Terms of Sale
Counterpace Terms of Sale
Effective Date: May 15, 2018
These terms of sale (“Terms”) apply to all orders accepted by Pulson, Inc. (“Pulson”) for the sale of its Counterpace guidance system products (“Products”), except in the case that you and Pulson have executed a written agreement that expressly supersedes these Terms. To the extent the Products contain or consist of software in any form (“Software”), such Software is licensed to you, not sold, and only licensed in accordance with the end user license agreement included with such Software. Terms such as “sell” and “purchase”, as used in these Terms, apply only to the extent the Products consist of items other than Software.
By placing an order through the Pulson Store, you agree that: (i) any Payment Method information supplied by you is true and complete; and (ii) you will pay the applicable price listed, as well as any shipping and handling charges and applicable taxes. Products purchased by you are for personal or gift use and not for commercial use.
Prices listed through the Pulson Store are stated in U.S. dollars, and do not include any applicable taxes, which will be communicated to you before you place an order. Some shipping methods will, if chosen, incur shipping and handling charges which will be communicated to you before you place an order. You agree to pay such taxes and charges to Pulson. You agree to indemnify and hold Pulson harmless from and against any liabilities, interest, penalties or fees assessed against Pulson arising from your failure to pay any such taxes. All Product prices are subject to change at any time. Pulson can withdraw Products from the Pulson Store at any time and for any reason. If you are paying for your order with an international credit card, your bank or credit card issuer may charge you foreign conversion charges and fees, which may increase the overall cost of your purchase.
ACCEPTANCE AND FULFILLMENT
All orders are subject to acceptance by Pulson. After you place an order, you will receive an email from Pulson confirming that Pulson has received it. Acceptance of your order will occur upon your receipt of another email from Pulson containing a shipping confirmation. If an order is on back order, we’ll send you an email indicating that this is the case, followed by another email when the items in question are in stock containing a shipping confirmation. Pulson reserves the right not to accept your order for any reason or no reason. Pulson reserves the right to restrict multiple quantities of a Product being shipped to any one customer or postal address.
Purchases made through the Pulson Store are intended for end users only, and are not authorized for resale. Pulson reserves the right to refuse or cancel your order if we suspect you are purchasing products for resale.
SHIPPING AND DELIVERY
Pulson will ship only to addresses in the U.S. Pulson will pack the Products in accordance with its standard practices. You may be able to choose the method of shipment and timing of delivery for Products ordered, and may be charged shipping and handling charges accordingly. Title to the Products (except to the extent that the Products consist of Software) and risk of loss will pass to you upon Pulson’s delivery of the Products to the carrier. You acknowledge that all scheduled shipment dates are estimates only. Pulson will make reasonable efforts to meet the scheduled shipment dates, but in no event will Pulson be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery.
If you are unsatisfied with any Product purchased from the Pulson Store for any reason, you will have sixty (60) days from the date of purchase to request a partial refund. Refunds are only given on Products returned in “like new” condition and all returns are subject to a $20 charge for restocking and replacement of the chest strap. Extra chest straps purchased in the Pulson Store may not be returned. For full details on the return process, please contact us at firstname.lastname@example.org.
LIMITED PRODUCT WARRANTY
Pulson warrants to the original purchaser that your Product shall be free from defects in materials and workmanship under normal use for a period of one (1) year from the date of purchase. For full details on warranty service, please contact us at email@example.com.
You acknowledge that you have verified the compatibility of the Products you are purchasing with other required equipment (e.g., ensuring that your mobile device and/or operating system is compatible with the Product). You are solely responsible for determining the compatibility of the Products with other equipment, and you accept that lack of compatibility is not a valid claim under the warranty provided with your Products and does not otherwise constitute a basis for receiving a refund after the 60 day refund policy identified above.
LIMITATIONS ON LIABILITY
IN NO EVENT WILL PULSON BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, USE, PROFITS, DATA, OR GOODWILL) OR COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS OR THE PURCHASE, SALE, USE, OPERATION OR PERFORMANCE OF THE PRODUCTS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT PULSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. PULSON AND YOU HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL PULSON’S LIABILITY TO YOU ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE ACTUAL AMOUNT PAID TO PULSON BY YOU FOR THE PRODUCT THAT GIVES RISE TO THE CLAIM. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
You agree that any dispute between you and Pulson arising out of or relating to these Terms, or any other Pulson products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.
The Terms and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles.
INFORMAL DISPUTE RESOLUTION
We want to address your concerns without needing a formal legal case. Before filing a claim against Pulson, you agree to try to resolve the Dispute informally by contacting firstname.lastname@example.org. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or Pulson may bring a formal proceeding.
WE BOTH AGREE TO ARBITRATE
You and Pulson agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
OPT-OUT OF AGREEMENT TO ARBITRATE
You can decline this agreement to arbitrate by contacting email@example.com within 30 days of first accepting these Terms and stating that you (include your first and last name) decline this arbitration agreement.
The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, Palo Alto, California, or any other location we agree to.
The AAA rules will govern payment of all arbitration fees. Pulson will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
EXCEPTIONS TO AGREEMENT TO ARBITRATE
Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Pulson Products or services, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
NO CLASS ACTIONS
You may only resolve Disputes with Pulson on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under our agreement.
JUDICIAL FORUM FOR DISPUTES
In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Pulson agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Santa Clara County, California. Both you and Pulson consent to venue and personal jurisdiction there. You and Pulson both agree to waive all rights to a jury trial.
LIMITATION ON CLAIMS
Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Pulson Products must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
The parties disclaim application of the United Nations Convention on Contracts for the International Sale of Goods.
You may not assign or transfer these Terms, or any order accepted by Pulson hereunder, in whole or in part, by operation of law or otherwise, without Pulson’s express prior written consent. Any attempt to do so, without Pulson’s consent, will be null and of no effect. Pulson may freely assign these Terms.
Pulson will not be responsible for any failure or delay in its performance under these Terms due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or acts of God.
The failure by Pulson to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision. If, for any reason, a court of competent jurisdiction finds any portion of any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
These Terms constitute the complete and exclusive agreement between Pulson and you regarding its subject matter and supersede all prior or contemporaneous quotations, agreements, communications or understandings, whether written or oral, relating to its subject matter. Any waiver, modification or amendment of any provision of these Terms will be effective only if in writing and signed by duly authorized representatives of each party.
You will not export or re-export, directly or indirectly, the Products, or any technical information related thereto, or any direct products thereof, to any destination or person prohibited or restricted by the export control laws and regulations of the United States, without the prior authorization from the appropriate governmental authorities.
All notices required or permitted to be given under these Terms will be in writing and will be deemed given: (i) upon actual delivery, if made by personal service; (ii) three (3) days after mailing, if made by U.S. certified or registered mail; and (iii) one (1) business day after delivery to the courier or overnight delivery service, if made by courier or overnight delivery service. All notices will be addressed to such address as the party who is to receive the notice so designates by written notice to the other.
Pulson’s address for notice is:
attn.: Legal Notice
560 Minton Lane
Mt. View, CA 94041