Terms of Sale

Date of Last Update: November 14, 2016

These terms of sale (the “Terms”) apply to all orders accepted by Activbody, Inc. (“Activbody”) for the sale of its personal fitness and electronic body monitoring products, including its Activ5 products (the “Products”), except in the case that you and Activbody have executed a written agreement that supersedes these Terms.  To the extent the Products contain or consist of software in any form (“Product Software”), such Product Software is licensed to you, not sold, and only in accordance with the section below entitled “Software License” and the Activbody Product Software License Agreement.  Each mobile software application (“Application Software”) that can be used with the Products is licensed to you, not sold, in accordance with its Application Software license.  Terms such as “sell” and “purchase,” as used in these Terms, apply only to the extent the Products consist of items other than Product Software and Application Software.

ORDERING FROM THE ACTIV5 STORE

Orders

You can browse and place orders for our Products through, activ5.wpengine.com (the “Activ5 Store”).  We will ask you for your name, phone number, e-mail address, shipping and billing address and other information so we can fulfill your order.  When you place an order, Activbody’s third-party payment service provider will collect your credit card details and charge your credit card account in connection with the order, and you agree to make all applicable payments in connection with any order placed by you.  Activbody does not view or store your credit card information.  We store your shipping address so we can process your order through our fulfillment partner.  If you are logged into your Activbody account when you purchase something from the Activ5 Store, we associate that order with your Activbody account.  For more information on Activbody’s data use practices please see the Activbody’s Privacy Policy.

By placing an order through the Activ5 Store, you agree that: (i) any credit card 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.

Pricing

Activbody can withdraw Products from the Activ5 Store at any time and for any reason. Prices listed through the Activ5 Store are stated in U.S. dollars, and do not include any shipping and handling charges or applicable taxes.  All shipping and handling charges and taxes will be communicated to you before you place an order and you are responsible for paying such charges and taxes to Activbody.  You agree to indemnify and hold Activbody harmless from and against any liabilities, interest, penalties or fees assessed against Activbody arising from your failure to pay any such taxes and charges.  All Product prices are subject to change at any time, in our sole discretion.

Acceptance and Fulfillment

All orders are subject to acceptance by Activbody.  After you place an order, you will receive an email from Activbody confirming that Activbody has received it.  Acceptance of your order will occur upon your receipt of another email from Activbody containing a shipping confirmation, tracking number and carrier information.  If an order is on back order, we will send you an email indicating that this is the case, followed by another email when the items in question are back in stock, containing a shipping confirmation, tracking number and carrier information.  Activbody, in its sole discretion, reserves the right not to accept your order for any reason or no reason. Activbody reserves the right to restrict multiple quantities of a Product being shipped to any one customer or postal address.

Resale

Purchases made through the Activ5 Store are intended for end users only, and are not authorized for resale.

Shipping and Delivery

Activbody will pack the Products in accordance with its standard practices.  You can choose the method of shipment and timing of delivery for Products ordered, and will be charged shipping and handling charges accordingly.  Title to the Products (except to the extent that the Products consist of Product Software) and risk of loss will pass to you upon Activbody’s delivery of the Products to the shipping carrier.  You acknowledge that all scheduled shipment dates are estimates only. Activbody will make reasonable efforts to meet the scheduled shipment dates, but in no event will Activbody be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery.

Additional Terms – Preorders

Low Price Guarantee.  If you pre-order any product, and if the price drops before the release date, you will be charged the lower price.

Payment Processing.  Your credit card will be charged only when your order is processed.  In some cases, we will process your order and authorize your credit card up to 10 days before the release of the Product.  This allows us to get the product to you faster.

Availability.  The manufacturer may limit the amount of Product initially available.  If this happens, we will process the online orders in the order in which they were received.

Delivery.  Orders containing both pre-orders and in-stock merchandise will be broken into separate shipping groups.  Each group will be shipped as soon as the merchandise becomes available.  Handling charges will apply to each shipping group independently.

In an effort to ship pre-orders as quickly as possible, sometimes we use external resources to “drop ship” merchandise to you directly from the source.  This eliminates the time it takes to ship product to our warehouse before shipping it to you.  Due to the tight time constraints, some orders will not make it into our drop ship process.  Those orders are shipped directly from us, usually on the following business day.

Some of the order types that will typically miss our drop ship process are:

  • Pre-orders placed too close to the release date (cut-off dates are normally three or four days in advance of the ship date).
  • PO. Box, APO/FPO, and Value shipping.
  • Pre-orders that fail our credit authorization process.

Pre-order Release Dates.  We always strive to post the best release date information available at the time of our posting of Products.

Promotional Items

From time to time, Activbody will offer one or more special promotional items with an order.  Due to limited availability, these items are only available while supplies last.

RETURN POLICY

If you are unsatisfied with any Product purchased from the Activ5 Store for any reason, you will have thirty (30) days from the date of purchase to request a full refund.  For full details on the return process, please see activ5.wpengine.com.

LIMITED PRODUCT WARRANTY

Activbody 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 the Limited Warranty, please see activ5.wpengine.com.

COMPATIBILITY

You acknowledge that you have verified the compatibility of the Products you are purchasing with other required equipment (e.g., ensuring that your computers, mobile devices and/or operating systems are 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 the Products you purchased and does not otherwise constitute a basis for receiving a refund after the expiration of the 30 day refund policy identified above.

LIMITATIONS ON LIABILITY

IN NO EVENT WILL ACTIVBODY 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 ACTIVBODY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.  ACTIVBODY 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 ACTIVBODY’S LIABILITY TO YOU ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS AND PURCHASE OF PRODUCTS, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE ACTUAL AMOUNT PAID TO ACTIVBODY 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.

SOFTWARE LICENSE

Activbody grants to you a non-exclusive, non-transferable and non-sublicensable license to use the Product Software, in executable form, solely as embedded in the Products, solely for your individual, non-commercial use.  You may not copy or modify the Product Software.  You acknowledge and agree that the Product Software contains trade secrets and copyrighted materials of Activbody, and, in order to protect such trade secrets and copyrights, you agree not to disassemble, decompile or reverse engineer the Product Software nor permit any third party to do so.  You further acknowledge and agree that you will not copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit or broadcast the Product Software.  Activbody reserves all rights and licenses in and to the Product Software not expressly granted to you under these Terms or any software license.

By using your Product you are agreeing to be bound by the Activbody Product Software License Agreement.  You can read or download a full copy of the Activbody Product Software License Agreement at activ5.wpengine.com.

Each Application Software that can be used with the Products is licensed to you, not sold, in accordance with a separate application software license.

DISPUTE RESOLUTION

You agree that any dispute between you and Activbody arising out of or relating to these Terms, the Products or any other Activbody products, devices or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.

Governing Law:  These 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 the need of a formal legal case.  Before filing a claim against Activbody, you agree to try to resolve the Dispute informally by contacting service@activbody.com.  We will try to resolve the Dispute informally by contacting you.  If a dispute is not resolved within 30 days after submission, you or Activbody may bring a formal proceeding.

We Both Agree To Arbitrate:  You and Activbody 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 service@activbody.com within 30 days of first accepting these Terms and stating that you (include your first and last name) decline this arbitration agreement.

Arbitration Procedures:  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 Orange County, California, or any other location we agree to.

Arbitration Fees:  The AAA rules will govern payment of all arbitration fees.  Activbody will pay all arbitration fees for claims less than $25,000.  Activbody 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 you or Activbody may assert claims, if they qualify, in small claims court in Orange County, California.  Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Products, Activbody devices 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 Activbody 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 are not allowed under our agreement and these Terms.

Judicial Forum for Disputes:  In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Activbody agree that any judicial proceeding will be brought in the federal or state courts of Orange County, California.  Both you and Activbody consent to venue and personal jurisdiction there.  We both agree to waive our right 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 purchase and use of the Products, Activbody devices or services 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.

GENERAL PROVISIONS

The parties expressly 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 Activbody hereunder, in whole or in part, by operation of law or otherwise, without Activbody’s express prior written consent.  Any attempt to do so, without Activbody’s consent, will be null and of no effect. Activbody may freely assign these Terms.

Activbody 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 Activbody 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 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 Activbody and you regarding its subject matter and supersedes 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; (iii) one (1) business day after delivery to the courier or overnight delivery service, if made by courier or overnight delivery service; and (iv) upon receipt if sent via email. 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.