Terms of Sale
Terms of Sale
The following terms and conditions (the "Agreement") govern all use of PowerDot website ("Site"), PowerDot mobile application ("Application"), any of the products you purchase from us ("Products"), and all services we provide (together, all of the foregoing are referred to as the "Service").
The Service is provided to you by PowerDot, Inc. ("PowerDot", "Us", "We, or "Our"). The Service is subject to your ("You" or "Your") acceptance without modification of all of the terms and conditions contained herein and all other rules, policies and procedures that may be published from time to time on the Site by PowerDot ("Policies") - including, without limitation, PowerDot’s Limited Warranty and Returns Policy. To the extent any of the Policies conflict with this Agreement, such Policies shall control.
Special products and services provided by PowerDot may be subject to different or additional terms or conditions. To the extent they conflict with this Agreement, such different or additional terms and conditions will control.
PowerDot reserves the right, at its sole discretion, to modify or replace any of the terms or conditions of this Agreement at any time. You will be notified of such changes by email, account notification or a notice posted on the Service. Your continued use of the Service following the posting of any changes to this Agreement constitutes acceptance of those changes.
You hereby certify to PowerDot that You are at least 16 years of age. In jurisdictions where 16 is not the age of consent to contract, You represent and warrant that You have all necessary authorizations and permissions from an appropriate legal guardian. You also certify that You are otherwise legally permitted to use the Service and make any purchases.
Among other things, we track your muscle stimulation sessions’ data, and we display that information via our mobile application.
As a condition to using certain features of the Service, You will be required to register with PowerDot and select a password and provide your email address ("Login"). You shall provide PowerDot with accurate, complete, and up to date registration information. We reserve the right to refuse registration of or cancel a Login in its discretion. You shall be responsible for maintaining the confidentiality of Your password and other account information.
Subject to the terms and conditions of this Agreement, You shall have a non-exclusive, non-transferrable and non-sublicensable access to the Application from Your smartphone device, solely for the purposes for which the Application is provided. This license is personal to You and You will not use the Application on behalf of any third party. For clarity, the restrictions contained in the next section apply to the Application.
You shall not, nor permit anyone else to, directly or indirectly: (i) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or underlying algorithms of all or any part of the Service (except that this restriction shall not apply to the limited extent restrictions on reverse engineering are prohibited by applicable local law); (ii) modify or create derivatives of any part of the Service; (iii) rent, lease, or use the Service for any commercial purpose; (iv) remove or obscure any proprietary notices on the Service; (v) use the Service for any unlawful purpose; (vi) access any PowerDot's product or service not explicitly permitted by these terms; (vii) send unwanted messages or emails (i.e. "spam") to PowerDot’s users; (viii) use domain names or web URLs in Your username without Our prior written consent; (ix) interfere or disrupt the Service in any way; or (x) access the Service via any automated means including, without limitation, scripts, bots, spiders, crawlers, or scrapers. As between the parties, PowerDot shall own all title, ownership rights and intellectual property rights in and to the Service, and any copies or portions thereof.
In the event You submit any information to the Service (such as during the registration process), You represent and warrant that You have full right and authority to do so -- and that such information is complete and accurate. You are responsible for all activity that occurs on Your Service account (and You must not share Your log-in details with anyone).
The Service may permit You to publish or post -- to the PowerDot community or on social media such as Facebook or Instagram - text, images or other communications ("User Submissions"). For example, You may be able to share certain biometric, fitness and athletic achievements with the PowerDot community of users.
You shall be solely responsible for Your own User Submissions and the consequences of posting or publishing them. You agree that PowerDot has no liability with respect to any User Submissions, including and without limitation, the Your own User Submissions, and You hereby irrevocably release PowerDot and its officers and directors, employees, agents, representatives and affiliates, from any and all liability arising out of or relating to any person's User Submissions or any part thereof.
In connection with Your User Submissions, You affirm, represent, and warrant that (i) none of such User Submissions will violate any laws or regulations, (ii) none of such User Submissions will be defamatory, obscene or otherwise offensive, and (iii) the posting of such User Submission on or through the Service does not violate the privacy rights, publicity rights, intellectual property rights, contract rights, or any other rights of any person or entity.
By publishing or posting User Submissions, You hereby grant PowerDot a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, fully paid, sublicenseable and transferable license to use, modify, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Submissions in connection with the Service and PowerDot's (and its successors and assigns) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. For clarity, the foregoing license grant to PowerDot does not affect Your ownership or license rights to Your User Submissions.
PowerDot does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and PowerDot expressly disclaims any and all responsibility or liability in connection with User Submissions. PowerDot also reserves the right, in its sole discretion, to reject, refuse to post or remove any User Submissions. Notwithstanding the foregoing, PowerDot assumes no responsibility for monitoring the Service for inappropriate content, or modifying or removing such content from the Service.
USER CONTENT RESTRICTIONS
You must not submit any content that is: pornographic (or contains nudity), unlawful, offensive, threatening, racist, libellous, defamatory, obscene or otherwise objectionable or violates any third party's intellectual property rights, or rights of privacy or publicity. In connection with Your Content, You affirm, represent, and warrant that (and that You can and will demonstrate to PowerDot's full satisfaction upon its request that): (i) You have all necessary rights, licenses, consents and waivers to grant all of the rights and licenses You grant above, (ii) Your Content does not violate any laws or regulations, and (iii) Your Content does not infringe or otherwise violate any third party rights (including, without limitation, intellectual property rights, and the rights of publicity and privacy).
You are solely responsible for Your Content and the consequences of posting or publishing or sharing. You agree that PowerDot has no liability with respect to any of User Content, including, without limitation, Your Content, and You hereby irrevocably release PowerDot and its officers and directors, employees, agents, representatives and affiliates, from any and all liability arising out of or relating to any and all User Content.
PowerDot reserves the right to decide whether User Content is inappropriate or violates this Agreement. PowerDot may remove any User Content at any time, in its discretion, with or without notice.
You agree that the Service contains information and other content specifically provided by PowerDot or its partners and that such content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. Except as expressly authorized by PowerDot in writing, You shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such content. However, PowerDot hereby grants You a limited, revocable, non-sublicensable license to reproduce and display such content (excluding any software code); provided, that You retain all copyright and other proprietary notices contained therein. Reproducing, copying or distributing any such content, including any materials or design elements on the Service, for any other purpose is strictly prohibited without the express prior written permission of PowerDot.
The fees for our Products are as posted by us on the Site or in the Application. If You purchase a Product, You authorize PowerDot to charge You (per the payment method selected by the User through the Site or Application) for the price of the Product and all related shipping fees and taxes. You authorize PowerDot to use a third party payment processor.
RETURN POLICY AND LIMITED WARRANTY
PowerDot provides a return policy and a limited warranty on Products purchased from PowerDot, as described in our Limited Warranty and Returns Policy.
EXCEPT FOR (AND AS SET FORTH IN) THE FOREGOING LIMITED PRODUCT WARRANTY, THE SERVICE (INCLUDING, FOR CLARITY, THE SITE AND ANY SOFTWARE) ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
THIS DISCLAIMER OF WARRANTIES SHALL BE VOID TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
LIMITATION OF LIABILITY
IN NO EVENT SHALL POWERDOT, IT'S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, THIRD PARTY LICENSORS, OR THIRD PARTY SUPPLIERS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY WITH RESPECT TO THE SERVICE (OR ANY CONTENT OR INFORMATION AVAILABLE THROUGH THE SERVICE): (I) FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, EVEN IF FORESEEABLE, (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $100.00 (U.S.) (PROVIDED THAT, IN THE EVENT THE APPLICABLE CLAIM/DISPUTE DIRECTLY RELATES TO PRODUCTS USER PURCHASES FROM POWERDOT, SUCH DAMAGES CAP WILL BE EQUAL TO THE MONETARY VALUE OF THE APPLICABLE PRODUCTS AND ASSOCIATED SHIPPING). THE FOREGOING LIMITATIONS SHALL BE VOID TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
You shall indemnify and hold harmless PowerDot, its affiliates, and its partners, employees, contractors, directors, suppliers and representatives from all liabilities, losses, damages, claims, and expenses, including reasonable attorney fees, that arise from or in connection with (i) Your breach of this Agreement, (ii) any of Your Content (including, without limitation, with respect to the violation of any third party intellectual property rights, or rights of privacy or publicity), or (iii) Your misuse of any part of the Service (including, without limitation, any Product). PowerDot reserves the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by You, in which event You will fully assist and cooperate with PowerDot in asserting any available defences.
DISPUTES WITH OTHER USERS
You are solely responsible for Your interactions with other Service users. PowerDot reserves the right, but has no obligation, to monitor disputes between Our users. If You have a dispute with one or more users of the Service, You shall and hereby do release PowerDot (and its officers, directors, agents, subsidiaries, and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. To the extent We assist in the resolution of any dispute between You and any other Service users, such assistance is only a courtesy and, therefore, You acknowledge that PowerDot shall not be responsible or liable for such assistance or the results thereof.
If You want to terminate this Agreement - You must cancel Your Service account. You can cancel Your account by contacting Customer Support at email@example.com. PowerDot may terminate or suspend Your access to the Service at any time, with or without cause. Upon termination, You will no longer access (or attempt to access) your Service account. Termination may result in your Products no longer being able to properly function. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, all warranty disclaimers, limitations of liability and disputes resolutions provisions.
APPLE DEVICE TERMS
In the event You are using the Application in connection with a device provided by Apple, Inc. ("Apple"), the following shall apply:
- Both You and PowerDot acknowledge that this Agreement is concluded between You and PowerDot only, and not with Apple, and that Apple is not responsible for the Application or any content available through the Application;
- You will only use the Application in connection with an Apple device that You own or control;
- You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
- In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, You may notify Apple of such failure; upon notification, Apple's sole warranty obligation to You will be to refund to You the purchase price, if any, of the Application;
- You acknowledge and agree that PowerDot, and not Apple, is responsible for addressing any claims You or any third party may have in relation to the Application;
- You acknowledge and agree that, in the event of any third party claim that the Application or Your possession and use of the Application infringes that third party's intellectual property rights, PowerDot, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You represent and warrant that You are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and that You are not listed on any U.S. Government list of prohibited or restricted parties;
- Both You and PowerDot acknowledge and agree that, in Your use of the Application, You will comply with any applicable third party terms of agreement, which may affect or be affected by such use; and
- Both You and PowerDot acknowledge and agree that Apple and Apple's subsidiaries are third party beneficiaries of this Agreement, and that upon Your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as the third party beneficiary hereof.
Let's Try To Work It Out. Ideally, if You have any concerns or complaint against PowerDot, We would like to resolve the issue without resorting to formal court or arbitration proceedings. Therefore, before filing a claim against PowerDot, You agree to try to resolve the dispute informally by contacting firstname.lastname@example.org. PowerDot will attempt to resolve the dispute informally (and will contact You via email). If a dispute is not resolved within 15 days of submission, You may bring a formal proceeding.
Arbitration. Any disputes that are not settled informally shall be settled by binding arbitration in accordance with the rules and procedures of the Judicial Arbitration and Mediation Service, Inc. ("JAMS"). The arbitrator shall be selected by joint agreement between You and PowerDot. In the event the parties cannot agree on an arbitrator within thirty (30) days of the initiating party providing the other party with written notice that it plans to seek arbitration, the parties shall each select an arbitrator affiliated with JAMS, which arbitrators shall jointly select a third such arbitrator to resolve the dispute. The written decision of the arbitrator shall be final and binding on the parties and enforceable in any court. The arbitration proceeding shall take place in San Diego, California using the English language. Notwithstanding the foregoing, either party may bring claims for equitable or injunctive relief before a court (see the "General" section below) at any time.
Opt-out of Agreement to Arbitrate. You can decline this agreement to arbitrate by notifying PowerDot in writing within 30 days of the date that You first become bound by this Agreement. Your opt-out request must be sent to: email@example.com
You must include Your name and residence address, the email address You use for Your Service account, and a clear statement that You want to opt-out of this arbitration agreement.
No Class Actions. You may only resolve disputes with PowerDot 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. This paragraph will not apply to the extent prohibited by applicable law.
Going to Court. Subject to the arbitration provision above, You agree that the exclusive jurisdiction and venue for all disputes arising in connection with this Agreement shall be in the state and Federal courts located in San Diego, California. You hereby submit to such jurisdiction and venue.
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. PowerDot shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond PowerDot' reasonable control. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by You except with PowerDot's prior written consent. PowerDot may transfer, assign or delegate this Agreement and its rights and obligations without consent. This Agreement shall be governed by and construed in accordance with the laws of the state of California, as if made within California between two residents thereof. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein.