Last Updated: February 11, 2020. Updated the advanced replacement service fee/replacement fee.
Neosensory, Inc (“Neosensory,” “we,” “us” or “our”) provides transformative sound-to-touch devices that enable you to interpret sounds with your sense of touch. These Terms of Service (the “Terms”) apply to your use of your purchase of our products (“Products”), use of and access to platform and/or subscription services (the “Services”), and use of our mobile application software (the “App”). By purchasing our Products or by using the App or the Services, you agree to these Terms.
PLEASE READ THESE TERMS CAREFULLY, INCLUDING THE “DISPUTE RESOLUTION” SECTION (SECTION 18), AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST NEOSENSORY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
NOTICE REGARDING SUBSCRIPTIONS: WE MAY OFFER SUBSCRIPTION SERVICES FOR USE OF OUR PRODUCTS AND SERVICES (“SUBSCRIPTION SERVICES”) SUBSCRIPTION SERVICES AUTOMATICALLY RENEW UNLESS YOU CANCEL THEM. CANCELATIONS MUST BE RECEIVED AT LEAST TEN (10) BUSINESS DAYS PRIOR TO THE DATE OF RENEWAL UNLESS OTHERWISE SET FORTH IN THESE TERMS. YOU WILL BE CHARGED SUBSCRIPTION FEES PLUS APPLICABLE TAXES UNTIL YOUR SUBSCRIPTION IS CANCELED. BY CREATING A SUBSCRIPTION ACCOUNT, YOU CONSENT TO ALLOW NEOSENSORY TO CHARGE YOUR CREDIT CARD, EITHER DIRECTLY OR THROUGH ITS PAYMENT PROCESSORS, FOR THE AMOUNTS DUE FOR YOUR INITIAL SUBSCRIPTION PERIOD AND FOR ADDITIONAL SUBSCRIPTION PERIODS UNTIL YOUR ACCOUNT IS CANCELED OR TERMINATED. NO REFUNDS ARE PROVIDED IF YOU CANCEL. TO CANCEL YOUR SUBSCRIPTION, YOU MUST SEND A CANCELATION NOTICE BY EMAIL TO SUPPORT@NEOSENSORY.COM.
NOTICE REGARDING TRANSFER OF DATA: USE OF THE SERVICES REQUIRES THAT PERSONAL DATA BE PROCESSED BY NEOSENSORY IN THE UNITED STATES OF AMERICA, WHERE THE COMPUTING SYSTEMS AND INFRASTRUCTURE NECESSARY FOR YOU TO USE THE SERVICES ARE LOCATED. FEATURES AND CAPABILITIES OF THE SERVICES WOULD NOT BE AVAILABLE WITHOUT SUCH PROCESSING OF PERSONAL DATA IN THE UNITED STATES OF AMERICA AND YOU HEREBY EXPRESSLY CONSENT TO THE PROCESSING BY, AND TRANSFER OF PERSONAL DATA TO, NEOSENSORY IN THE UNITED STATES OF AMERICA FOR THAT PURPOSE.
NOTICE REGARDING ADDITIONAL RIGHTS: YOU MAY HAVE THE RIGHT TO EXERCISE ADDITIONAL RIGHTS WITH RESPECT TO YOUR PERSONAL DATA WHICH ARE AVAILABLE TO YOU UNDER APPLICABLE LAWS, INCLUDING: (A) RIGHT TO ERASURE, DELETION OR CORRECTION OF PERSONAL DATA; (B) A RIGHT TO OBJECT TO, OR TO RESTRICT, PROCESSING OF PERSONAL DATA, OR (C) A RIGHT TO REQUEST INFORMATION ABOUT DATA WE COLLECT OR TO REQUEST PORTING PERSONAL DATA. IF YOU WOULD LIKE TO EXERCISE SUCH RIGHTS, PLEASE CONTACT US AT SUPPORT@NEOSENSORY.COM WITH YOUR SPECIFIC REQUEST. WE WILL CONSIDER YOUR REQUEST IN ACCORDANCE WITH APPLICABLE LAWS AND, WHERE REQUIRED TO ADHERE TO YOUR REQUEST, WE WILL DO SO WITHIN THE TIME PERIODS REQUIRED BY APPLICABLE LAW. TO PROTECT YOUR PRIVACY AND SECURITY, WE MAY TAKE STEPS TO VERIFY YOUR IDENTITY BEFORE COMPLYING WITH THE REQUEST AND MAY CHARGE A FEE TO PROCESS YOUR REQUEST AS ALLOWED BY APPLICABLE LAW.
Neosensory reserves the right to change or modify these Terms on a going forward basis at any time and in our sole discretion. If Neosensory makes changes to these Terms, we will provide notice of such changes as appropriate, such as by sending an email notification to the address you’ve provided, providing notice through the App or Services and/or updating the “Last Updated” date at the top of these Terms. Your continued use of the App or the Services will confirm your acceptance of the revised Terms. If you do not agree to the revised Terms, you must stop using the App and the Services. We encourage you to review the Terms from time to time to ensure you understand the terms and conditions that apply to your access to, and use of, the Services.
This agreement was written in English (US). To the extent any translated version of this agreement conflicts with the English version, the English version controls.
1. Accounts and Access and Use of Services
You are responsible for all activity that occurs in association with your account and for maintaining the confidentiality of your password and account. Neosensory shall not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials. You agree to immediately notify Neosensory at firstname.lastname@example.org of any unauthorized use of your password or account or any other breach of security.
Persons under the age of 13, or any higher minimum age in the jurisdiction where that person resides, are not permitted to access or use the Service unless their parent has consented in accordance with applicable law. You may only connect to the Service using the App and a Product that is manufactured, distributed, or sold by us or our authorized resellers or agents. You may not connect to the Service with any other device.
The App includes features that may allow connections to the Services through your wireless data plan, and if you use those features, your wireless carrier’s standard charges, data rates and other fees may apply.
2. Product Purchase Terms
By purchasing products through the Site, you authorize us to charge your selected payment method for all applicable charges for your order, plus applicable taxes. The total order amount, including tax and shipping charges will be charged to your selected payment method in full at the time the order is placed. All purchases through the Site are final and all charges are nonrefundable except as otherwise set forth in these Terms or required by applicable law.
We endeavor to ship products to you within 24 hours after receiving your order, but please allow approximately ten (10) business days for the product to arrive at your shipping destination. We ship only to destinations in the United States and select foreign countries. Risk of loss and title for products you’ve ordered pass to you upon delivery of the products to the carrier. We reserve the right to cancel orders in the event of shipping delays or product shortages, in which case we will notify you and issue you a refund to the payment method you used for payment.
If you are not 100% satisfied with your purchase, you can return your product to us, at your expense, for a full refund less shipping charges within thirty (30) days following the purchase date (the “Free Return Period”). Products must be in the condition you received them, and in the original packaging in order for you to be entitled to a refund. We want to provide a risk-free online shopping experience, so if for whatever reason you’re not happy with your purchase, just contact our Customer Care team at email@example.com before the end of the Free Return Period for return instructions.
Neosensory is not responsible for any customs and related import duties and taxes applicable to your order. All fees imposed during or after shipping are your sole responsibility (tariffs, taxes, etc.).
Neosensory is not liable for any products damaged or lost during shipping. If you received your order damaged, please contact the shipment carrier to file a claim. Please save all packaging materials and damaged goods before filing a claim.
3. Product Warranty
You may need only simple instructions to correct a problem with your Product. We recommend that you try the Site for Product information or reach out to us by email at firstname.lastname@example.org. If the problem cannot be solved with the troubleshooting information available online or over the telephone, your product may be subject to our warranty or we may be otherwise able to provide repair or replacement options. Please do not send products to Neosensory without contacting us first by email at email@example.com.
Neosensory warrants to the original purchaser that the hardware Product shall be free from defects in material and workmanship 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 the Product in the European Economic Area, the warranty period is two (2) years from the date of purchase (the “Product Warranty”). If a defect covered by this warranty occurs during this warranty period, Neosensory will repair or replace the defective hardware product or component, free of charge, provided that in some instances, it may be necessary for you to ship the complete product, freight prepaid and insured for loss or damage, to Neosensory. The original purchaser is entitled to this warranty only if the date of purchase is registered at point of sale or the consumer can demonstrate, to Neosensory’s satisfaction, that the product was purchased new within the applicable warranty period.
THIS WARRANTY SHALL NOT APPLY IF THIS PRODUCT: (a) IS USED WITH PRODUCTS NOT SOLD OR LICENSED BY NEOSENSORY. (INCLUDING, BUT NOT LIMITED TO, NON-LICENSED ADAPTERS, SOFTWARE, AND POWER SUPPLIES); (b) IS MODIFIED OR TAMPERED WITH; (c) IS DAMAGED BY NEGLIGENCE, ACCIDENT, UNREASONABLE USE, OR BY OTHER CAUSES UNRELATED TO DEFECTIVE MATERIALS OR WORKMANSHIP; OR (d) HAS HAD THE SERIAL NUMBER ALTERED, DEFACED OR REMOVED.
NEOSENSORY MAKES NO OTHER WARRANTIES WITH RESPECT TO ANY HARDWARE, SOFTWARE, OR SERVICE, WHETHER EXPRESS OR IMPLIED, AND ANY APPLICABLE IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED. THE FOREGOING DISCLAIMER OF WARRANTIES WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LAWS OF SOME STATES OR JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU. IN NO EVENT SHALL NEOSENSORY BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, REGARDLESS OF THE FORM OR THE ACTION OR THE THEORY OF RECOVERY, EVEN IF NEOSENSORY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, AND LIMITS LIABILITY TO REPLACEMENT, REPAIR OR REFUND OF THE PURCHASE PRICE PAID FOR THE PRODUCT, AT NEOSENSORY’S OPTION. THIS DISCLAIMER OF LIABILITY FOR DAMAGES WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREIN SHALL FAIL OF ITS ESSENTIAL PURPOSE. SOME STATES DO NOT ALLOW LIMITATIONS OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
This warranty gives you specific legal rights. You may also have other rights which vary from state to state or province to province. Neosensory’s address is: Neosensory Inc, 1302 Waugh Drive, #447, Houston, TX, 77019. This warranty is only valid in the United States, Canada and the EEA.
4. Advanced Replacement Program
If you find that your Product is defective and you contact us during the Product warranty period, you may take advantage of our advance replacement program. To take advantage of this advance replacement program, please contact us by email at firstname.lastname@example.org. We will charge you $70 for the advance replacement service, but will refund that amount once you return the defective Product, which must be returned within thirty (30) days of your advance replacement request. If you utilize the advance replacement program for any number of subsequent times before returning the defective Product(s), we will charge you $589 for each advance replacement service, but will refund that amount once you return the defective Product(s), which must be returned within thirty (30) days of your advance replacement request. IF YOU DON’T RETURN DEFECTIVE PRODUCTS WITHIN THE APPLICABLE RETURN PERIOD, YOU AUTHORIZE US TO CHARGE YOUR PAYMENT METHOD FOR THE FULL RETAIL PRICE OF THE PRODUCT, PLUS TAX, SHIPPING AND HANDLING CHARGES.
5. Subscription Period and Subscription Fees
The subscription period for Subscription Services shall be for a period of two (2) years (“Subscription Period”) and Subscription Services are subject to fees that we charge (“Subscription Fees”). An initial Subscription Fee is charged upon commencement of Subscription Services, and a Product is sent to you for your use as part of Subscription Services. Monthly Subscription Fees are charged monthly thereafter. For renewals, Neosensory will automatically charge your credit card the amount of the then-current fee for your type of account, plus applicable taxes. All payments are non-refundable. To the extent that payment mechanisms are provided through third parties, you agree that Neosensory shall have no liability to you arising out of the acts or omissions of such third parties.
At the end of your initial Subscription Period, your Subscription Services will automatically renew for an additional Subscription Period unless you cancel within thirty (30) days prior to the end of your then-current Subscription Period. You may cancel the automatic renewal by contacting us at email@example.com.
If you don’t cancel automatic renewal, and renew for an additional Subscription Period, you have the option of upgrading your Product to the then-current version without additional charge. To upgrade your product upon the renewal of your Subscription Period, please contact us at firstname.lastname@example.org.
If you fail to pay monthly Subscription Fees or if you elect to cancel your Subscription Period (other than canceling an automatic renewal), you will be charged an early termination fee of $150 and shall be required to either return the Product provided to you within thirty (30) days following the date that return instructions are made available to you (the “Return Period”), or purchase the Product by paying $589, less the monthly Subscription Fees you’ve previously paid since receiving your most recent Product (“Purchase Amount”). If we do not receive your Product return within the Return Period plus five (5) days, you acknowledge and agree that: (i) you will have purchased the Product as of the end of the Return Period for the Purchase Amount; (ii) you are responsible for paying the Purchase Amount without offset, deduction or chargeback, and (iii) you authorize us to charge your payment method for the Purchase Amount. To cancel your subscription, please contact us at email@example.com and we will provide you with necessary instructions on Product return or purchase. Please note that the Subscription Period will not be canceled until you pay the termination fee and either return or purchase the Product as provided above.
In addition to the standard Product warranty we provide, during the Subscription Period we provide a replacement service if the Product becomes defective or broken/damaged after the standard warranty period has ended. For latent Product defects (e.g. not caused by you), we will pay for return shipping and handling. For broken or damaged devices, you will be required to pay a $70 replacement fee along with shipping and handling charges to send the broken or damaged Product to us and to receive a replacement from us. We reserve the right to charge a $70 replacement fee if the Product is returned to us under a claim of latent defect and we determine, in our reasonable discretion, that the Product is broken or damaged. Replacement Product may be new or refurbished. To take advantage of this replacement service, please contact us at firstname.lastname@example.org.
BY CREATING AN ACCOUNT FOR SUBSCRIPTION SERVICES YOU CONSENT TO ALLOW NEOSENSORY TO CHARGE YOUR CREDIT CARD, EITHER DIRECTLY OR THROUGH ITS PAYMENT PROCESSORS, FOR THE AMOUNTS DUE FOR YOUR INITIAL SUBSCRIPTION PERIOD AND FOR ADDITIONAL SUBSCRIPTION PERIODS UNTIL YOUR ACCOUNT IS CANCELED OR TERMINATED. ONCE YOUR CREDIT CARD IS CHARGED, YOUR CONTROL OF YOUR ACCOUNT IS DEEMED ESTABLISHED. YOU MUST MAINTAIN AN ACTIVE CREDIT CARD DURING THE SUBSCRIPTION PERIOD AND ANY RENEWALS.
6. Your Use of the Services and Content
6.1 License to Use the Services and Software.Subject to these Terms, Neosensory grants you a non-exclusive, non-transferable license when you purchase a Product or establish an account or subscribe to Subscription Services, to: (i) download and install the App on devices within your possession and control; and (ii) use and access the Services for your own use as enabled by the features of the Services for your account. Except for the foregoing license grant, these Terms do not grant you any rights to patents, copyrights, trade secrets, trademarks, source code, or any other right, title or interest in the Software or Services, ownership of which is retained by Neosensory and its suppliers, as applicable. App updates are governed by these Terms. The App is licensed, not sold, to you for use only under these Terms, and Neosensory reserves all rights not expressly granted to you. Except as expressly authorized in these Terms or allowed by applicable law, you may not use, copy, modify, reverse engineer, disassemble, decompile, modify, or transfer the App, or otherwise attempt to derive the source code of the App, or authorize any third party to do any of the foregoing. The App is a “commercial item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth in these Terms. THE SOFTWARE IS PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.
6.2 Third-Party Content. We may make available to you services, applications, or content provided by third parties (“Third Party Content”). You acknowledge and agree that Neosensory shall not have any responsibility or liability with respect to your access to or use of the Third Party Content, or any content or functionality contained in such Third Party Content, your rights to which are solely provided pursuant to a license between you and the provider of such Third Party Content. In no event shall Neosensory be considered the licensor of the Third Party Content, to have granted any rights to use the Third Party Content, to have assumed any obligations with respect to the Third Party Content, or to have made any representations or warranties with respect to the Third Party Content.
6.3 Notifications. As party of the Services, we may send you notifications, alerts, emails, and other electronic communications, and by using the Services you agree to the receipt of these communications.
7. Ownership and Intellectual Property
Unless otherwise indicated, the App and the Services are the property of Neosensory or our licensors and are protected by copyright, trademark and other laws of the United States and foreign countries. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the App or the Services.
Neosensory and the Neosensory logo are trademarks or registered trademarks of Neosensory, Inc. The Neosensory Marks and those of its affiliates may not be copied, imitated or used, in whole or in part, without prior written permission, including as authorized by any applicable brand guidelines. All other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective owners and may not be used without permission of the applicable trademark holder.
You may submit questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information about Neosensory and our Services (collectively, “Feedback”). You agree that Neosensory and its affiliates shall be able to use the Feedback in any way it may choose without any obligation to you.
9. Export Compliance and U.S. Government Rights
You will comply with all applicable export control laws of the United States and any other applicable governmental authority, including without limitation, the U.S. Export Administration Regulations (“Export Laws”). You will not, directly or indirectly, export, re-export or download any products, services or technology of Neosensory: (a) to any individual, entity or country prohibited by Export Laws, including by any U.S. sanctions program; (b) to anyone on the SDN List, the Denied Persons List or Entity List or other export control lists; or (c) for any purpose prohibited by Export Laws, including nuclear, chemical or biological weapons proliferation or development of missile technology. You further represent and warrant that no U.S. federal agency has suspended, revoked or denied your export privileges and you are not listed on the SDN List. The App and Services, including all related software, technical data and documentation, are “Commercial Items” as that term is defined in 48 C.F.R. §2.101. We provide the Services for U.S. Government end use solely in accordance with the following: (a) the Services are licensed only as Commercial Items; and (b) the U.S. Government will have the same rights as all other end users pursuant to these Terms. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for U.S. Department of Defense transactions, DFARS 252.227-7015 (Technical Data – Commercial Items) and DFARS 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a U.S. Government agency has a need for any additional rights, it must negotiate directly with Neosensory to determine if the parties can negotiate an acceptable license amendment that must be included in any applicable contract or agreement.
You are granted a limited, non-exclusive right to create text hyperlinks to our websites for noncommercial purposes; however, you may not use our logos or other proprietary graphics to link to our sites without our express written permission.
The Site may contain links to third-party websites, applications or other third-party services, and you understand that by accessing third-party links, you may be exposed to content that is offensive, harmful, inaccurate or otherwise inappropriate. You understand and agree that we are not responsible or liable for the availability or accuracy of such third-party properties or the content, products or services made available through such properties. We do not endorse or control such third-party properties and we make no representations or warranties of any kind regarding such properties. If you access or use any third-party properties, you should also be aware that such third parties’ terms and policies will govern.
11.1 THERE ARE IMPORTANT HEALTH AND SAFETY WARNINGS AND INSTRUCTIONS THAT YOU MUST READ BEFORE USING THE PRODUCTS AND THE APP. BY USING THE PRODUCT OR THE APP, YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTAND THESE WARNINGS AND INSTRUCTIONS. WE MAY UPDATE OR REVISE THESE WARNINGS AND INSTRUCTIONS, SO PLEASE REVIEW THEM PERIODICALLY. ADDITIONAL HEALTH AND SAFETY WARNINGS AND INSTRUCTIONS MAY BE PROVIDED BY DEVELOPERS IN RELATION TO SPECIFIC THIRD PARTY APPLICATIONS AND/OR CONTENT. YOU REPRESENT AND WARRANT THAT YOU WILL READ ALL HEALTH AND SAFETY WARNINGS AND INSTRUCTIONS PROVIDED BY SUCH THIRD PARTIES, AND THAT NEOSENSORY PARTIES SHALL NOT HAVE ANY LIABILITY TO YOU FOR YOUR USE OF SUCH THIRD PARTY APPLICATIONS AND/OR CONTENT.
11.2 YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR ACCESS TO AND USE OF THE APP AND THE SERVICES IS AT YOUR SOLE RISK. AS BETWEEN YOU AND NEOSENSORY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APP AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT FOR THE PRODUCT WARRANTY ABOVE, NEOSENSORY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NEOSENSORY DOES NOT REPRESENT OR WARRANT THAT (A) THE FUNCTIONS CONTAINED IN THE PRODUCTS, THE APP, OR THE SERVICES WILL BE ACCURATE OR MEET YOUR REQUIREMENTS; (B) THE OPERATION OF THE PRODUCTS, THE APP OR THE SERVICES WILL BE SECURE, UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE, OR (C) EXCEPT FOR SPECIFIC PRODUCT WARRANTIES, THAT ANY DEFECTS IN THE PRODUCTS, THE APP, OR THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY NEOSENSORY WILL CREATE A WARRANTY. THE FOREGOING DISCLAIMER OF WARRANTIES WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LAWS OF SOME STATES OR JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.
11.3 Buzz can detect loud tonal emergency sounds (e.g. a smoke alarm), and vibrate accordingly. However, Buzz is not a safety alarm and is not a replacement for a safety warning system. You should not rely solely on Buzz as a safety warning system.
You agree to release, indemnify and hold harmless Neosensory and our affiliates, independent contractors and service providers, and each of their respective directors, officers, employees and agents (collectively, “Neosensory Parties”) from any and all losses, liabilities, damages, fines, penalties, expenses, including reasonable attorneys’ fees and costs, rights, claims, actions of any kind and injury (including death) arising out of or relating to (a) your purchase or use of, or inability to use, the App or the Services; (b) your violation of these Terms or any other applicable terms, policies, warnings or instructions provided by Neosensory or a third party in relation to the App or the Services, (c) your violation of any applicable law or any rights of any third party; or (d) any or Feedback you provide. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Neosensory Party from or against any liability, losses, damages or expenses incurred as a direct result of any action or inaction of such Neosensory Party. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
13. Limitation of Liability
THE NEOSENSORY PARTIES SHALL HAVE NO LIABILITY FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, PUNITIVE, INDIRECT, OR INCIDENTAL DAMAGES, ARISING FROM OR RELATED TO YOUR USE OR INABILITY TO USE THE PRODUCT, THE APP, OR THE SERVICES, EVEN IF AN NEOSENSORY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE NEOSENSORY PARTIES ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE COST OF THE PRODUCTS PURCHASED BY YOU OR, FOR SERVICES SUBSCRIPTIONS, THE AMOUNT YOU PAID FOR THE THEN-CURRENT SUBSCRIPTION. THE FOREGOING DISCLAIMER OF CERTAIN DAMAGES AND LIMITATION OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LAWS OF SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, NOTHING IN THESE TERMS EXCLUDES OR LIMITS OUR LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE.
14. Dispute Resolution by Binding Arbitration.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO SUBMIT TO BINDING ARBITRATION (JURY TRIAL WAIVER) OF ANY AND ALL DISPUTES (OTHER THAN SPECIFIED INTELLECTUAL PROPERTY CLAIMS AND SMALL CLAIMS) WITH NEOSENSORY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM NEOSENSORY (NO CLASS ARBITRATIONS, CLASS ACTIONS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS).
14.1 Binding Arbitration; Disputes; Small Claims. You and Neosensory agree to waive any right to a jury trial, or the right to have any Dispute resolved in any court, and instead accept the use of binding arbitration (which is the referral of a Dispute to one or more impartial persons for a final and binding determination); provided, however, that you have the right to litigate any Dispute in small claims court, if all the requirements of the small claims court, including any limitations on jurisdiction and the amount at issue in the Dispute, are satisfied. You agree to bring a Dispute in small claims court in San Mateo County, California or, if you reside in the U.S., in a small claims court in your county of residence. “Dispute” as used in this Section 14 means any dispute, cause of action, claim, or controversy arising out of or in any way related to Neosensory, these Terms, the subject matter of these Terms, or access to and use of the App or the Services, including but not limited to contract, personal injury, tort, warranty, statute or regulation, or other legal or equitable basis and disputes that involve third parties (such as developers of Third Party Content), except any dispute, cause of action, claim, or controversy relating to Neosensory’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and/or patents). You and Neosensory empower the arbitrator with the exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of these terms or formation of this contract, including the arbitrability of any dispute and any claim that all or any part of these terms are void or voidable.
14.2 No Class Arbitrations, Class Actions or Representative Actions. You and Neosensory agree that any Dispute is personal to you and Neosensory, and that any Dispute shall only be resolved by an individual arbitration and shall not be brought as a class arbitration, a class action, or any other representative proceeding. Neither party agrees to class arbitration, or an arbitration where a person brings a Dispute as a representative of any other person or persons. Neither you nor Neosensory agree that a Dispute can be brought as a class or representative action whether inside or outside of arbitration, or on behalf of any other person or persons.
14.3 Federal Arbitration Act. You and Neosensory agree that these Terms affect interstate commerce and that the enforceability of Section 14 shall be governed by, construed, and enforced, both substantively and procedurally, by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”) to the maximum extent permitted by applicable law.
14.4 Confidentiality. The arbitrator, Neosensory, and you shall maintain the confidentiality of any proceedings, including but not limited to, any and all information gathered, prepared, and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator shall have the authority to make appropriate rulings to safeguard that confidentiality, unless the law provides to the contrary.
14.5 Process. Our goal is to resolve claims fairly and quickly. Accordingly, for any Dispute that you have against Neosensory, you agree to first contact Neosensory and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Neosensory. The Notice to Neosensory must be sent by certified mail addressed to: General Counsel, Neosensory, Inc, 1302 Waugh Drive, #447, Houston, TX, 77019. The Notice must (a) include your name, residence address, and the email address and/or mobile telephone number associated with your account; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. If you and Neosensory cannot reach an agreement to resolve the claim within 30 days after such Notice is received, then either party may, as appropriate in accordance with this Section 14, commence an arbitration proceeding or file a claim in court. You and Neosensory agree that any Dispute must be commenced or filed within one year after such claim arose; otherwise, the Dispute is permanently barred.
In the event that you and Neosensory cannot resolve a Dispute and you do not pursue your claims through small claims court, you or Neosensory shall promptly submit the Dispute to binding arbitration through JAMS and the JAMS JA streamlined arbitration rules and procedures then in force (see www.jamsadr.com for additional information), or may pursue a dispute in court in Santa Clara County, California, which you hereby consent to be the exclusive jurisdiction and venue for such dispute, and not by arbitration, if the dispute is brought by us and pertains to any cause of action, claim, or controversy relating to Neosensory’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and/or patents), or you opt out of arbitration, as provided below.
As limited by the FAA, these Terms, and the applicable JAMS JA streamlined arbitration rules, the arbitrator will have the exclusive power and jurisdiction to make all procedural and substantive decisions concerning the Dispute; provided, however, that this power does not include the power to conduct a class arbitration or a representative action, which is prohibited by these Terms (as stated above). The arbitrator may only conduct an individual arbitration, and may not consolidate more than one person’s claims and may not preside over any form of representative or class proceeding, or any proceeding on behalf of or involving more than one person or persons.
Unless the arbitrator finds the arbitration was frivolous or brought for an improper purpose, Neosensory will pay all filing, JAMS, and arbitrator’s fees and expenses. If the arbitrator issues you an award that is greater than the value of our last written settlement offer made before an arbitrator was selected (or if we did not make a settlement offer before an arbitrator was selected), then we will pay you the amount of the award or US $5,000, whichever is greater, and pay your attorney, if any, the amount of attorneys’ fees incurred, and reimburse any expenses (including expert witness fees and costs) that you or your attorney reasonably accrue for investigating, preparing and pursuing your claim in arbitration. We waive any right to seek an award of attorneys’ fees and expenses in connection with any non-frivolous arbitration between you and us.
14.6 Right to Opt Out. You may opt out of this agreement to arbitrate. If you do so, neither you nor Neosensory can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing within 30 days of the date that you first became subject to this arbitration provision, and must include your name and residence address, the email address you use for your Neosensory account (if you have one), and a clear statement that you want to opt out of this arbitration agreement. Any requests to opt out must be sent to: General Counsel, Neosensory, Inc, 1302 Waugh Drive, #447, Houston, TX, 77019.
Unless you choose to opt out, this dispute resolution provision in Section 14 shall survive termination of these Terms.
15. Governing Law
Neosensory is based in the United States and our Services are subject to U.S. law. We make no representations or warranties that the Services are appropriate or available for use in other locations. The laws of the State of California, excluding its conflicts of law rules, govern your access to and use of the Services. Your access to and use of the Services may also be subject to other local, state, national or international laws. To the extent the provisions in Section 14 do not apply, you further agree that all disputes, causes of action, claims, or controversies arising under these Terms that cannot be settled through informal negotiation will be resolved exclusively in a state court located in Santa Clara County, California, and you hereby agree to submit to the exclusive personal jurisdiction of such courts for the purposes of litigating all such claims.
16. Modifications to the Services
Neosensory reserves the right to change, suspend, remove, discontinue or disable access to the Services or particular portions thereof, at any time and without notice. In no event will Neosensory be liable for the removal of or disabling of access to any portion or feature of the Services.
You agree that Neosensory, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the App and/or Services and remove and discard any content within the Services, for any reason, including, without limitation, for lack of use or if Neosensory believes that you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Product, App or Services, may be referred to appropriate law enforcement authorities. Neosensory may also in its sole discretion and at any time discontinue providing the Services, or any part thereof, with or without notice. You agree that any termination of your access to the Services under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Neosensory may immediately deactivate or delete your account and all related information and files associated with your use of the Services. Further, you agree that Neosensory Parties will not be liable to you or any third party for any termination of your access to the Services. provided that Neosensory will pay a pro-rata refund if it terminates your access to the Subscription Services without cause. Except as stated in the foregoing sentence, no refunds shall be payable for cancelation or termination of your account with the Subscription Services. Upon expiration or termination of these Terms or your account for Subscription Services, all licenses granted by Neosensory shall cease. Limits on liability, payment obligations, ownership provisions, and Sections 6.2, and 7 through 18 shall survive expiration or termination.
The failure of Neosensory to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of these Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms without the prior written consent of Neosensory, but Neosensory may assign or transfer these Terms in whole or in part, without restriction. Neosensory Parties shall not have any liability to you for any or be deemed to be in default, for any delay or failure to perform any act under these Terms resulting, directly or indirectly, from acts of God, civil or military authority, acts of public enemy, terrorism, war, accidents, fires, explosions, earthquake, flood, failure of transportation, strikes or other work stoppages, or any other cause beyond its reasonable control. The section titles in these Terms are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Services may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Services.
Notice for California Participants
Under California Civil Code Section 1789.3, participants of the Services from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
If you have any questions or concerns regarding these Terms or our Services, please contact us at email@example.com.