BIOPOD SYSTEMS INC.
Biopod Systems Inc. and its subsidiaries and affiliates (collectively, “Biopod”) provides, supplies and sells: (1) services accessible through biopod.com (“Web Apps”), (2) software that may be downloaded to your smartphone or tablet to access services (“Mobile Apps”); (3) subscription services, including services that can be accessed using the Web Apps and Mobile Apps (“Subscription Services”); and (4) Biopod hardware products (“Product” or, collectively, “Products”), all of which may be used singularly or other in combination. Some Biopod Products and Services can be used together or in ways that integrate with products and services from third parties. The term “Services” means the Web Apps, Mobile Apps and Subscription Services.
These Terms and Conditions of Sale and Use (“Terms”) govern your purchase, access to and use of the Services and the Products. Please read these terms carefully. They require the use of binding arbitration to resolve disputes rather than court litigation, including jury trials or class actions. Please follow the instructions in the Dispute Resolution and Arbitration section below if you wish to opt out of this provision. The term “you,” as used in these Terms, means any person or entity who purchases, accesses or uses the Services or Products and any person or entity who creates an Account (as defined in Section 2(a)) and accepts these Terms, including Owners, Authorized Users (as defined in Section 2(b)), and the parents or guardians of Authorized Users, as applicable (as described in Section 1(b)(ii)). These Terms give you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, limited warranty and limitations of liability under these Terms will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.
THIS IS A LEGAL AGREEMENT. BY ACKNOWLEDGING THE AGREEMENT OR BY PURCHASING, PLEDGING FOR, ACCESSING AND USING THE SERVICES AND THE PRODUCTS, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS AND USE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY (SUBJECT TO SECTION 1(b)(ii) BELOW) TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE, SUBJECT TO SECTION 1(b)(ii) BELOW, OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO PURCHASE, USE OR ACCESS THE SERVICES AND PRODUCTS AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD DISCONNECT YOUR PRODUCTS FROM YOUR ACCOUNT (AS DESCRIBED BELOW) AND CEASE ACCESSING OR USING THE SERVICES AND PRODUCTS.
AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATE OF THE SERVICES AND OF THE PRODUCTS CONNECTED TO THE SERVICES. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE SERVICES AND PRODUCTS.
THIS AGREEMENT CONTAINS IMPORTANT LIMITATIONS, WAIVERS, RELEASES AND DISCLAIMERS RESPECTING THE SERVICES AND PRODUCTS. PLEASE READ THIS AGREEMENT CAREFULLY, AS YOU ARE ACKNOWLEDGING AND ACCEPTING THESE LIMITATIONS, WAIVERS, RELEASES AND DISCLAIMERS.
- Overview, Eligibility, Customer Service, Term and Termination
(b) Eligibility. (i) You may use the Services and Products only if you can form a binding contract with Biopod (except subject to the provisions of clause (1)(b)(ii) below), and only if you are in compliance with these Terms and all applicable local, state/provincial, national, and international laws, rules, and regulations. Only individuals age 18 and older are permitted to act as Owners of Biopod Accounts. (ii) If you are an Authorized User, you represent and warrant that you are over the age of 13 (or equivalent minimum age in the jurisdiction where you reside), and in the event you are between the age of 13 (or equivalent minimum age in the jurisdiction where you reside) and the age of majority in the jurisdiction where you reside, that you will only use the Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. Any use or access to the Services by individuals under the age of 13 (or equivalent minimum age in the jurisdiction where you reside) is strictly prohibited and is a violation of these Terms. The Services are not available to any users previously prohibited from using the Services by Biopod.
(c) Customer Service. If you have any questions or concerns regarding the Products, the Services, or these Terms, please contact Biopod at firstname.lastname@example.org.
(d) Term and Termination. These Terms will remain in full force and effect so long as you continue to access or use the Services or Products, or until terminated in accordance with the provisions of these Terms. At any time, Biopod may (i) suspend or terminate your rights to access or use the Services, or (ii) terminate these Terms with respect to you if Biopod in good faith believes that you have used the Services in violation of these Terms, including any incorporated guidelines, terms or rules. If you transfer a Product to a new owner, your right to use the Services with respect to that Product automatically terminates, and the new owner will have no right to use the Product or Services under your Account (as described below) and will need to register for a separate Account with Biopod.
(e) Effect of Termination. Upon termination of these Terms, your Account and your right to use the Services will automatically terminate.
(a) Your Account. To use the Services, you must register for a user account (“Account”) and provide certain information about yourself as prompted by the applicable registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Services does not violate any Canadian, U.S. or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You agree to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Account, and to maintain your password securely to prevent others from gaining access without your permission. You agree to immediately notify Biopod of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. Biopod is not liable for any loss or damage arising from your failure to comply with the above requirements.
(b) The individual who creates an Account is the “Owner” of that Account and is the Owner of the Biopod Products associated with that Account. Individuals who are authorized to access an Owner’s Products and Services are “Authorized Users.” Authorized Users may have the ability to use the Services and monitor and control the Products. Authorized Users may also have the ability to view information (including personal information) and content across all of an Owner’s Products and Services with Biopod connections. Authorized Users are responsible for their own actions in connection with the Products and Services, but Owner also hereby agrees to be fully responsible for all actions taken by Authorized Users relating to the Owner’s Products, Services and Account. If you are an Owner who invites or enables an Authorized User, you acknowledge and agree that such Authorized User may subsequently invite or enable other Authorized Users with the same access and ability to use your Products and Services set out above. As a result, if you are an Owner, you should authorize only those individuals that you trust to access your Account, Products, and Services.
- Access to Services
(a) Access and Use. Subject to these Terms, Biopod grants you a non-transferable, non-exclusive, right (without the right to sublicense) to access and use the Services by (i) using the Web Apps in connection with, and solely for the purpose of, controlling and monitoring the Products you own or are authorized to control and monitor or otherwise accessing a service explicitly provided by Biopod for your use (the “Permitted Purpose”), and (ii) installing and using the Mobile Apps solely on your own handheld mobile device (e.g., iPhone, iPad, or Android smartphone) and solely for the Permitted Purpose.
(b) Automatic Software Updates. Biopod may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to terminate your Account and stop using the Services and the Product. If you do not terminate a previously created Account, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Services and the Product and you agree to promptly install any Updates Biopod provides. Your continued use of the Services and the Product is your agreement to these Terms with respect to the Services.
(d) Certain materials may be displayed or performed on the Services (including, but not limited to text, graphics, articles, photographs, video, images, and illustrations (“Content”). The Content may also include information that you and other users provide us in the course of using the Services (collectively, “User Submissions”), which we may use to provide, maintain and improve the Services. Some content may be visible to others. You are solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services, or that you contribute in any manner to the Services; you represent and warrant that you have all rights necessary to do so, in the manner in which you contribute it; and you license to Biopod all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to these Terms. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right. Biopod reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have breached the immediately preceding sentence), or for no reason at all.
(e) Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (i) you agree not to license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services and/or Products; (ii) you agree not to modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services and/or Products; (iii) you agree not to access the Products and/or Services in order to build a similar or competitive service; (iv) except as expressly stated herein, no part of the Products and/or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; (v) you agree not to upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, the Services, the Product, or any other system, device or property; (vi) you agree not to interfere with, disrupt, or attempt to gain unauthorized access to, the servers or networks connected to the Products and/or Services or violate the regulations, policies, or procedures of such networks; (vii) you agree not to access (or attempt to access) any of the Products and/or Services by means other than through the interface that is provided by Biopod; and (viii) you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) which may be contained in or displayed in connection with the Services. Any future release, update, or other addition to functionality of the Services shall be subject to these Terms.
(g) Security. Biopod cares about the integrity and security of your personal information. However, Biopod cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
(h) Modification. Biopod reserves the right, at any time, to modify, suspend, or discontinue the Services or any part thereof with or without notice. You agree that Biopod will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof.
(i) Access Outside Certain Countries. Although the Web Apps and Mobile Apps are accessible worldwide, the Products and Services provided or accessed through or on the Web Apps and Mobile Apps are not available to all persons or in all countries. If you choose to access the Web Apps and Mobile Apps from outside a country in which Biopod supports the Product and Services (“Target Country”), you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. You understand and accept that the Web Apps and Mobile Apps are not designed for use in a non-Target Country and some or all of the features of the Web Apps and Mobile Apps may not work or be appropriate for use in such a country. To the extent permissible by law, Biopod accepts no responsibility or liability for any damage or loss caused by your accessing or use of the Web Apps and Mobile Apps or Biopod Products in a non-Target Country. You will be bound by these Terms wherever you access or use the Services.
(j) Diagnostic and Usage Data. You agree that Biopod may collect, maintain, process and use diagnostic, technical, usage and related information, including but not limited to unique system or hardware identifiers, information about your Biopod device and application software, and peripherals, that is gathered periodically to provide and improve Biopod’s products and services, facilitate the provision of software updates, product support and other services to you (if any) related to the Biopod Software, to verify compliance with the Terms and to enable Biopod’s partners and third party developers to improve their software, hardware and services designed for use with Biopod products. Biopod may use this information, as long as it is collected in a form that does not personally identify you, for any purpose.
- Agreed Usage and Limitations Of Biopod Services
(a) Intended Use of Biopod Services. The Services are intended to be accessed and used for non-time-critical information and control of Biopod Products. While we aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond Biopod’s control, including Wi-Fi intermittency, service provider uptime, mobile notifications and carriers, among others. You acknowledge these limitations and agree that Biopod is not responsible for any damages allegedly caused by the failure or delay of the Services.
(b) No Life-Safety or Critical Uses of the Services. You acknowledge and agree that the Products and Services, whether standing alone or when interfaced with third-party products or services are not certified for emergency response. Biopod makes no warranty or representation that use of the Products or Services with any third-party product or service will affect or increase any level of safety. YOU UNDERSTAND THAT THE PRODUCTS AND SERVICES, WHETHER STANDING ALONE OR INTERFACED WITH THIRD-PARTY PRODUCTS OR SERVICES, ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM — BIOPOD WILL NOT DISPATCH ANY PERSON TO ANY LOCATION IN THE EVENT OF AN EMERGENCY. In addition, the Biopod Support contacts cannot be considered a lifesaving solution for any source of life or product used in connection with the Biopod Products and Services, and they are no substitute for emergency services. All life threatening and emergency events should be directed to the appropriate response services.
(c) Reliability of Notifications. You acknowledge that the Services, including remote access and mobile notifications, are not intended to be 100% reliable and 100% available. We cannot and do not guarantee that you will receive notifications in any given time or at all. YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICES FOR THE SAFETY OR SECURITY OF ANY FORM OF LIFE OR CRITICAL PURPOSES. MOBILE NOTIFICATIONS REGARDING YOUR BIOPOD PRODUCTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY – THEY ARE NOT A SUBSTITUTE FOR A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. You acknowledge that it is your responsibility to educate yourself on how to respond to an emergency and to respond according to the specifics of your situation.
(d) Temporary Suspension. The Services may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. Biopod does not offer any specific uptime guarantee for the Services.
(e) System Requirements. The Services will not be accessible without: (i) a working Wi-Fi network in your home that is positioned to communicate reliably with the Products; (ii) an Account; (iii) mobile clients such as a supported phone or tablet (required from some functionality); (iv) always-on broadband Internet access in your home with bandwidth sufficient to support the Products you use; and (v) other system elements that may be specified by Biopod. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met.
(f) The Services provide you information (“Product Information”) regarding the Products and their connection with other products and services. All Product Information is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date. In cases where it is critical, accessing Product Information through the Services is not a substitute for direct access of the information.
(g) All information publicly posted or privately transmitted through the Services is the sole responsibility of the person from which (or from whose account) such Content originated and Biopod will not be liable for any errors or omissions in any Content. Biopod cannot guarantee the identity of any other users with whom you may interact in the course of using the Services. Additionally, we cannot guarantee the authenticity of any data that users or merchants may provide about themselves. You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services.
(h) You warrant, represent and agree that you will not contribute any Content or otherwise use the Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) impersonates any person or entity, including without limitation any employee or representative of Biopod; (v) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program; (vi) jeopardizes the security of your Biopod Account or anyone else’s Account (such as allowing someone else to log in to the Services as you); (vii) attempts, in any manner, to obtain the password, account, or other security information from any other user; (viii) violates the security of any computer network, or cracks any passwords or security encryption codes; (ix) runs Maillist, Listserv, or any form of auto-responder or “spam” on the Services, or any processes that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); (x) copies or stores any significant portion of the Content; or (xi) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
(i) Data protection and privacy laws where you live may impose certain responsibilities on you and your use of the Products and Services. You agree that you (and not Biopod) are responsible for ensuring that you comply with any applicable laws when you use the Products and Services.
- Limitations Of Biopod Services Due to Third Parties.
(a) General. Biopod Services rely on or interoperate with third party products and services. These third party products and services are beyond Biopod’s control, but their operation may impact or be impacted by the use and reliability of the Biopod Services. You acknowledge and agree that: (i) the use and availability of the Services is dependent on third party product vendors and service providers, (ii) these third party products and services may not operate in a reliable manner 100% of the time, and they may impact the way that the Biopod Services operate, and (iii) Biopod is not responsible for damages and losses due to the operation of these third party products and services.
(b) Third Party Service Providers Used By Biopod. You acknowledge that Biopod uses third party service providers to enable some aspects of the Services – such as, for example, data storage, synchronization, communication, mobile device notifications through mobile operating system vendors and mobile carriers and a working Wi-Fi network with always-on broadband Internet Access with bandwith sufficient to support the Products you use. YOU AGREE NOT TO RELY ON THE SERVICES FOR THE SAFETY OF ANY LIFE FORM OR TIME-CRITICAL PURPOSES.
(d) Third Party Products and Services that Work With Biopod Services. Biopod may provide the opportunity for you to interface to Third Party Products and Services. You acknowledge that Third Party Products and Services that you connect to your account or interface with are not Biopod products and services and you acknowledge and agree that Biopod does not control, and that these Terms do not apply to, any Third Party Products and Services. Use of any Third Party Products and Services is governed by separate terms and conditions provided by the operator(s) of the applicable Third Party Products and Services. You acknowledge and agree that Biopod makes no representation or warranty about the operation, reliability, or safety of any Third Party Products or Services. Accordingly, Biopod is not responsible for your use of any Third Party Product or Service or any personal injury, death, property damage (including, without limitation, to your home), interruption of service, downtime, data loss, or other harm or losses arising from or relating to your use of any Third Party Products or Services. You should contact the Third Party with any questions about their Products and Services.
(e) App Stores. You acknowledge and agree that the availability of the Mobile Apps is dependent on the third party websites from which you download the Mobile Apps, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). You acknowledge that these Terms are between you and Biopod and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading Mobile Apps from it. You agree to comply with, and your license to use the Mobile Apps is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
(f) Authorized Users. Biopod is not responsible for any Authorized User’s behavior, or for any personal injury, death, property damage, or other harm or losses arising from or relating to their use of the Services.
(g) Release Regarding Third Parties. Biopod is not responsible for third parties or their products and services, including, without limitation, Third Party Products and Services, Equipment, ISPs, and Carriers. Biopod hereby disclaims and you hereby discharge, waive and release Biopod and its licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
- Ownership and Intellectual Property
(a) Biopod Property. You acknowledge that all intellectual property rights, including without limitation copyrights, patents, trademarks, and trade secrets, in the Product and Services (i.e., the Web Apps, and Mobile Apps) are owned by Biopod or its affiliates or our licensors. Your possession, access, and use of the Product and Services do not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. Biopod and its affiliates and licensors and suppliers reserve all rights not granted in these Terms. The Services are licensed to you, not sold, under these Terms.
You may only copy parts of the Services on to your own computer for your own personal use. You may not use the content of the Services in any other public or commercial way nor may you copy or incorporate any of the content of the Services into any other work, including your own web site without the written consent of Biopod. You must have a license from us before you can post or redistribute any portion of the Services. Other than with respect to User Submissions, Biopod retains full and complete title to all content on the Services, including any downloadable software and all data that accompanies it. You must not copy, modify or in any way reproduce or damage the structure or presentation of the Services or any content therein.
(b) Feedback. You may choose to, or Biopod may invite you to submit comments, suggestions, or ideas about the Products or Services, including how to improve the Products or Services (“Ideas”). By submitting any Ideas, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place Biopod under any fiduciary or other obligation. Biopod may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Biopod does not waive any rights to use similar or related ideas previously known to Biopod, developed by its employees, or obtained from other sources.
(c) User Submissions. You hereby grant us with a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicenseable and transferable right to access, display, or otherwise use your User Submissions (including all related intellectual property rights) solely in connection with providing you the Services and as directed by you. You also hereby do and shall grant each user of the Services a non-exclusive license to access and use your User Submissions through the Services and as permitted through the functionality of the Services and under these Terms. Furthermore, you understand that we retain the right to reformat, modify, create derivative works of, excerpt, and translate any User Submissions submitted by you. For clarity, the foregoing license grant to Biopod does not affect your ownership of or right to grant additional licenses to the material in your User Submissions, unless otherwise agreed in writing.
You agree to defend, indemnify and hold Biopod and its licensors, distributors and suppliers harmless from any damages, liabilities, claims or demands (including costs and attorneys’ fees) made by any third party due to or arising out of (i) your use and each Authorized User’s use of the Products or Services, (ii) your or your Authorized Users’ violation of these Terms, (iii) any User Submissions or Feedback you provide; or (iv) your or your Authorized Users’ violation of any law or the rights of any third party. Biopod reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Biopod and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Biopod’s prior written consent. Biopod will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
- Limited Warranty
(a) Limited Warranty. Biopod warrants to you that the Products will be free from defects in materials and workmanship under normal use for one (1) year from the original date of purchase by you (the “Warranty Period”). The Limited Warranty is not transferable by you. All subsequent purchasers acquire the Products “as is” without benefit of this Limited Warranty. Where you purchased the Products from Biopod’s website or other online vendors the date of purchase is the date of the purchase invoice issued to you by Biopod or such online vendors by email. Where you purchased the Products from an authorized reseller at a physical location, the date of purchase is the date of the invoice issued to you at the physical location.
(b) Defective Products. In the event Biopod determines that the Product is defective, Biopod may in its discretion:(i) repair the defective part of the Product free of charge with new or refurbished parts; or (ii) replace the defective Product with a comparable new or refurbished product. SECTION 8(B) IS NOT APPLICABLE TO RESIDENTS OF QUEBEC.
(c) Repair or Replacement. Where the Product is repaired or replaced during the Warranty Period, except as otherwise prohibited by applicable laws, the warranty for the repaired or replaced Product, as applicable, will expire upon the expiration of the original Warranty Period. Any warranty service or support under this Limited Warranty is conditioned upon your return of the Product, with free and clear title, to Biopod or its authorized service provider. Where there has been a replacement of the Product, the Product or its parts, as provided pursuant to the Limited Warranty, becomes your property and the Product being replaced becomes Biopod’s property. SECTION 8(C) IS NOT APPLICABLE TO RESIDENTS OF QUEBEC.
(d) Exclusions. The Limited Warranty does not apply:
- to normal wear and tear;
- if the Product or any its parts is opened, disassembled, or repaired by someone not authorized by Biopod;
- if the Product was not purchased from Biopod or its authorized retailers;
- to damages caused by misuse, moisture or liquids, proximity or exposure to heat, accident, abuse, neglect, misapplication, your failure to abide by the use, safety, and maintenance instructions contained in the packaging of the Product, including, without limitation, a failure to follow such instructions regarding use of the Product;
- to any equipment other than the Product;
- to malfunction or defects resulting from the use of the Product in conjunction with accessories, products, services or ancillary or peripheral equipment not expressly approved or provided by Biopod, and where it is determined by Biopod that such malfunction or defect is not the fault of the Product itself;
- to any software, whether or not supplied by Biopod; and
- to any ultraviolet lighting systems.
Biopod does not warrant that the operation of the Product or the Services will be uninterrupted or error-free.
(e) Returning the Product. Biopod is the provider of this Limited Warranty, and returns are not permitted unless requested by Biopod’s representatives at Biopod’s sole discretion. Biopod’s warranty contact information can be found at www.biopod.com. You may need to provide a proof of purchase of the Product, in the form of the purchase invoice sent to you by Biopod or an invoice from an authorized seller of the Product, to evidence that you are the original purchaser of the Product. In the event you return the Product to Biopod outside of the Warranty Period, Biopod’s standard repair terms and charges may apply. Biopod does not provide cash refunds for products purchased, but does provide warranty service according to the terms and conditions found at biopod.com/warranty. Biopod may limit the Limited Warranty to the country where Biopod or its authorized seller sold the Product to you. You may be responsible for shipping, handling, or other costs if you request warranty services. Please review the Product use, maintenance, and safety instructions contained in the packaging, as well as the user manual online at www.biopod.com. Returns, repairs, or replacements of parts and/or Products may be subject to shipping, handling, replacement and/or restocking fees.
(f) Data Recovery. You acknowledge and agree that Biopod will not be responsible for any data, software, applications, or information that may be damaged, lost, or destroyed during the course of evaluating, repairing, or replacing the Product. This Limited Warranty also does not cover backup, recovery, and reinstallation of your data on the Product. You should backup all data and applications on your device before returning it.
(g) Exclusive Remedies. The remedies in this Limited Warranty are the exclusive remedies provided to you under this Limited Warranty. To the extent permitted by applicable laws, this Limited Warranty is in lieu of all other warranties or conditions, express or implied. EXCEPT AS SET OUT IN THIS LIMITED WARRANTY AND AS PERMITTED BY APPLICABLE LAWS, BIOPOD SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, ENDORSEMENTS, AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE OR NON-INFRINGEMENT AND ANY IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS FOR A PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, DURABILITY, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. WHERE IMPLIED WARRANTIES CANNOT BE DISCLAIMED BY APPLICABLE LAW, SUCH IMPLIED WARRANTIES ARE LIMITED TO THE DURATION OF THIS LIMITED WARRANTY.
THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. SECTION 8 MAY NOT APPLICABLE TO RESIDENTS OF QUEBEC.
BIOPOD AND OUR LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BIOPOD OR THOUGH THE SERVICES SHALL CREATE ANY WARRANTY.
BIOPOD DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH OR IN CONNECTION WITH THE PRODUCTS OR SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, AND BIOPOD WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF SUCH PRODUCTS OR SERVICES.
WHEN YOU INSTALL, SETUP OR USE PRODUCTS AND SERVICES LIKE THOSE PROVIDED BY BIOPOD YOU ARE GIVEN THE OPPORTUNITY TO ALTER DEFAULTS OR CHOOSE PARTICULAR SETTINGS. THE CHOICES YOU MAKE CAN CAUSE DAMAGE OR LEAD TO NON-RECOMMENDED OPERATION OF YOUR CONNECTED EQUIPMENT OR SYSTEMS. YOU ASSUME ALL LIABILITY FOR SUCH DAMAGE WHEN YOU CHOOSE PARTICULAR SETTINGS OR SET OR ADJUST DEFAULTS.
BIOPOD MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND BIOPOD WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES. BIOPOD MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.
- Limitation of Liability
Nothing in these Terms and in particular within this “Limitation of Liability” clause shall attempt to exclude liability that cannot be excluded under applicable law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE LIMITED WARRANTY, IN NO EVENT WILL (A) BIOPOD BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA, LOST PROFITS, POWER USE OR LOSS OF LIFE ARISING FROM OR RELATING TO THE SERVICES OR THE PRODUCTS, EVEN IF BIOPOD KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) BIOPOD’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE SERVICES AND THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO BIOPOD OR BIOPOD’S AUTHORIZED RESELLER FOR THE SERVICES OR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. BIOPOD DISCLAIMS ALL LIABILITY OF ANY KIND OF BIOPOD’S LICENSORS AND SUPPLIERS. UNDER NO CIRCUMSTANCES WILL BIOPOD BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF OR EXPOSURE TO ANY CONTENT POSTED, ACCESSED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES.
YOU ACKNOWLEDGE AND AGREE THAT BIOPOD, ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, LICENSORS, SUPPLIERS, SERVICE PROVIDERS, RESELLERS, AND DISTRIBUTORS (COLLECTIVELY, “BIOPOD” IN THIS SECTION 9) WILL IN NO WAY BE LIABLE TO YOU FOR ANY GENERAL, PECUNIARY, NON-PECUNIARY, INDIRECT, ECONOMIC, SPECIAL, COMMERCIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, LOST DATA, LOSS OF OPPORTUNITY, AND DAMAGES CAUSED BY DELAYS OR A FAILURE TO REALIZE EXPECTED SAVINGS) ARISING FROM OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SERVICES OR THE PRODUCTS, EVEN IF SUCH PERSON/ENTITIES IS/ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
WHERE PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE AND AGREE THAT YOU WAIVE AND RELEASE BIOPOD OF ANY AND ALL LIABILITY FOR ANY LOSS, DAMAGE, NON-DELIVERY OR MISDIRECTED DELIVERY BY THIRD PARTY, EXPENSE OR INJURY, INCLUDING DEATH, WHICH YOU OR YOUR NEXT OF KIN MAY SUFFER RESULTING FROM YOUR PURCHASE AND USE OF THE SERVICES OR PRODUCTS DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT, BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE BY BIOPOD.
THE LIMITATIONS OF LIABILITY SET OUT IN THIS SECTION 9 ARE INTENDED TO APPLY AND DO APPLY TO ANY DAMAGES, LOSSES, OR LIABILITY OF ANY TYPE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) AND EVEN IF BIOPOD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 9 APPLY TO THE FULL EXTENT THEY ARE NOT PROHIBITED BY APPLICABLE LAW WITHOUT THE POSSIBILITY OF CONTRACTUAL WAIVER. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. SECTION 9 IS NOT APPLICABLE TO RESIDENTS OF QUEBEC.
- Fees and Payment
Certain Services may be provided for a fee. You shall pay all applicable fees in connection with the Services selected by you in accordance with the Terms of Sale. All fees or payments are non-refundable and any valid credit balances may be applied toward additional Biopod Goods or services at Biopod’s sole discretion.
11. Crowdfunding Pledges (Kickstarter, Indiegogo)
All terms and conditions stated herein shall extend to all Biopod pledges that were made on Kickstarter and / or Indiegogo. Crowdfunding Refund and Return Policy: Refunds and/or returns are not offered. Order fulfillment is based on product availability in your region. The original shipping charges billed in the crowdfunding campaigns were an estimate of “Domestic Shipping” only and may vary, and did not include duties or taxes, import freight, brokerage or handling fees. In the case that the actual shipping charges are higher than the originally billed amount, the original amount of shipping charges that were collected will be used as a deposit toward the actual charges. Any additional shipping costs must be paid to Biopod Systems Inc. prior to delivery.
12. Dispute Resolution and Arbitration
All disputes, controversies or claims arising out of or in connection with or in relation to these Terms or the breach thereof, including any and all disputes, claims or questions regarding: (i) the existence, validity, application, interpretation, performance, enforcement or termination of these Terms; (ii) any dispute, controversy or claim arising out of or relating to the negotiation, execution, interpretation, application or performance of these Terms; or (iii) any dispute, controversy or claim arising out of or relating to the design, manufacture, distribution, instruction, warning, performance or use of the Services and/or Products (collectively, the “Dispute”), will be solely and exclusively referred to, and finally resolved by, binding arbitration pursuant to the provisions of the Arbitration Act (Alberta) and any amendments thereto. Such arbitration shall be conducted pursuant to the International Chamber of Commerce Rules of Arbitration then in force (the “Arbitration Rules”). A single arbitrator shall be appointed by agreement of the parties to the arbitration (each a “Party” and collectively, the “Parties”), or, in default of agreement, such arbitrator will be appointed in accordance with the Arbitration Rules. The arbitration will be governed by the laws of the Province of Alberta and the laws of Canada as applicable therein. The arbitration will be seated and held in Calgary, Alberta and will be conducted in the English language. The arbitrator shall have jurisdiction to award costs of the arbitration, including attorney’s fees and disbursements and arbitrator fees and expenses. Any award and the determination of such arbitrator will be final, non-appealable and binding upon you and Biopod. You and Biopod waive any right of appeal to the fullest extent permitted by law. A judgment on the award of the arbitrator may be entered into any court having jurisdiction over the Party or Parties against whom an award may be issued and each of you and Biopod agrees to and hereby waives any defences against the enforceability and execution of any such judgment awarded by the arbitrator as contemplated in these Terms. Judgment on the award of an arbitrator may be entered by any court having jurisdiction over the person or property of the person against whom enforcement of the judgment is sought. Where arbitration is prohibited by applicable laws, you and Biopod hereby agree to the exclusive jurisdiction of the courts of the province of Alberta, Canada with respect to any Disputes relating to these Terms. The existence and content of the arbitral proceedings and any ruling or award shall be kept confidential by the Parties and members of the arbitral tribunal, except: (i) to the extent that disclosure may be required of a Party to fulfill a legal duty, protect or pursue a legal right, or enforce or challenge an award in bona fide legal proceedings before a state or provincial court or other judicial authority, (ii) with the consent of all the Parties, (iii) where needed for the presentation or preparation of a claim or defense in this arbitration, (iv) where such information is already in the public domain other than as a result of a breach of these Terms, (v) where such information is already within the possession of a Party, or (vi) by order of the arbitral tribunal upon application of a Party.
You hereby waive all rights to a trial by jury with respect to any claims and issues relating to or arising out of these Terms
(a) Changes to these Terms. Biopod reserves the right to make changes to these Terms. We will post notice of modifications to these Terms on this page. You should ensure that you have read and agree with our most recent Terms when you use the Services. Continued use of the Services following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the revised Terms.
(b) Governing Law. The courts in some countries will not apply law of the Province of Alberta to some types of disputes. If you reside in one of those countries, then where the laws of the Province of Alberta is excluded from applying, your country’s laws will apply to such disputes related to these terms. Otherwise, you agree that these Terms, and any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms or your use of the Products and Services shall be governed by the laws of the Province of Alberta without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the courts in the Province of Alberta for the purpose of litigating all such claims or disputes, unless such claim or dispute is required to be arbitrated as set forth in an above section.
(c) Protection of Confidentiality and Intellectual Property Rights. Notwithstanding the foregoing, Biopod may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
(d) Entire Agreement/Severability. These Terms constitute the entire agreement between you and Biopod regarding the use of the Services. Any failure by Biopod to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Neither party is an agent or partner of the other party.
(e) Survivability. The obligations in Sections 3(d), Section 3(e), 4, 5, 6, 7, 8, 9, and 11 will survive any expiration or termination of these Terms.
(f) Assignment. These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without Biopod’s prior written consent. These Terms may be assigned by Biopod without restriction. These Terms are binding upon any permitted assignee.
(g) Notifications. Biopod may provide notifications to you as required by law or for marketing or other purposes via (at its option) email to the primary email associated with your Account or mobile notifications. Biopod is not responsible for any automatic filtering you or your network provider may apply to email notifications.
(h) Copyright/Trademark Information. All trademarks, logos, and service marks (“Marks”) displayed on the Services are the property of Biopod or of their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of Biopod or such respective holders. Biopod reserves the right to alter product and services offerings, specifications, and pricing at any time without notice, and is not responsible for typographical or graphical errors that may appear in this or in related documents.