THIS DOCUMENT (TOGETHER WITH ANY DOCUMENTS REFERRED TO HEREIN) SETS OUT THE TERMS AND CONDITIONS ("TERMS AND CONDITIONS") UNDER WHICH 11 HEALTH AND TECHNOLOGIES INC. ("WE"/"US"/"OUR"), A DELAWARE CORPORATION HAVING A PLACE OF BUSINESS AT 2492 WALNUT AVENUE, SUITE 104, TUSTIN CA 92780, SELLS, SUPPLIES AND LICENSES ITS GOODS, INCLUDING ITS "SMART" BAGS, BASEPLATES AND HUBS AND ITS PROPRIETARY SOFTWARE APPLICATIONS (COLLECTIVELY, "PRODUCTS"), AND PROVIDES CERTAIN RELATED SERVICES (COLLECTIVELY, "SERVICES").
THESE TERMS AND CONDITIONS APPLY TO YOUR USE OF OUR PRODUCTS AND SERVICES REGARDLESS OF WHETHER THEY WERE (I) PURCHASED BY YOU, ON YOUR BEHALF OR AS A RESULT OF A PRESCRIPTION (COLLECTIVELY, "PURCHASED"), VIA OUR WEBSITE ("WEBSITE") OR OTHERWISE, OR WERE OTHERWISE ACQUIRED OR OBTAINED BY OR FOR YOU ON PRESCRIPTION OR VIA A HEALTHCARE PROVIDER OR OTHER THIRD PARTY, OR (II) PAID FOR, IN WHOLE OR IN PART, BY YOU OR BY A THIRD PARTY INSURER OR GOVERNMENT AGENCY OR PROGRAM, SUCH AS MEDICARE OR MEDICAID, PROVIDED THEY WERE PURCHASED, ACQUIRED OR OTHERWISE OBTAINED, AND/OR YOU ARE USING THEM, WITHIN THE UNITED STATES OR CANADA (THE "TERRITORY").
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY PURCHASING, ACQUIRING OR OBTAINING, VIA OUR WEBSITE OR OTHERWISE, AND/OR BY USING, ANY OF OUR PRODUCTS OR SERVICES, WITHIN THE TERRITORY, INCLUDING BY DOWNLOADING OUR PROPRIETARY SOFTWARE APPLICATION, KNOWN AS ALFRED APP (THE "ALFRED APP"), ON TO YOUR PHONE, COMPUTER OR OTHER ELECTRONIC DEVICE, YOU AGREE TO BE LEGALLY BOUND BY THESE TERMS AND CONDITIONS. YOU WILL BE UNABLE TO PROCEED WITH THE DOWNLOAD OF THE ALFRED APP FROM OUR WEBSITE OR FROM ANY THIRD PARTY ONLINE STORE THROUGH WHICH IT MAY BE AVAILABLE, OR TO USE THOSE OF OUR PRODUCTS THAT REQUIRE THE ALFRED APP, IF YOU HAVE NOT PREVIOUSLY ACCEPTED OR DO NOT ACCEPT THESE TERMS AND CONDITIONS.
1. Territorial Scope and Limitations
These Terms and Conditions only apply to Products and Services supplied and provided to and used by individuals within the Territory, whether as the result of a healthcare provider prescription or recommendation, or otherwise. We will have no liability of any kind under these Terms and Conditions for any use of our Products or Services Purchased, acquired or otherwise obtained outside of the Territory. Further, we do not cover roaming charges outside of the Territory. Therefore, our Products will only function outside of the Territory if connected via Bluetooth to your personal device, which has an operational internet connection outside of the Territory. Our services will not be available to you outside the Territory.
2. Eligibility to Purchase Products and Services
To lawfully accept these Terms and Conditions, and to be eligible to Purchase, use or receive the Products or Services, including the Alfred App, without parental consent, you must: (i) be 22 years of age or over; (ii) be legally capable of entering into a binding contract; and (iii) provide full details of an address in the United States where you officially reside for the delivery or performance of the Products or Services. If you are under 22, you may only Purchase, receive or use the Products or Services, including the Alfred App, or use the Website, in conjunction with, and under the supervision of, a parent or guardian. If you do not qualify, you must not Purchase, use or receive the Products or Services, including the Alfred App.
3. Registration and Conditions of Use
When registering on the Website in order to Purchase a Product or Service, or downloading the Alfred App, you must choose a username and password and you hereby undertake and/or represent the following:
You will make every effort to keep your password safe and will not disclose your password to anyone;
You will only access and use the Alfred App and/or the Website using your own username and password;
You will change your password immediately upon discovering that it has been compromised;
You will neither transfer nor sell your username or password to anyone, nor permit, either directly or indirectly, anyone other than you to use them; provided, however, that you may allow your caregiver to access any of your personal information stored by or on behalf of us, using his or her own credentials;
You will be responsible for all actions taken under your chosen username and password;
You will notify us immediately of any changes to the information provided on registration or to your personal information; and
All details you provide for the purposes of downloading the Alfred App and/or registering on the Website and Purchasing, receiving or using a Product or Service are true, accurate, current and complete in all respects.
Product use instructions, restrictions and product warnings may be set out in user manuals or other materials delivered to you with the Products. You agree to use the Products only as instructed or otherwise indicated in those manuals or other materials. You acknowledge and agree that we will not be responsible for any injuries, damages, losses or liabilities resulting from a failure to use the Products as instructed or otherwise indicated in those manuals.
We reserve the right to terminate these Terms and Conditions or to suspend or terminate your access to any Service, the Alfred App and/or the Website immediately and without notice to you if:
You or your healthcare payer, including any insurer and Medicare or Medicade, fail to make any payment to us when due;
You breach any of the terms set out in these Terms and Conditions;
You are impersonating any other person or entity;
When requested by us to do so, you fail to provide us within a reasonable time with sufficient information to enable us to determine the accuracy and validity of any information supplied by you, or your identity; or
We suspect you have engaged, or are about to engage, or have in anyway been involved, in fraudulent or illegal activity on the Website.
4. Order Process and Formation of a Contract
All Product or Service orders are subject to acceptance and availability. If any Products or Services ordered are not available, you will be notified by email and you will have the option either to wait until the item is available or to cancel your order. It is your responsibility to provide us with a valid email address so that we can contact you if necessary.
Any order placed by you, or by an entity or individual ordering for you or on your behalf, constitutes an offer to Purchase the Products or Services from us. All such offers received by us are subject to acceptance by us and we reserve the right to refuse any such order at any time prior to acceptance, without providing an explanation.
You, or any entity or individual ordering for you or on your behalf, will be responsible for ensuring the accuracy of the details provided during the order process and we will not accept an order unless all requested details have been entered correctly.
You agree that if we contact you, or any entity or individual ordering for you or on your behalf, to acknowledge receipt of an order, such communication will not amount to our acceptance of the offer to Purchase the Products or Services.
A contract between you and us (the "Contract") incorporating these Terms and Conditions will subsist upon the first to occur of any of the following: (i) we have debited your payment card or billed your insurer, including Medicare or Medicaid; (ii) we have dispatched the ordered Product(s) or commenced performance of the ordered Service(s); (iii) you or any entity or individual acting for you or on your behalf has downloaded one of our proprietary software applications, including the Alfred App; or (iv) you have obtained from a healthcare provider and/or are using one of our Products or Services within the Territory.
With regard to any Purchases made through our Website, we will send you or any entity or individual that or who placed the order for you or on your behalf, an email to confirm this (a "Confirmation Notice").
The Confirmation Notice will amount to an acceptance of the order to Purchase the Products from us and will confirm the formation of a Contract.
The Contract will relate only to the Products or Services stated in the Confirmation Notice. We will not be obliged to supply any other Products or provide any Services that may have been part of your order until we have sent you a separate Confirmation Notice relating to it.
You, or the entity or individual acting for you or on your behalf, must check that the details contained in the Confirmation Notice are correct and you should print out and keep a copy of it.
You will be subject to any policies or other conditions that apply to our Products and Services, which are in force at the time that you order the Products and Services and are set out or referenced in our Confirmation Notice.
5. Product-Related Terms and Conditions
Alfred App License Terms and Restrictions: Subject to these Terms and Conditions, we hereby grant you a nonexclusive, non-transferable, non-assignable, non-sublicenseable, limited, personal license to use the Alfred App, in binary, executable form only, solely for your personal use, for its intended purpose and in accordance with any other written guidelines or instructions as we may provide. No license is granted with respect to source code of any kind. The Alfred App and its structure, organization and source code constitute valuable trade secrets of ours. Accordingly, you will not, without our prior written consent: (i) make any copies of the Alfred App, except for one copy of the Software solely for backup or archival purposes; (ii) cause or permit any reverse engineering, decompilation, modification, translation or disassembly of the Alfred App or otherwise attempt to derive the source code for the Alfred App; (iii) sell, loan, lease, rent, sublicense, distribute, disclose, publish, assign, commercially share (including time share), or otherwise transfer any rights in the Alfred App; (iv) use the Alfred App for providing third party hosting, third party application integration, application service provider type services, or for any similar services; (v) otherwise use or copy the Alfred App except as expressly allowed herein; (vi) do and permit to be done, anything which will adversely affect our right, title or interest in or to the Alfred App. You may only operate, deploy, install, run, access, or use the Alfred App for your personal use, for its intended purpose, in accordance with any other written guidelines or instructions as we may provide and in conjunction with our Products.
The Products will be delivered to you at the address you provided during the order process which may be an address other than the billing address, but please note that extra documentation may be needed to comply with those orders. If so, we will inform you accordingly via the email address you supplied on registration or another email address that we agree to use to communicate with you.
We employ professional carriers. Nevertheless, you must examine the Products on arrival. If you are asked for your signature on delivery, you must examine the Products before signing for it. All Products must be signed for by an adult aged 18 years or over on delivery.
Any dates quoted for delivering the Products are approximate only. If no date is specified then delivery will take place within 30 days or a reasonable time from the date of the Confirmation Notice, unless there are exceptional circumstances. We will not be liable for any delay in delivering the Products, however caused.
The Products will be delivered to you at your own cost and expense and at your own risk from the time of their release by us to a reputable carrier. However, ownership of the Products will only pass to you when we receive full payment of all sums due in respect of them including the cost of delivery. Products may be delivered to you in instalments.
Cancelling Your Contract and Returns
You may cancel your order for the Products at any time prior to receiving a Confirmation Notice from us so long as you contact us in writing. You can send us a cancellation notice by sending an email to firstname.lastname@example.org. Your cancellation notice must quote your name, address, the name or a description of the Products and your order reference number.
Cancellation after receiving a Confirmation Notice is at our discretion. You can request cancellation after receiving a Confirmation Notice by sending an email to email@example.com. Your request must quote your name, address, the name or a description of the Products and your order reference number. We will notify of whether your request to cancel your order has been accepted.
If we accept your cancellation notice, we will contact you and provide details of where you must return the Products to and any other relevant instructions. You must then immediately return the Products to us at your own cost and risk. We reserve the right, at our option, to collect the Products from you. If we wish to collect the Products we will notify you of when they will be collected by us. We will charge you for the cost of collecting the Products and will deduct this from any sum owed by us to you.
The Products must be returned to us in the same condition in which you received them and in particular any plastic seal around the products and the 11 Health boxes in which the products are packed must be unopened. You must return the Products with their original packaging and invoice. You have a legal obligation to take reasonable care of the Products whilst they are in your possession. If you fail to comply with this obligation, we may have a right of action against you for compensation.
We will offer you a refund of the full Purchase price, including the cost of delivery for sending the Products to you, and the cost incurred by you in returning the Products to us if they are defective at the time of delivery and you inform us in writing of the defect within thirty (30) days of delivery, provided that you return the Products to us and we are reasonably satisfied that they have not suffered damage after delivery or have not been misused or used other than in accordance with any applicable guidelines or instructions. Alternatively, at your option, instead of a refund (and subject to compliance with the foregoing provisions) we will replace the Products with the same or similar goods (subject to stock availability).
In order to claim a refund or replacement item please send a fault notice to us at: firstname.lastname@example.org. Your fault notice must quote your name, address, the name or a description of the goods, a brief description of the problem, fault or damage and your order reference number.
Upon receiving your fault notice, we will contact you and provide details of where you must return the Products to and any other relevant instructions. You must then immediately return the Products to us. We reserve the right, at our option, to collect the Products from you. If we wish to collect the Products we will notify you of when they will be collected by us.
If we discover an error before sending you a Confirmation Notice we will, at our discretion, either reject your order and notify you of such rejection or inform you as soon as possible and give you the option of cancelling your order or reconfirming it at the correct price and/or description. If we give you the option of cancelling your order or reconfirming it at the correct price and/or description but either cannot contact you or do not receive your response within 14 days of sending you notification (whether or not you receive it), we will reject your order.
If we discover an error after sending you a Confirmation Notice we may, at our discretion and without incurring any liability to you, cancel the Contract provided that the error is, in our reasonable opinion, obvious and unmistakable and could have reasonably been recognized by you. We will notify you if we cancel the Contract. If your order is cancelled or rejected and you have already paid for the Products, you will receive a full refund.
We will examine any returned Products and will notify you about your refund or replacement item via email within a reasonable period of time. Refunds will be made by crediting the payment card or electronic payment account you used to Purchase the Products.
We reserve the right to refuse to issue a refund or replacement and to recover the cost of returning or collecting the Products in the event that the Products are found to have suffered damage after delivery or have been misused or used other than in accordance with any applicable guidelines or instructions or if the goods have not been returned with their original packaging.
6. Service-Related Terms and Conditions
General. We provide a number of different services intended to benefit patients who manage chronic conditions whilst connected to medical bags, including our Patient Care Program, our Telehealth Program and our Nurse Program. The provision of these and any other services provided by us or on our behalf are subject to these Terms and Conditions. Full details regarding our Services are available on our Website.
Patient Care Program
Our Patient Care Program, which is designed to provide individualised engagement and support for ostomy patients, employs qualified health coaches involved in this Patient Care Program (“Patient Coaches”) who are, typically, actual patients who have been trained on the Products, tested our technology and provided real time feedback on how to improve our platform.
By enrolling in the Patient Care Program through downloading the Alfred App, you agree that the Patient Coaches may contact you and/or your designated caregiver(s) by phone (including mobile phone if that is the number you provided), text message (sms), videocall, e-mail, hard copy letter, or other means of communication but only for the purposes referred to above.
You also give us your permission to interact with:
your hospital medical team or other healthcare provider;
Patient Coaches you interact with as part of the Patient Care Program;
nurses and/or doctors (whether ours or provided by a third party) you interact with or who are involved in the Patient Care Program; and
an IV infusion service (whether ours or provided by a third party) if you are prescribed fluids by a doctor.
You also give us your permission to interact with any product supplier in connection with the support you receive through the Patient Care Program.
You understand that you can unsubscribe at any time if you no longer wish to receive communication from us related to your participation in the Patient Care Program. You can do so by sending us an email at email@example.com.
By downloading the Alfred App you are automatically enrolled in our Telehealth Program, which utilizes data collected via our Products and the Alfred App, and which enables us to establish an alert that is triggered if certain medical protocol levels are breached. The Service will route the alert through our Telehealth Program in accordance with our protocols to determine if a doctor needs to decide, based on the data from the Products, whether or not to prescribe fluids to you.
If this service is available in your area and if the doctor prescribes intra-venous fluids, we will notify either:
our home care company, or
a third-party IV infusion service to which we will pass your details and whose responsibility it will be to come to your premises and deliver the infusion in your home. You hereby consent to the sharing of your details as aforesaid.
General Service Disclaimer
We will use commercially reasonable efforts to deliver the Services in a professional and timely manner consistent with industry standards. HOWEVER, WE CANNOT GUARANTEE POSITIVE RESULTS FOR ANY OF OUR SERVICES. ADDITIONALLY, IF A SERVICE IS PROVIDED BY AN INDEPENDENT SERVICE PROVIDER, WE ARE NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF SUCH PROVIDER.
7. Price and Payment Terms
We reserve the right to charge for our Products and Services or to provide them free of charge. In cases in which a charge will be imposed, such charges will be based on prevailing rates based on the specific Service, the payer category and other related factors, as determined by us and industry practices. Unless otherwise stated, those prices apply only to Purchases for delivery within the Territory and exclude sales taxes (if any) and delivery costs. Any applicable delivery costs will be added to the total amount due from you at their current rate. Details of our delivery charges can be located on our Website.
We reserve the right, by giving notice to you at any time before delivery or performance of our obligations to you, to increase the price of the Products or Services to reflect any increase in the cost to us due to any factor beyond our control (such as, without limitation, any foreign exchange fluctuation, significant increase in the costs of labor, materials or other costs of manufacture). In the unlikely event of this occurring, you will be entitled to cancel the order at any time before delivery of the Products or performance of the Services.
Payment for Purchases from the Website can be made by most major prepay, credit or debit card or through an electronic payment account as explained on the order form. By placing an order on the Website, you, or any entity individual acting for you or on your behalf, consent to payment being charged to your (or their) prepay/debit/credit card account or electronic payment account as provided on the order form. Payment will be debited and cleared from your (or their) account before the delivery of Products or the performance of Services.
When you pay for your order by card, we, or our third party vendor or service provider, as the case may be, carry out certain checks which include obtaining authorization from your card issuer to ensure you have adequate funds and for security reasons. This may involve validating your name, address and other personal information supplied by you during the order process against appropriate third-party databases including the card issuer, registered credit reference agencies and fraud prevention agencies. You hereby consent to all such checks.
By accepting these Term and Conditions, you:
Represent that: (i) all the details you provide to us for the purpose of purchasing and receiving the Products or Services are correct and that the payment card you are using is your own and that there are sufficient funds to cover the cost of the Products ordered; (ii) any and all Products or Services ordered by you, or by an entity or individual acting for you or on your behalf, are for your own private or domestic use only and not for resale.
Authorize us to transmit the payment and delivery information provided by you during the order process (included any updated information) for the purpose of obtaining authorization from your card issuer to ensure you have adequate funds, to authenticate your identity, to validate your payment card and for other security reasons, such as fraud prevention. We will contact you should any problems occur with the authorization of your card.
We will take all reasonable care, in so far as it is in our power to do so, to keep the details of your order and payment secure, but in the absence of gross negligence on our part, we cannot be held liable for any loss you may suffer if a third party procures unauthorized access to any data you provide when accessing or ordering from our Website.
8. Ownership and Intellectual Property
We (or our licensors) are the sole and exclusive owners of all intellectual property rights in and to the Products. The Products are protected by copyright (including design copyrights), trademarks, patent, database and other applicable intellectual property rights and similar proprietary rights which include, (without limitation), all rights in materials, works, techniques, computer programs, source codes, data, technical information, trading business brand names, goodwill, service marks, utility models, semi-conductor topography rights, the style or presentation of the goods or services, creations, inventions or improvements upon or additions to an invention, confidential information, know-how, moral rights and any similar rights in any country (whether registered or unregistered and including applications for and the right to apply for them in any part of the world), and you acknowledge and agree the intellectual property rights in and to the products remain with us (or our licensors). No license is granted to you to use any of our trademarks or those of our affiliated companies.
9. Limited Warranty; Warranty Disclaimer; Limitation of Liability
THE ALFRED APP SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN NO EVENT WILL WE BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE ALFRED APP SOFTWARE.
FOR ALL OTHER PRODUCTS, WE WARRANT THAT WE POSSESS GOOD AND MARKETABLE TITLE TO THE PRODUCTS, AND THAT THE PRODUCTS MEET THE SPECIFICATION PROVIDED BY US TO YOU IN WRITING (THE "LIMITED WARRANTY"). WE WILL NOT BE LIABLE TO YOU UNDER THE WARRANTY IF THE DEFECT WAS CAUSED BY MISUSE, ABUSE, VANDALISM, IMPROPER APPLICATION, IMPROPER PACKAGING, ALTERATION, MODIFICATION, NEGLIGENCE OR IMPROPER USE; FIRE, FLOOD, STORAGE, HANDLING OR ANY OTHER CAUSE BEYOND OUR CONTROL, EXCEPT FOR THE LIMITED WARRANTY SET OUT ABOVE, WE HEREBY DISCLAIM ANY AND ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. WITH REGARD TO OUR SERVICES, WE HEREBY DISCLAIM ANY AND ALL WARRANTIES SUBJECT ONLY TO OUR OBLIGATIONS AS SET FORTH IN SECTION 6.3.4 ABOVE.
WITH THE EXCEPTION OF OUR GROSS NEGLIGENCE, FRAUD OR WILFUL MISCONDUCT, OR AS OTHERWISE PROHIBITED BY LAW: (I) IN NO EVENT WILL WE BE LIABLE, WITH RESPECT TO OUR PRODUCTS OR SERVICES, OR ANY BODILY HARM, INJURY, DAMAGES OR LOSSES OF ANY KIND ARISING THEREFROM, INCLUDING DEATH, FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE OR SIMILAR TYPES OF LOSS OR DAMAGE OF ANY KIND, OR FOR ANY LOST OF ANTICIPATED PROFITS OR SAVINGS, COST OF COVER FOR REPLACEMENT OF ALTERNATIVE PRODUCTS OR DAMAGE TO REPUTATION OR GOODWILL, ARISING FROM OR RELATED TO THE PRODUCTS OR THE SERVICES PROVIDED BY US OR ON OUR BEHALF, OR FROM A BREACH OF THESE TERMS AND CONDITIONS; (II) YOUR SOLE REMEDY FOR OUR BREACH OF ANY PRODUCT WARRANTY OR THESE TERMS AND CONDITIONS WILL BE THE REPAIR, REPLACEMENT OR REFUND BY US; AND (III) IN NO EVENT WILL OUR TOTAL LIABILITY, UNDER ANY THEORY OF LIABILITY, EXCEED THE PURCHASE PRICE PAID FOR THE RELATED PRODUCTS OR SERVICES. YOU AND WE EXPRESSLY ACKNOWLEDGE THAT THE PRECEDING LIMITATIONS ON LIABILITY ARE A FAIR COMPROMISE AND WAIVE ANY RIGHT TO LATER CHALLENGE THEM AS UNREASONABLE, UNCONSCIONABLE OR OTHERWISE.
11. General and Miscellaneous Terms
Notices and Communications. All notices given by you to us must be given by using firstname.lastname@example.org. Notices will be deemed received and properly served immediately when posted on our Website, 24 hours after an email is sent, or three (3) days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email that such email was sent to the specified email address of the addressee. You agree that email and other electronic communications may be used as a means of communication and acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. We may, at our discretion, contact you by email or provide you with information by posting notices on our Website.
Force Majeure. We will have no liability for delays or failures in delivery or performance of our obligations to you resulting from any act, events, omissions, failures or accidents that are outside of our control ("Force Majeure"), which, without limitation, include: (i) strikes, lock-outs or other industrial action; (ii) shortages of labor, fuel, power, raw materials; (iii) late, defective performance or non-performance by suppliers; (iv) private or public telecommunication, computer network failures or breakdown of equipment; (v) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war; (vi) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster or extreme weather conditions; (vii) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; (viii) acts, decrees, legislation, regulations or restrictions of any government; and (ix) other causes, beyond our reasonable control. Our performance will be deemed to be suspended for the period that the event of Force Majeure continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavors to minimize any delay caused by Force Majeure or to find a solution by which our obligations may be performed despite the Force Majeure event. We will promptly notify you of any Force Majeure event giving details of it and (where possible) the extent and likely duration of any delay. Where the period of non-performance or delay in relation to any event of Force Majeure exceeds 30 days from the date of notice to you of the event of Force Majeure, either you or we may, by written notice to the other, terminate these Terms and Conditions with immediate effect upon service.
Governing Law and Jurisdiction. These Terms and Conditions will be construed and enforced exclusively in accordance with the laws of the State of California, without regard to or application of conflict of law principles. Further, with respect to any disputes regarding our Products, all rights and obligations and all actions related thereto will be governed exclusively by the laws of the State of California, as if these Terms and Conditions were a contract wholly entered into and wholly performed within the State of California. Subject to the arbitration provisions set out below, you hereby irrevocably agree to submit to the exclusive jurisdiction of the state and federal courts of and for the State of California.
Disputes and Arbitration. Any dispute relating in any way to the Products or these Terms and Conditions will be submitted to confidential mediation or arbitration in the State of California, except that to the extent you have in any manner violated or threatened to violate our intellectual property rights or the intellectual property rights of our affiliates, partners or licensors, we may seek injunctive relief or other appropriate relief in any state or federal court in the State of California. Arbitration will be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award will be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Terms and Conditions will be joined to an arbitration involving any other party subject to these Terms and Conditions, whether through class arbitration proceedings or otherwise. Each party will be responsible for its own costs associated with the arbitration and the parties will share the costs of the arbitration equally. The arbitrator will not be permitted to assess damages contrary to these Terms and Conditions, including punitive damages or attorneys’ fees. The commencement of any civil action or other proceeding or the assertion of any setoff relating to these Terms and Conditions or any act or omission relating to its performance or subject matter must occur no later than three (3) years after the breach, act, omission, condition, or event in dispute, notwithstanding any longer statute of limitation or repose, or doctrine postponing or tolling a claim’s accrual for non-discovery, to the contrary; or else such proceeding will be barred. YOU AGREE THAT CLAIMS MAY ONLY BE BROUGHT IN AN INDIVIDUAL CAPACITY AND IN THE NAME OF AN INDIVIDUAL PERSON OR ENTITY. CLAIMS MUST PROCEED ON AN INDIVIDUAL AND NON-CLASS AND NON-REPRESENTATIVE BASIS, AND CLAIMS OF TWO (2) OR MORE PERSONS MAY NOT BE JOINED OR CONSOLIDATED IN THE SAME ARBITRATION UNLESS ARISING FROM THE SAME TRANSACTION. NEITHER YOU NOR WE MAY PURSUE CLAIMS IN ARBITRATION AS A CLASS ACTION OR PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION NOR MAY ANY SUCH CLAIMS BE PURSED ON EITHER OF OUR BEHALF IN ANY COURT, INCLUDING ASSIGNED CLAIMS. THE ARBITRATOR WILL BE AUTHORIZED TO AWARD RELIEF ONLY ON AN INDIVIDUAL AND NON-CLASS AND NON-REPRESENTATIVE BASIS. FURTHER, YOU AND WE EACH WAIVE TRIAL BY JURY IN ANY PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER ON ANY MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED TO THE PRODUCTS OR THESE TERMS AND CONDITIONS, THE RELATIONSHIP BETWEEN THE PARTIES, OR ANY INJURY OR DAMAGE CLAIM
Entire Agreement. These Terms and Conditions represent the entire agreement between us in relation to the subject matter of these Terms and Conditions and supersede any prior terms and conditions, understanding or arrangement between us, whether oral or in writing.
Severability. If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and Conditions and the remainder of the provision in question will not be affected
Waiver. If we fail, at any time during the term of these Terms and Conditions, to insist upon strict performance of any of your obligations under it, or if we fail to exercise any of the rights or remedies to which we are entitled under these Terms and Conditions, this will not constitute a waiver of those rights or remedies and will not relieve you from compliance with your obligations. A waiver by us of any default will not constitute a waiver of any subsequent default. No waiver by us of any terms or conditions set out in these Terms and Conditions will be effective unless it is expressly stated to be a waiver and is communicated to you in writing pursuant to the notice terms set forth herein.
Assignment. You may not transfer, assign, charge or otherwise dispose of these Terms and Conditions, or any of your rights or obligations arising hereunder, without our prior written consent. We may transfer, assign, charge, subcontract or otherwise dispose of these Terms and Conditions, or any of our rights or obligations arising hereunder, at any time during the term of these Terms and Conditions.
Amendment. We reserve the right to amend these Terms and Conditions at any time without personal notice to you. Any amended version of these Terms and Conditions will be posted on our Website and your continued use of any of the Products following such posting will be deemed to be your acceptance of that amendment. It is your responsibility to check our Website regularly to determine whether we have amended these Terms and Conditions.
Complaints. If you have a comment, concern or complaint about any Products or Services you have Purchased from us, please contact us via email at email@example.com.
These Terms and Conditions are effective as of: 19 December 2018