TERMS AND CONDITIONS OF ONLINE SALES – 7 August 2017
THESE TERMS AND CONDITIONS CONTAIN VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY. THESE TERMS AND CONDITIONS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
BY PLACING AN ORDER FOR PRODUCTS FROM THIS WEBSITE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. YOU AFFIRM THAT IF YOU PLACE AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY, YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO THESE TERMS AND CONDITIONS.
YOU MAY NOT ORDER OR OBTAIN PRODUCTS FROM THIS WEBSITE IF YOU (I) DO NOT AGREE TO THESE TERMS AND CONDITIONS; (II) ARE NOT THE OLDER OF (A) AT LEAST 18 YEARS OF AGE OR (B) LEGAL AGE TO FORM A BINDING CONTRACT WITH NEUROVALENS; OR (III) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE’S CONTENTS OR PRODUCTS BY APPLICABLE LAW OR BY THESE TERMS AND CONDITIONS.
- Wellness Device. You acknowledge and agree that the Modius headset available through the Site is classified by the U.S. Food and Drug Administration, and the U.K. Medicines and Healthcare products Regulatory Agency, as a wellness device and should not be used to diagnose, treat, cure, mitigate or prevent any specific diseases, illnesses or medical conditions.
- Order Acceptance and Cancellation. You agree that your order is an offer to buy, under these Terms, all products listed in your order. All orders must be accepted by us or we will not be obligated to sell any products to you. Each order is subject to acceptance or rejection by us, in our sole discretion, even after we send you a confirmation email with your order number and details of the items you have ordered. Each accepted order will be interpreted as a single agreement, independent of any other orders. After having received your order, we will send you a confirmation email with your order number and details of the items you have ordered. You have the option to cancel your order at any time before we have sent your order confirmation email by contacting our Customer Service Department at support.modiushealth.com/rma where you will be issued with an RMA number. You shall have sole obligation to obtain all required approvals, permissions, and licenses in order to purchase, import, and use the products.
- Prices and Payment Terms.
- (i) All prices, discounts, and promotions posted on this Site are subject to change without notice. The price charged for a product will be the price in effect at the time the order is placed and will be set out in your order confirmation e-mail. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total and will be itemized in your shopping cart and in your order confirmation e-mail. We strive to display accurate price information, however, we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
- (ii) We may offer from time to time promotions on the Site that may affect pricing and that are governed by terms and conditions separate from these Terms. If there is a conflict between the terms for a promotion and these Terms, the promotion terms will govern.
- (iii) Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. We accept Visa, MasterCard, American Express, Discover, and PayPal for all purchases. You represent and warrant that
- (i) the credit card or PayPal information you supply to us is true, correct and complete;
- (ii) you are duly authorized to use such credit card or PayPal account for the purchase;
- (iii) charges incurred by you will be honored by your credit card company or PayPal;
- (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Site at the time of your order. Timely payment of the price and all other related charges is of the essence.
- Shipments; Delivery; Title and Risk of Loss.
- (i) We will arrange for shipment of the products to you. Please check the individual product page for specific delivery options. You will pay all shipping and handling charges specified during the ordering process.
- (ii) Title and risk of loss pass to you upon our transfer of the products to the carrier. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
- Returns and Refunds. We will accept a return of the products for (i) an exchange; or (ii) refund of your purchase price, less the original shipping and handling costs, unless the item is faulty in which case we will refund the original shipping and handling costs. At the time of the return, subject to these Terms, You may select whether you want a refund or to exchange the returned items. Such returns must be made within ninety (90) days of shipment, and the Modius must be returned with charging cable, any unused gel pads and alcohol wipes in their original box and in an acceptable condition. We will not accept any returns after ninety (90) days of shipment.To return products, you must e-mail our Returns Department at Neurovalens, 4th Floor, The Warehouse, 7 James Street South, Belfast, BT2 8DM to obtain a Return Merchandise Authorization (“RMA”) number before shipping your product. With that initial email, you must tell us whether you want a refund or an exchange on the returned items. In order to return product please contact us via support.modiushealth.com/rma in order to arrange return shipping.Refunds are processed within approximately ten (10) business days of our receipt of your merchandise. We will send you an email to notify you that we have received your returned item, and we will inspect your returned item after such notification. We will also notify you of the approval or rejection of your refund or exchange, which acceptance or rejection will be in our sole discretion. If approved, your refund will be credited back to the same payment method used to make the original purchase on the Site. If approved, your exchange will be sent to you using the address and shipping instructions on your original order. WE OFFER NO REFUNDS OR EXCHANGES ON ANY PRODUCTS DESIGNATED ON THIS SITE AS NON-RETURNABLE OR AS SALE ITEMS.
- LIMITED WARRANTY. SUBJECT TO THE TERMS HEREIN, FOR THE PERIOD STARTING ON THE DATE OF YOUR PURCHASE AND ENDING twelve (12) months LATER (THE “WARRANTY PERIOD”), WE WARRANT THAT THE PRODUCTS PURCHASED FROM THE SITE WILL BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP. The Warranty Period is not extended if we replace a warranted product. We may change the availability of this limited warranty at our discretion, but any changes will not be retroactive. This limited warranty extends only to the original purchaser of products from the Site. It does not extend to any subsequent or other owner or transferee of the product.This limited warranty does not cover any damages due to:
- (i) transportation;
- (ii) storage;
- (iii) improper use;
- (iv) failure to follow the product instructions;
- (v) modifications;
- (vi) combination or use with any products, materials, processes or other matter not provided or authorized in writing by NEUROVALENS;
- (vii) unauthorized MODIFICATIONS;
- (viii) normal wear and tear; or
- (ix) external causes such as accidents, abuse, or other actions or events beyond our reasonable control.
WE shall not be liable for a breach of the warranty set forth in THIS SECTION 6 unless:
- (i) YOU give written notice of the defect, reasonably described, to US within ninety (90) days of the time when YOU discover or ought to have discovered the defect;
- (ii) WE ARE given a reasonable opportunity after receiving the notice to examine such PRODUCTS and YOU (if requested to do so by US) return such PRODUCTS to OUR place of business at OUR cost for the examination to take place there;
- (iii) WE reasonably verify YOUR claim that the PRODUCTS are defective.
WE shall not be liable for a breach of the warranty set forth in THIS 6 IF:
- (i) YOU make any further use of THE PRODUCTS after giving such notice;
- (ii) the defect arises because YOU failed to follow OUR oral or written instructions as to the storage, installation, commissioning, use or maintenance of the PRODUCTS; or
- (iii) YOU alter or repair such PRODUCTS without OUR prior written consent of Seller.
EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION 6, WE MAKE NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS SOLD ON THIS SITE, INCLUDING ANY:
- (i) WARRANTY OF MERCHANTABILITY;
- (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE;OR
- (iii) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the PRODUCTS sold on this Site. Third Party Products are not covered by the warranty in this Section 6. For the avoidance of doubt, We MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY:
- (i) WARRANTY OF MERCHANTABILITY;
- (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE;
- (iii) WARRANTY OF TITLE; OR
- (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
With respect to any defective products during the Warranty Period, we will, in our sole discretion, either:
- (i) replace such products free of charge or
- (ii) refund the purchase price of such products. We will also pay for shipping and handling fees to return the replacement product to you if we elect to replace the defective products.
NEITHER ANY PERFORMANCE OR OTHER CONDUCT, NOR ANY ORAL OR WRITTEN INFORMATION, STATEMENT OR ADVICE PROVIDED BY US OR ANY OF OUR SUPPLIERS, AGENTS OR EMPLOYEES WILL CREATE A WARRANTY, OR IN ANY WAY INCREASE THE SCOPE OR DURATION OF THIS LIMITED WARRANTY.
THE REMEDIES DESCRIBED ABOVE ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF THIS LIMITED WARRANTY. OUR LIABILITY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY YOU FOR THE DEFECTIVE PRODUCT THAT YOU HAVE PURCHASED THROUGH THE SITE, NOR WILL WE UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY LOSS OF PRODUCTION, WORK, DATA, USE, BUSINESS, GOODWILL, REPUTATION, REVENUE OR PROFIT, ANY DIMINUTION IN VALUE, COSTS OF REPLACEMENT PRODUCTS, OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
- Limitation of Liability. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THESE TERMS, REGARDLESS OF:
- (i) WHETHER SUCH DAMAGES WERE FORESEEABLE;
- (ii) WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND
- (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. OUR SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY YOU FOR THE PRODUCTS YOU HAVE ORDERED THROUGH OUR SITE.
- U.S. Export Controls. You represent and warrant to us that you are not:
- (i) a person, entity or governmental organization located in Cuba, Syria, North Korea or Iran or any other jurisdiction subject to a comprehensive or targeted economic sanctions or embargo program enforced by the United States government;
- (ii) a person, entity or governmental organization listed on the Specially Designated Nationals List maintained by the Office of Foreign Assets Controls at the U.S. Department of the Treasury or any similar list maintained by any part of the United States government; and
- (iii) acting on behalf of any person or entity described in subsections
- (i) and
- (ii) of this Section 8.
- Products Not for Resale. You agree to comply with all applicable laws and regulations of the various states and of the United States in connection with the purchase and use of products purchased from the Site. You represent and warrant that you are buying products from the Site for your own personal or household use only, and not for resale.
- Intellectual Property Use and Ownership. Our name, the term Modius, our logo and all related names, logos, product and service names, designs and slogans are our trademarks. All specifications, instructions, documentation or other written materials included with the products are copyrighted by us. You acknowledge and agree that Neurovalens is and will remain the sole and exclusive owner of all such intellectual property rights and the intellectual property rights in and to each product made available on this Site and any related specifications, instructions, documentation or other materials, including, but not limited to, all related copyrights, patents, trademarks, trade secrets, and other intellectual property rights. You do not and will not have or acquire any ownership of these intellectual property rights in or to the products made available through this Site, or of any intellectual property rights relating to those products.
- Indemnification. You shall indemnify, defend, and hold harmless Neurovalens and its officers, directors, partners, members, shareholders, employees, agents, affiliates, successors, and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, and the costs of enforcing any right to indemnification under these Terms and the cost of pursuing any insurance providers, incurred by us or awarded against us in a final judgment (collectively, “Losses”), arising out of or relating to your breach or non-fulfillment of any representation, warranty, or covenant under these terms.
- Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
- Governing Law and Jurisdiction. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware, or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware.
- Dispute Resolution and Binding Arbitration.
- YOU AND NEUROVALENS ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
- ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
- The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section 15. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section. The arbitration will be held in the English language, with a single arbitrator, in San Diego, California.
- The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
- You agree to arbitration on an individual basis. In any dispute, YOU WILL NOT BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
- If any provision of this Section 15 is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
- Assignment. You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section 16 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
- No Waivers. The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Neurovalens.
- No Third Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person other than you.
- (i) To You. We may provide any notice to you under these Terms by
- (a) sending a message to the e-mail address you provide, or
- (b) by posting to the Site. Notices sent by e-mail will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your e-mail address current.
- (ii) To Us. To give us notice under these Terms, you must contact us by personal delivery, overnight courier or registered or certified mail to Neurovalens, 4th Floor, The Warehouse, 7 James Street South, Belfast, BT2 8DM.
We may update the address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
- (i) To You. We may provide any notice to you under these Terms by
- Severability. If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
- Company details: Neurovalens Limited is registered with Company number NI617853 and registered address 8 Carmagrim Road, Portglenone, Ballymena, County Antrim, Northern Ireland, BT44 8BP