Terms of Sale Agreement
- You accept the Agreement through an oral or electronic statement;
- You attempt to or in any way use a Service or related Software;
- You pay for a Service or related Software;
- You open any package or start any program that says you are accepting the Agreement by doing so.
These terms of sale (“Terms”) apply to all orders accepted by Vigilint Biosensors, Inc. (“Vigilint”) for the sale of its personal fitness and electronic body monitoring products (“Products”), except in the case that you and Vigilint have executed a written agreement that supersedes these Terms. To the extent the Products contain or consist of software in any form (“Software”), such Software is licensed to you, not sold, and only in accordance with the section entitled “Software and Service License”, below. Terms such as “sell” and “purchase”, as used in these Terms, apply only to the extent the Products consist of items other than Software.
ORDERING FROM THE VIGILINT STORE
By placing an order through the Vigilint Store, you agree that: (i) any credit card information supplied by you is true and complete; and (ii) you will pay the applicable price listed, as well as any shipping and handling charges and applicable taxes. Products purchased by you are for personal or gift use and not for commercial use.
Vigilint can withdraw Services and Products from the Vigilint Store at any time and for any reason. Prices listed through the Vigilint Store are stated in U.S. dollars, and do not include any of the following; (1) shipping/handling charges or (2) federal, state and local taxes or (3) other fees or (4) other assessments that we are required by law to collect. Applicable taxes and charges will be communicated to you before you place an order and you are responsible for paying such charges and taxes to Vigilint. You agree to indemnify and hold Vigilint harmless from and against any liabilities, interest, penalties or fees assessed against Vigilint arising from your failure to pay any such taxes or fees. All Product prices are subject to change at any time.
Acceptance and Fulfillment
All orders are subject to acceptance by Vigilint. After you place an order, you will receive an email from Vigilint confirming that Vigilint has received it. Acceptance of your order will occur upon your receipt of another email from Vigilint containing a shipping confirmation, tracking number and carrier information. If an order is on back order, we’ll send you an email indicating that this is the case, followed by another email when the items in question are in stock containing a shipping confirmation, tracking number and carrier information. Vigilint reserves the right not to accept your order for any reason or no reason. Vigilint reserves the right to restrict multiple quantities of a Product being shipped to any one customer or postal address.
Purchases made through the Vigilint Store are intended for end users only, and are not authorized for resale.
Shipping and Delivery
Vigilint will pack the Products in accordance with its standard practices. When available you can choose the method of shipment and timing of delivery for Products ordered, and will be charged shipping and handling charges accordingly. Title to the Products (except to the extent that the Products consist of Software) and risk of loss will pass to you upon Vigilint’s delivery of the Products to the carrier. You acknowledge that all scheduled shipment dates are estimates only. Vigilint and its partners will make reasonable efforts to meet the scheduled shipment dates, but in no event will Vigilint be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery.
If you are unsatisfied with any Product purchased from the Vigilint Store for any reason, you will have thirty (30) days from the date of purchase to request a full refund. For full details on the return process, please see vigilint.store/shipping-returns.
LIMITED PRODUCT WARRANTY
Vigilint warrants to the original purchaser that your Product shall be free from defects in materials and workmanship under normal use for a period of one (1) year from the date of purchase, except that if you reside in the European Economic Area (EEA) and you purchased your Vigilint product in the EEA, the warranty period is two (2) years from the date of purchase. For full details on the Limited Product Warranty, please see vigilint.store/warranty.
You acknowledge that you have verified the compatibility of the Products you are purchasing with other required equipment (e.g., ensuring that your mobile device and/or operating system system is compatible with the Product). You are solely responsible for determining the compatibility of the Products with other equipment, and you accept that lack of compatibility is not a valid claim under the warranty provided with your Products and does not otherwise constitute a basis for receiving a refund after the 30 day refund policy identified above.
LIMITATIONS ON LIABILITY
IN NO EVENT WILL VIGILINT BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, USE, PROFITS, DATA, OR GOODWILL) OR COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS OR THE PURCHASE, SALE, USE, OPERATION OR PERFORMANCE OF THE PRODUCTS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT VIGILINT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. VIGILINT AND YOU HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL VIGILINT ’S LIABILITY TO YOU ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE ACTUAL AMOUNT PAID TO VIGILINT BY YOU FOR THE PRODUCT THAT GIVES RISE TO THE CLAIM. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
SOFTWARE AND SERVICES
Software and Services License
Until termination of this Agreement and as long as you meet any applicable payment obligations and comply with this Agreement (including Terms or Use), Vigilint grants to you a non-commercial, limited, nonexclusive, nontransferable right and license to use the Software and Services. You may not copy or modify the Software. You acknowledge that the Software contains trade secrets of Vigilint, and, in order to protect such trade secrets, you agree not to disassemble, decompile or reverse engineer the Software nor permit any third party to do so, except to the extent such restrictions are prohibited by law. Vigilint reserves all rights and licenses in and to the Software not expressly granted to you under this Agreement.
You agree not to use, nor permit any third party to use, the Services or content in a manner that violates any applicable law, regulation or this Agreement. You agree you will not:
- Provide access to or give any part of the Services to any third party.
- Reproduce, modify, copy, deconstruct, sell, trade or resell the Services.
- Make the Services available on any file-sharing or application hosting service.
Software and Services Usage Terms
You agree that any dispute between you and Vigilint arising out of or relating to these Terms, or any other Vigilint products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.
The Terms and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles.
Informal Dispute Resolution
We want to address your concerns without needing a formal legal case. Before filing a claim against Vigilint, you agree to try to resolve the Dispute informally by contacting firstname.lastname@example.org. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or Vigilint may bring a formal proceeding.
We Both Agree To Arbitrate
You and Vigilint agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
Opt-out of Agreement to Arbitrate
You can decline this agreement to arbitrate by contacting legal@Vigilint.com within 30 days of first accepting these Terms and stating that you (include your first and last name) decline this arbitration agreement.
The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, San Francisco, California, or any other location we agree to.
The AAA rules will govern payment of all arbitration fees. Vigilint will pay all arbitration fees for claims less than $75,000. Vigilint will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
Exceptions to Agreement to Arbitrate
Either you or Vigilint may assert claims, if they qualify, in small claims court in San Francisco (CA) or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Vigilint Products or services, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
No Class Actions
You may only resolve Disputes with Vigilint on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under our agreement.
Judicial Forum for Disputes
In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Vigilint agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of San Francisco County, California. Both you and Vigilint consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
Limitation on Claims
Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of Vigilint Products or services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
Representations, Warranties and Covenants.
You represent, warrant and covenant that (a) the membership and credit card information that you supply is true, correct and complete, (b) you will pay any charges that you incur in connection with the Service, including any applicable taxes, (c) you will update your membership and credit card information as required, (d) you will not allow anyone else to use your membership, (e) you will not transfer your membership or password to anyone else and (f) you will report to us any unauthorized or prohibited use of your membership.
Subject to the termination and refund rights above, you agree that Vigilint reserves the right to amend these Terms at any time and for any reason. The changes will be effective when posted through the Services or in our software application, on our website for the Services or when we notify you by other means. We may also change or discontinue the Services, in whole or in part. Your continued use of the Services indicates your agreement to the changes.
The parties disclaim application of the United Nations Convention on Contracts for the International Sale of Goods.
You may not assign or transfer these Terms, or any order accepted by Vigilint hereunder, in whole or in part, by operation of law or otherwise, without Vigilint’s express prior written consent. Any attempt to do so, without Vigilint’s consent, will be null and of no effect. Vigilint may freely assign these Terms.
Vigilint will not be responsible for any failure or delay in its performance under these Terms due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or acts of God.
The failure by Vigilint to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
These Terms constitute the complete and exclusive agreement between Vigilint and you regarding its subject matter and supersedes all prior or contemporaneous quotations, agreements, communications or understandings, whether written or oral, relating to its subject matter. Any waiver, modification or amendment of any provision of these Terms will be effective only if in writing and signed by duly authorized representatives of each party.
You will not export or re-export, directly or indirectly, the Products, or any technical information related thereto, or any direct products thereof, to any destination or person prohibited or restricted by the export control laws and regulations of the United States, without the prior authorization from the appropriate governmental authorities.
All notices required or permitted to be given under these Terms will be in writing and will be deemed given: (i) upon actual delivery, if made by personal service; (ii) three (3) days after mailing, if made by U.S. certified or registered mail; and (iii) one (1) business day after delivery to the courier or overnight delivery service, if made by courier or overnight delivery service. All notices will be addressed to such address as the party who is to receive the notice so designates by written notice to the other.