES, SUBLICENSEES, CUSTOMERS, OTHER USERS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY AND ALL LIABILITIES,

CLAIMS, DAMAGES, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS) AND OTHER LOSSES ARISING OUT OF OR IN ANY WAY RELATED TO YOUR BREACH OR ALLEGED BREACH OF ANY PROVISION CONTAINED IN THESE TERMS; YOUR UNAUTHORIZED USE/ACCESS OF THE THUMBPRO SERVICES (INCLUDING YOUR USE OF THUMBPRO CONTENT); AND YOUR CONTENT. THUMBPRO RESERVES THE RIGHT, AT OUR OWN EXPENSE, TO EMPLOY SEPARATE COUNSEL AND ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.

SECTION 16 | GOVERNING LAW AND JURISDICTION

This Agreement shall be exclusively interpreted, construed, and enforced under Massachusetts (U.S.A.) law without reference to its choice of law rules and, if any federal right violation is alleged, the laws of the United States of America shall govern. The United Nations Convention on Contracts for Sale of International Goods does not apply to these Terms. Subject to Section 18 (MANDATORY ARBITRATION, CLASS ACTION WAIVER, AND OPT-OUT), venue for any court action arising out of or relating to this Agreement shall be exclusively brought in the appropriate state court located in the City Concord and County of Middlesex or any federal court in the District of Middlesex, Massachusetts, and you and ThumbPRO irrevocably consent to the personal jurisdiction of such courts for any permitted court action on any obligation hereunder.

SECTION 17 | MANDATORY ARBITRATION, CLASS ACTION WAIVER, AND OPT-OUT

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

Application.
You and ThumbPRO agree that this Agreement affects interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 18 is intended to be interpreted broadly and governs any and all disputes between us including claims arising out of or relating to any aspect of the relationship between us and you, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this Agreement or any prior agreement (including claims related to advertising); and claims that may arise after the termination of this Agreement. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.

Initial Dispute Resolution.
Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action, you shall contact us at info@baseballthumbguard.com and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account). Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with ThumbPRO, and good faith negotiations shall be a condition precedent to either party initiating a lawsuit or arbitration.

Binding Arbitration.
If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided in Section 18(h) below) subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement (including this Agreement’s formation, performance, and breach), the parties’ relationship with each other, and/or your use of ThumbPRO Services shall be finally settled by binding arbitration administered by the JAMS Comprehensive Arbitration Rules & Procedures (“JAMS”). The JAMS rules shall govern payment of all arbitration fees...

ThumbPRO will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.

Arbitrator’s Powers.
The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement including any claim that all or any part of this Agreement is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.

Filing a Demand.
To start an arbitration, you must do the following: (i) Write a Demand for Arbitration (“Demand”) that (a) briefly explains the dispute, (b) lists your and ThumbPRO’s names and addresses, (c) specify the amount of money in dispute, if applicable, (d) identify the requested location for a hearing if an in-person hearing is requested, and (e) state what you want in the dispute; (ii) send one copy of the Demand to JAMS, along with a copy of these Terms and the filing fee required by JAMS; and (iii) send one copy of the Demand for Arbitration to us at info@baseballthumbguard.com, Attn: Legal Department; Re: Arbitration Demand.

Acknowledgment.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. You further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location, telephonic arbitration, or similar method. For individuals residing outside the United States, arbitration shall be initiated in Middlesex County, Massachusetts, United States, and you and ThumbPRO agree to submit to the personal jurisdiction of any federal or state court in Middlesex County, Concord, Massachusetts, United States, in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

Class Action Waiver.
The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND THUMBPRO 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. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

Exception for Litigation of Intellectual Property and Small Claims Court Claims.
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in small claims court in Middlesex County, Massachusetts for disputes or claims within the scope of that court’s jurisdiction.

30-Day Right to Opt-Out.
You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to info@baseballthumbguard.com with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within of thirty (30) days of your first use of the Service or within 30 days of changes to this section being announced on the Site or Platform, whichever is later. Otherwise, you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, ThumbPRO also shall not be bound by them.

Changes to this Section.
ThumbPRO shall provide notice of any changes to this section by posting on the Services, Website, or Platform. Amendments shall become effective thirty (30) days after they are posted on the ThumbPRO Services, Platform, and/or Site or immediately if sent to you by email or text. Changes to this section shall otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled Mandatory Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section in existence after you began using the ThumbPRO Services, ThumbPRO Platform, and/or ThumbPRO Property.

Survival.
This Mandatory Arbitration and Class Action Waiver section shall survive any termination of your use of the ThumbPRO Services, ThumbPRO Platform, and/or ThumbPRO Product.

SECTION 18 | SEVERABILITY.

If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall remain in full force and effect as if such invalid, illegal, or unenforceable provision had never been included.

SECTION 19 | RELATIONSHIP OF THE PARTIES.

Nothing in this Agreement establishes any relationship of partnership, joint venture, employment, franchise or agency between you and ThumbPRO. You do not have the power to bind ThumbPRO or incur obligations on ThumbPRO’s behalf without ThumbPRO’s prior written consent. ThumbPRO does not have the power to bind you or incur obligations on your behalf without your prior written consent (including consent given through the Site or ThumbPRO Platform).

SECTION 20 | MISCELLANEOUS.

This Agreement, including its Terms: (i) are drafted and shall be interpreted in the English language; (ii) shall be construed fairly with no inference drawn against the drafting party; (iii) use, though strictly for convenience, various titles and headings which shall not affect interpretation of this Agreement; (iv) set forth the parties’ entire agreement and understandings relating to the subject matter herein and merges and supersedes all of the parties’ prior agreements, writings, commitments, discussions and understandings; (v) and any right or obligation set forth in these Terms can only be amended, modified, or waived in a writing signed by ThumbPRO; and (vii) shall bind (and inure to the benefit of) the parties, and the parties’ respective heirs, approved assigns, successors-in-interest, and legal representatives (subject to any and all assignment restrictions set forth herein). When used in this Agreement, “including” shall be deemed to mean “including, but not limited to,” regardless of whether such term is initially capitalized and notwithstanding any conflicting provision of these Terms.

Notice To Amateur Athletes.
You, if are an eligible or currently an amateur athlete, are responsible for ensuring that your use of or participation in the activities of the Site does not affect your eligibility as an amateur athlete in any capacity, including tax, university and any and all requisite disclosures. Please check with your amateur athletic association for the rules that apply to you.

THUMBPRO SHALL NOT BE HELD RESPONSIBLE OR LIABLE FOR YOUR USE OF THE WEBSITE RESULTING IN YOUR INELIGIBILITY AS AN AMATEUR ATHLETE.

Product Orders.
When you place an order, you shall receive an acknowledgement email confirming receipt of your order; this email will only be an acknowledgement and shall not constitute acceptance of your order. A contract between us shall not be formed until we send you confirmation by email that the goods that you ordered have been dispatched to you. Only those goods listed in the confirmation email sent at the time of dispatch shall be included in the contract formed.

By placing an order for product/s on the Site, you agree to the Terms of Sale which terms are made a part of these Terms of Service and incorporated by this reference. We attempt to ensure that product information on this Site is complete, accurate and current. Despite our efforts, information on this Site may occasionally be inaccurate, incomplete or out of date. Except as prohibited by applicable Massachusetts law, we make no representation as to the completeness, accuracy or currency of any information on the Site. For example, products included on the Site may be unavailable, may have different attributes than those listed, or may actually carry a different price than that stated on the Site.

In addition, we may make changes in information about descriptions, specifications, prices and availability without notice. Products may not be available for delivery to your country of residence. Products ordered through the Site are subject to acceptance by ThumbPRO at its sole discretion. ThumbPRO may refuse to accept or may cancel any product order, whether or not confirmed, for any or no reason, in its sole discretion, and without liability to, You, the purchaser or any third party. If you and/or a purchaser’s credit card has been charged for an order that is subsequently cancelled by ThumbPRO, ThumbPRO shall issue a credit to your credit card account.

Risk Of Loss.
Risk of loss and title for all product/s purchased from ThumbPRO shall pass to you upon ThumbPRO’s delivery of such products to its carrier.

Contact Us.
The Site and Platform are operated by Thumb-PER, INC., 34 Walden Street, Suite
#335, Concord, MA 01742.
The contact person at this site is: Digital Marketing Representative at: info@baseballthumbguard.com.

You can reach us by telephone at 857.957.7228 (ask for Website Department)

YOU EXPRESSLY REPRESENT THAT YOU HAVE: (A) READ AND UNDERSTOOD THIS AGREEMENT AND AGREE TO ALL OF ITS TERMS AND CONDITIONS; (B) INDEPENDENTLY EVALUATED THE DESIRABILITY OF ENTERING INTO THIS AGREEMENT AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH HEREIN; AND (C) BEEN AFFORDED THE OPPORTUNITY TO SEEK THE ADVICE OF LEGAL COUNSEL WITH REGARDS TO YOUR RIGHTS AND OBLIGATIONS SET FORTH IN THIS AGREEMENT AND HAVE EITHER SOUGHT OR REFUSED SUCH COUNSEL.

THUMB-PER / THUMBPRO TERMS OF SALE

PLEASE READ THESE TERMS OF SALE (“TERMS OF SALE”, “SALE TERMS”, OR “TERMS”), PROVIDED BY THUMB-PER, INC., A MASSACHUSETTS CORPORATION (“THUMB-PER,” “THUMBPRO,” “US,” OR “WE” OR “OUR”) CAREFULLY BEFORE ORDERING PRODUCTS ONLINE FROM THE THUMBPRO WEBSITE. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THESE TERMS OF SALE, OUR PRIVACY POLICY, OR ANY OTHER TERMS THAT YOU HAVE ENTERED INTO WITH US (COLLECTIVELY, THE “SALE AGREEMENT”), THEN YOU DO NOT HAVE OUR PERMISSION TO USE AND/OR ACCESS THUMBPRO SERVICES (AS DEFINED BELOW). BY ACCESSING OR USING THUMBPRO SERVICES, AN INDIVIDUAL (“USER”, “YOU”, CUSTOMER” OR “YOUR”) AGREE TO BE BOUND BY THE TERMS OF SALE DESCRIBED HEREIN AND INCLUDE THE ADDITIONAL TERMS INCORPORATED BY REFERENCE HEREIN, INCLUDING PRIVACY POLICY AND TERMS OF SERVICE, WHICH FORM A LEGALLY BINDING CONTRACT WITH YOU AND THUMBPRO. AS FURTHER DESCRIBED BELOW, THE TERMS INCLUDE PROVISIONS REGARDING FUTURE CHANGES TO THE AGREEMENT, LIMITATIONS OF LIABILITY, PRIVACY, WAIVER OF CLASS ACTIONS, AND RESOLUTION OF DISPUTES BY ARBITRATION INSTEAD OF IN COURT.

BY PLACING AN ORDER FOR PRODUCTS, YOU AGREE TO BE BOUND BY AND ACCEPT THESE TERMS OF SALE, AS FOLLOWS:

APPLICABILITY

These terms of sale (“Terms of Sale”) apply to purchases made on the ThumbPRO’s website (including, without limitation, www.baseballthumbguard.com, known herein as, “Website”, or “Site”), digital experience, social media platform, mobile app, or one of ThumbPRO’s other products or services, which make up ThumbPRO’s Platform (the “Platform”). These Terms of Sale create a legally binding agreement between you and ThumbPRO. (regarding orders placed for products available via the Platform (the “Products”)

ThumbPRO may revise these Terms of Sale without notice by posting revised Terms of Sale on its Platform. The Terms of Sale posted on the Platform at the time you place your order on the Platform shall govern that purchase.

Please read these Terms carefully and check that the details of your order are complete and accurate before submitting your order. ThumbPRO’s Custom Product Terms (below), Gift Card Terms (below), Terms of Service, Cookie Policy, and Privacy Policy are incorporated herein by this reference.

With regard to your purchases on the Platform, we may communicate electronically by sending email or posting electronically. You agree that all agreements, notices, disclosures, and other communications that are provided electronically satisfy any legal requirement that such communications be in writing. Please note that these Terms of Sale give you specific rights, and you may have other rights, which vary from jurisdiction to jurisdiction.

Information contained in ThumbPRO’s advertising, brochures or other written materials, on ThumbPRO’s Sites or given to you, is for informational purposes only and shall not be misconstrued as an offer by ThumbPROto supply any Products.

PLACING AN ORDER

Please note that we deliver the Products globally.

To place an order on the Platform, you must:

Be of legal age in your jurisdiction and a consumer– not a reseller;
Provide your name and address, phone number, email address, payment details and other required information;
Provide a delivery address in the United States or Internationally (Note – ThumbPRO may be unable to deliver to certain addresses); and,
Be the owner or authorized user of a valid debit/credit card or other method of payment accepted by ThumbPRO.
You may place an order by clicking on the "Add to cart" button and proceeding to the checkout page.
If you choose to create a ThumbPRO account, you will also create a personal user identification (your username) and password. Keep your password protected at all times and do not disclose it to anyone else as you are personally responsible for each purchase made using your user identification and password. All information collected shall be subject to ThumbPRO’s Privacy Policy.
The Platform is intended solely for ThumbPRO to sell the Products direct to end consumers, and therefore purchase of Products for resale is strictly prohibited. “Purchase for resale” shall mean the purchase of Products by someone who resells, or intends to resell, the Products to others (consumers, businesses or any third party). If ThumbPRO believes you are involved in purchase for resale, ThumbPRO reserves the right to take any action against you, including, without limitation, to restrict sales to you, cancel your orders, and/or suspend or close your account.

ORDER PROCESSING AND CONTRACT FORMATION

You agree that by placing an order, you are offering to purchase a Product and subject to the following Terms of Sale. ThumbPRO retains the right in its sole discretion to refuse any request made by you. All orders must be accepted by ThumbPRO.

If your order is accepted, then we may inform you by email, and we will confirm the identity of the party with whom you have contracted. This will usually be ThumbPRO or may in some cases be a third party via a pay provider. Where a contract is made with a third party, ThumbPRO is not acting as either an agent or principal and the contract is made between yourself and that third party and will be subject to the terms that the third party supplies to you.

When placing an order you undertake that all details you provide to us are true and accurate, that you are an authorized user of the credit or debit card used to place your order, and that there are sufficient funds to cover the cost of the goods. Acceptance of your order and the formation of the contract between ThumbPRO and you containing this Sale Agreement shall not take place until we have delivered the Products to the shipping carrier – you may receive an email confirming the Products have been shipped.

Fulfillment of all orders on the Platform are subject to availability and confirmation of the order price.

Cost of prices advertised and shipping both domestic (within the U.S.) and international (outside of the U.S) are subject to change. We explicitly reserve the right not to accept your order for any reason.

We also reserve the right to cancel any Sale Agreement by written notice (email or text shall suffice) to you in the following situations, without being liable for any damage or costs other than repayment of any amount received from you in relation to the Sale Agreement that we cancelled:

the Product you ordered is not available / in stock;
your billing information is not correct or not verifiable;
your order is flagged by our security systems as an unusual order or an order susceptible to fraud;
your bank transfer payment is not received within twelve (12) calendar days after receipt of your order;
we believe you are under the legal age in your country;
we believe that you are a reseller;
there was an error in the price displayed on the Platform;
we could not deliver to the address provided by you;
due to an Event Outside Our Control (see below); or
in the event of misspelling, pricing or other errors or mistakes in the Platform information.

If you would like to cancel an order, please contact ThumbPRO customer service by submitting a Contact Us form. ThumbPRO cannot guarantee cancellation requests for all orders. In the event ThumbPRO is unable to cancel your order, you may be able to return an item for a full refund. For more information about returning items, please refer to ThumbPRO’s Return Policy. For cancellation of custom orders, please refer to the “Custom Products Terms” section below.

GENERAL SHIPPING INFORMATION

ThumbPRO ships products globally, providing customers with a range of shipping options through our platform.

Shipping Responsibility
Once an order leaves the facility, your order is the responsibility of the shipping carrier. ThumbPRO is not responsible for lost or stolen packages. However, under certain circumstances, and upon request, we may file a loss claim with our shipping insurance. Should a loss claim be requested, you will be required to sign a loss verification affidavit via a link we provide you. If the insurance company rules in your favor, we will issue a resend of the product or a full refund, depending on your preference.

Delivery Estimates
We do not guarantee the arrival date of any order. No carrier, including but not limited to FedEx 2nd Day and Overnight services, offers a guaranteed delivery date. Therefore, we are not responsible for deliveries considered "late." All delivery dates provided by carriers are estimates and may be affected by factors such as weather and other unforeseen events.

International Shipping
We offer international shipping via DHL. All shipping prices, duties, and related fees are included in the price at checkout, providing a seamless shopping experience for our international customers.

Shipping Prices
ThumbPRO reserves the right to change our shipping prices at any time without prior notice. This flexibility allows us to adapt to changing market conditions and shipping costs. The price charged for a Product will be the price in effect at the time the order is placed and will be set out in the order receipt and order confirmation emails. ThumbPRO may change prices at any time without notice. Price increases will only apply to orders placed after such changes.

Weekend and Holiday Shipping
Our operations do not include shipping on weekends. Orders for expedited shipping (e.g., FedEx) placed after 4:00 pm EST on Fridays, over the weekend, or on federal and weekday holidays will incur additional delivery days accounting for the non-operational days. This policy ensures transparency in our shipping process and sets realistic expectations for delivery times.

CHARGES AND TAXES

ThumbPRO charges sales tax where required by law. If you are shipping to states where sales tax is charged, the appropriate charges may be added to your merchandise total and displayed in your order. Prices for the Products may or may not include charges for shipping and handling.

Separate charges for tax and shipping may be itemized in your shopping cart and on shipping confirmation email.

PRODUCT AVAILABILITY AND DELIVERY, CIRCUMSTANCES BEYOND REASONABLE CONTROL

ThumbPRO does not guarantee the availability of any Product on the Platform. ThumbPRO reserves the right, without liability or earlier notice, to change, discontinue or stop making or selling any Product.

We may provide you with the information on the latest expected delivery date which should not exceed thirty (30) days unless you specifically agree on a later date.

In case you unreasonably defer delivery or delay the receipt of delivery after we have notified you that we have tried to deliver the ordered items to you, or if you have provided us with an incorrect delivery address which results in an unsuccessful delivery, the delivery package may be returned to us.

Delivery options are defined in checkout and may change. Delivery based on the option selected is not guaranteed. ThumbPRO is not responsible for any reimbursement for payment of the express delivery price if the service requested was not delivered on time. If the items remain undelivered and are returned to us undelivered, we shall consider that you have exercised your right to cancel the contract and when we receive the returned delivery package, we will refund you in accordance with our return policy less the reasonable additional costs incurred by ThumbPRO.

Customers desiring to return or refuse delivery will be best serviced by receiving the delivery, initiating a return request by following the return through our contact page here.

ThumbPRO shall not be held responsible for delay or failure to perform if the delay or failure is caused by any circumstances beyond its reasonable control including but not limited to acts of war or terror, strikes, national or local states of emergency, pandemic, epidemic, failure of transportation facilities, power or utility outages, earthquakes, or other natural disasters (“Events Outside Our Control”).

COMPATIBILITY, PRODUCT INFORMATION.

When placing your order please ensure that the Products you purchased are compatible for the intended use. Please use the information provided on the Platform as reference when checking compatibility. In the event of a difference between the Platform content and any other ThumbPRO (or non-ThumbPRO) website (or any other source of information) the compatibility of Products as shown on the Platform at the time of purchase will be seen as taking precedence. We encourage you to examine the delivery package and received items within fourteen (14) days after they are delivered to you and check their condition and that the content of the delivery package is complete.

PAYMENT.

Payment shall be made by a credit, debit card, or other method of payment approved by ThumbPRO. Approved method of payments (including approved credit and debit card types) are listed in the Website. You have to supply your payment details when you place your order. If you use a credit card, your credit card may not be accepted if: (i) the name on the credit card does not match the billing name given or (ii) the billing address given does not match the bank records. Except for Custom Products, you will be charged on shipment of the ordered products. We will not supply the items to you until your card issuer has authorized the use of your card for payment of the ordered Products. We recommend that you save and print your order confirmation for your potential future use.

TITLE TO PRODUCTS.

With the exception of Products picked up at stores carrying the ThumbPRO Product, if any, the title and risk of loss for Products purchased from ThumbPRO passes to you upon our delivery to the carrier. Title and risk of loss for Products purchased online and picked up at stores carrying the Product, if any, shall pass to you upon your authorized receipt of those Products. Title to Product(s) shall not effectively transfer until full payment has been actually received by us.

RETURN AND REFUND, OTHER OPTIONS

If you have bought Products for your own private use as a consumer and want to exercise your right to cancel the Contract and return the items you have purchased, return the product within thirty (30) calendar days after the date of receipt of the delivery, submit a return request on www.baseballthumbguard.com, and correctly follow the return instructions on the return provided to you, either by email or via the Site, by ThumbPRO.

If the Products you have received do not correspond to the ones you have ordered, or if your delivery is incomplete or damaged in transportation, please contact ThumbPRO immediately by submitting a Contact Us form.
If you placed your order as a guest, you may initiate your return by emailing us at: info@baseballthumbguard.com. You will need to provide us your order number and email address used to place the order.
Once we have received the return and ThumbPRO has verified it meets our return guidelines, your refund may be processed back to your original form of payment within 7-10 business days, but no later than thirty (30) days.

You must include all accessories, user manuals and any free gifts that came in the same package.
Where a Product has been purchased as a part of a bundle of multiple Products, all multiple Products within that bundle must be returned.
Please treat the Products with care and return them in the condition that they were delivered to you.
Please use, if possible, the original delivery package or pack the Products securely and print out and place the return label on the outside of the packing used for shipping.
Replacement or refund can only be processed once we have received all the Products to be returned.
If you return Products: (1) that you are not entitled to return, (2) that are not in their original condition, (3) that are without proper or missing packaging, (4) with items missing from the return delivery, (5) without following our return instructions, or (6) without exercising reasonable care when taking care of and returning such Products, we reserve the right either to reject your return and decline to refund or to deduct from those payments to be refunded to you reasonable repair or other similar direct costs that we have incurred, subject to applicable law.
If your return has been accepted, we may refund you the price you have actually paid for the items less
any applicable shipping costs (as per the above) by crediting the payment method used to place the order thirty (30) calendar days after the date of receipt of the delivery.

Please note that ThumbPRO shall only process returns and refunds for items bought on the Website.

LIMITED WARRANTY

ThumbPRO provides a limited warranty on the Products. Limited warranties are as follows:

Most ThumbPROProducts carry a 14-day money back guarantee from the date of purchase by the original purchaser from the ThumbPRO Site and a free no-hassle size exchange.

We are unable to send replacements for these reasons including, but not limited to: you have outgrown your guard and/or it no longer fits; your guard has been heavily worn and it is old; the guard is dirty; the guard was lost.

To submit a warranty request, please click here.

PERSONAL DATA.
The ThumbPRO Privacy Policy and additional provisions in Privacy Policy, Terms of Service and Terms of Sale govern the use of your personal data. Purchasing goods via the Websites requires that you accept the ThumbPRO Privacy Policy and the processing of personal data as described in the ThumbPRO Privacy Policy.

OUR LIABILITY

These Terms of Sale set out the full extent of our obligations and liabilities in respect of the sale of our Products.

Except for the express limited warranty for the Product purchased (if any) and as prohibited by applicable Massachusetts law, ThumbPRO disclaims any implied warranty, including the warranty of merchantability or the warranty of fitness for a particular purpose.

ThumbPRO further disclaims any implied or express warranty of, and assumes no responsibility for, defects in workmanship caused by third parties who are not acting on ThumbPRO’s behalf or modifications made to the Products by anyone other than ThumbPRO or those authorized by ThumbPRO, except as prohibited by applicable Massachusetts law.

ThumbPRO further disclaims all liability and damages of any kind related to use of Products in any manner which is not consistent with the Product's intended use, except as prohibited by applicable Massachusetts law.

These Terms of Sale give the consumer specific legal rights; a consumer may have other rights depending upon where they live. Some jurisdictions do not allow the exclusion or limitation of special, incidental, or consequential damages, or limitations on how long a warranty lasts, so the above exclusion and limitations may not apply to everyone.

Binding Arbitration AGREEMENT; CLASS ACTION WAIVER (U.S. RESIDENTS ONLY)

TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CONTROVERSY OR CLAIM RELATING IN ANY WAY TO YOUR TRANSACTION AND/OR PURCHASE OF PRODUCT(S) FROM THE WEBSITE(S), INCLUDING ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO YOUR USE OF SUCH PRODUCT, WILL BE SETTLED BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION AND CONDUCTED BY A SINGLE ARBITRATOR APPOINTED BY THE AMERICAN ARBITRATION ASSOCIATION, IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND ITS SUPPLEMENTARY PROCEDURES FOR CONSUMER-RELATED DISPUTES.

You may learn more about the American Arbitration Association and its rules for arbitration by visiting www.adr.org or by calling 800-778-7879. Since this warranty concerns a transaction in interstate or international commerce, the Federal Arbitration Act will apply.

To the greatest extent permitted by applicable law, the filing fees to begin and carry out arbitration will be shared between you and ThumbPRO, but in no event will your fees ever exceed the amount allowable by the American Arbitration Association, at which point ThumbPRO will cover all additional administrative fees and expenses. ThumbPRO waives its right to recover attorneys’ fees in connection with any arbitration under these Terms of Sale. If you are the prevailing party in an arbitration to which the Supplementary Procedures for Consumer-Related Disputes applies, then you are entitled to recover attorneys’ fees as the arbitrator may determine.
The dispute will be governed by the laws of the State of Massachusetts, USA. The place of arbitration will be Middlesex County, Massachusetts, or your county of residence (if in the United States). The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party's actual damages, except as may be required by statute. The arbitrator will not award consequential damages, and any award will be limited to monetary damages and will include no equitable relief, injunction, or direction to any party other than the direction to pay a monetary amount. Judgment on the award rendered by the arbitrator will be binding and final, except for any right of appeal provided by the Federal Arbitration Act and may be entered in any court having jurisdiction. Except as may be required by law, neither you nor ThumbPRO nor an arbitrator may disclose the existence, content, or results of any arbitration under this warranty without the prior written consent of you and ThumbPRO.

EXCEPTIONS TO BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, ANY DISPUTE, WHETHER IN ARBITRATION, IN COURT, OR OTHERWISE, WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. THUMBPRO AND YOU AGREE THAT NO PARTY WILL HAVE THE RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED AS A CLASS ACTION, A PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR PROCEEDING SHALL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER ARBITRATION OR PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ANY SUCH ARBITRATION OR PROCEEDING.

EXCEPTIONS TO BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.

IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER, THEN: (1) you must notify ThumbPRO in writing within sixty (60) days of the date that you purchased the Product; (2) your written notification must be mailed to ThumbPRO at 34

Walden Street, Suite #335, Concord, MA 01742, Attn: Legal Department; and (3) your written notification must include (a) your name, (b) your address, (c) the date you purchased the product, and (d) a clear statement that you wish to opt out of the binding arbitration agreement and class action waiver. In addition, you may pursue an individual claim in small claims court in your county of residence or in Middlesex County, Massachusetts. In such case the provisions of the section titled “Binding Arbitration Agreement; Class Action Waiver” will not apply, but the rules and limitations of the small claims court shall apply.

GENERAL

Exclusion.
If any provision or provisions of these Terms of Sale shall be held to be invalid, illegal, or unenforceable, that provision shall be enforced to the fullest extent permitted by applicable law, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.

Governing Law.
These Terms of Sale shall be governed and construed in accordance with laws of the
State of Massachusetts, USA.

ADDENDUM A [CUSTOM PRODUCTS TERMS]

THE TERMS OF SALE ABOVE ARE INCORPORATED HEREIN BY THIS REFERENCE.

CUSTOM PRODUCT ORDERS CAN'T BE CANCELLED OR RETURNED.

Each custom product is made specifically to your specifications and as a result, your orders can't be modified, cancelled or returned.
On the order review page, you will have a chance to review your design choices and make changes before you purchase. This is very important because a customized product cannot be returned, and your purchase is non-refundable. PLEASE MAKE SURE ALL INFORMATION IS CORRECT before you proceed to purchase.
If you want to make a correction or just change things up, you can do so before you purchase. While in the order review page, just click any edit button (or pencil icon) and you'll be taken back to the customize and personalize screens to make your desired changes. Once you are satisfied, remember to review your changes carefully on the REVIEW AND BUY screen because a custom product cannot be
returned.

RETURNS

Your custom product is made to order just for you, and we cannot accept returns. The exception is if the product was made incorrectly. Please contact customer service by submitting a Contact Us form to learn more information regarding a product.

CUSTOM PRODUCT PERSONALIZATION GUIDELINES.

We reserve the right to refuse any requested personalization for any reason, including, without limitation, any of the following reason:

Your custom text or design contains any profanity, or other offensive language, slogans or acronyms we deem, in our sole discretion, to be inappropriate, derogatory, or profane;
We believe that your custom text or design includes unauthorized uses of third-party trademarks or other intellectual property, athlete images, corporate or team logos;
We believe your custom text or design includes unauthorized uses of professional names of professional athletes and/or celebrities;
Webelieve your custom text or design includes unauthorized uses of Major League Baseball, National
Football League, or National Basketball Association names or logos; or,
We believe your custom text or design includes unauthorized uses of NCAA licensed marks, unless provided by ThumbPRO.
In addition, on any NCAA-related custom product, the below exclusions also apply (per the NCAA):

o No last names

o No references to current or former players/coaches

o No school/team names

o No use of the word "coach"

o No player's numbers

o No school slogans

By ordering you state your understanding and agreement that the personalization text entered is accurate and does not contain any restricted text, and that you own all rights, titles, and interest in any images or logos uploaded. Custom Products will go through an extensive quality control process. If any custom order has restricted language or names, the order will not be processed.

ADDENDUM B

[GIFT CARD TERMS]

THE TERMS OF SALE ABOVE ARE INCORPORATED HEREIN BY THIS REFERENCE. ThumbPRO Gift Cards are issued and managed by ThumbPRO and may only be applied to purchases on the ThumbPRO Website.

Please read these Gift Card Terms carefully before using a Gift Card.

By using a Gift Card, you, and your designated recipient, if any, agree to these Gift Card Terms and any applicable law. Do not use a Gift Card if you do not agree with these Gift Card Terms. ThumbPRO reserves the right to alter or modify these Gift Card Terms at any time. You agree to periodically review the Gift Card Terms and agree that your continued use of any Gift Card constitutes your consent to the latest modified Gift Card Terms.

GIFT CARD BALANCE.

For purposes of these Gift Card Terms, and subject to the provisions herein, a “Gift Card” shall mean an electronic payment device that, when issued, applies a specified amount of funds for use towards purchases on the ThumbPRO Website. Your “ThumbPRO Balance” is the initial amount of your Gift Card less any purchases made using such Gift Card.
Purchases are deducted from your ThumbPRO Balance. If a purchase exceeds your ThumbPRO Balance, the remaining amount must be paid with another payment method.

GuestAccount.
If you do not have a registered ThumbPRO account, your ThumbPRO Balance displays the total remaining balance of all Gift Cards associated with the purchaser’s email or the designated recipient’s email address. To view your ThumbPRO Balance, follow the instructions provided in the receipt for the Gift Card.

LIMITATIONS.
Gift Cards cannot be (i) redeemed for cash (except as required by law), (ii) resold, (iii) used for payment other than on the ThumbPRO Site, (iv) used for shipment outside of the United States, unless authorized by ThumbPRO, (v) used for unauthorized advertising, marketing, sweepstakes, promotional, or commercial purposes, including to facilitate the resale or shipment of goods from the ThumbPRO Sites, or (vi) transferred for value to any third-party.

RISK OF LOSS.
ThumbPRO is not responsible for any lost or stolen Gift Cards. The risk of loss for Gift Cards passes to the purchaser upon the electronic transmission of the Gift Card to the purchaser or designated recipient, whichever is applicable. Gift Cards may only be obtained from ThumbPRO, and you are responsible for safeguarding your Gift Card and ThumbPRO Balance from unauthorized use. ThumbPRO is not responsible if any Gift Card is used without your permission. ThumbPRO assumes no liability for any unlawful conduct or fraud by any third party associated with any Gift Card.

USE IN VIOLATION OF THESE GIFT CARD TERMS.
By using a Gift Card, you agree to comply with these terms and conditions, and not to use a Gift Card in any manner that is misleading, deceptive, unfair, or otherwise harmful to ThumbPRO, its affiliates, or its customers. ThumbPRO reserves the right, without notice to you, to void Gift Cards (including your ThumbPRO Balance) without refund, suspend or terminate customer accounts, suspect or terminate the ability to use the ThumbPRO Sites, cancel or limit orders, and bill alternative forms of payment if ThumbPRO suspects that a Gift Card is obtained, used, or applied to a ThumbPRO Website (or your ThumbPRO Balance is applied to a purchase) fraudulently, unlawfully, or otherwise in violation of these terms and conditions.

LIMITATION OF LIABILITY.
TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS PROHIBITED BY APPLICABLE MASSACHUSETTS LAW, THUMBPRO

MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO GIFT CARDS OR YOUR THUMBPRO BALANCE, INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TO THE FULL EXTENT PERMITTED BY LAW, EXCEPT AS PROHIBITED BY APPLICABLE MASSACHUSETTS LAW, IN THE EVENT A GIFT CARD IS NOT FUNCTIONAL, YOUR SOLE REMEDY, AND THUMBPRO’S SOLE LIABILITY, WILL BE THE REIMBURSEMENT OF THAT GIFT CARD FOR THE SAME AMOUNT FOR WHICH YOU PURCHASED IT.

MISCELLANEOUS.

These Gift Card Terms constitute the entire agreement between you and ThumbPRO with respect to your use of the Gift Cards and supersedes all prior agreements or communications. If any provision of these Gift Card Terms is found to be invalid by any court, the invalidity of such provision shall not affect the validity of the remaining provisions of these Gift Card Terms. You agree that any notice, agreement, disclosure, or other communication that ThumbPRO sends you electronically will satisfy any legal communication requirements, including that such communications be in writing.

ThumbPRO’s failure to insist upon or enforce strict performance of any provision of these terms and conditions shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any of these terms and conditions. ThumbPRO may assign its rights and duties under this Agreement to any party at any time without notice to you.
TheThumbPRO Terms of Service also apply with respect to your use of the ThumbPRO Sites.

ThumbPRO reserves the right to require additional verification of your identity, Gift Card or account ownership, or provision of an additional payment method before you can apply a Gift Card to your account or your ThumbPRO Balance to a purchase.

BALANCE EXPIRATION.
To the extent prohibited or limited by applicable law, the portion of your
ThumbPRO Balance made up of Gift Card(s) does not expire.

Terms of service

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