PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT ORDER/KEEP YOUR IDKEY DEVICE.
These Terms of Sale (“Agreement”) apply to your purchase of the IDKEY device (“IDKEY Device”) from Sonavation, Inc. (“Sonavation”) on the IDKEY.com or Sonavation.com website (each such website and any successor thereto, a “Sonavation Website”). By placing your order for the IDKEY Device, you accept and are bound to the terms of this Agreement. If you have placed an order but do not wish to be subject to this Agreement, you must return your purchase in accordance with the return policy. Such purchase does not include any associated or embedded software, which shall be subject to a license between You and Sonavation.
1. Orders. You acknowledge and agree that by placing an order for the IDKEY Device through a Sonavation Website, you are placing a legally binding offer to purchase the IDKEY Device subject to this Agreement, and your offer is subject to Sonavation’s subsequent acceptance. Sonavation’s acceptance of your order only occurs if and when Sonavation has both (a) dispatched your IDKEY Device order and (b) received payment of the purchase price of your order through settlement of funds via your provided credit card, credit card or other agreed upon terms of payment. Any order confirmation you receive from Sonavation merely constitutes an acknowledgment of Sonavation’s receipt of your offer and will not constitute an acceptance of your offer. Furthermore, Sonavation may, in its sole discretion, cancel your order. If Sonavation cancels an order after you have already been billed, Sonavation will refund the billed amount.
2. Delivery. Any shipping or delivery dates provided by Sonavation are estimates only, and Sonavation will have no liability if any IDKEY Device units ordered by you are not shipped or delivered on or before such dates. Title to IDKEY Device units ordered by you passes to you upon shipment to you. Loss or damage that occurs during shipping by a carrier selected by Sonavation is Sonavation’s responsibility; loss or damage that occurs during shipping by a carrier selected by you, or after delivery to you, is your responsibility.
3. Returns. You hereby agree to the terms of Sonavation’s return policy. You must contact Sonavation directly before you attempt to return any qualifying IDKEY Device unit to obtain a Return Material Authorization Number for you to include with your return. You must return each qualifying IDKEY Device unit to Sonavation in its original or equivalent packaging. You are responsible for risk of loss, shipping and handling fees for returning any IDKEY Device units. If you fail to follow the return instructions and policies provided by Sonavation, Sonavation is not responsible for IDKEY Device units that are lost, damaged, modified or otherwise processed for disposal or resale.
4. Limited hardware warranty. You hereby agree to the terms of Sonavation’s limited hardware warranty found at www.IDKEY.com/limited-warranty.
5. Software license. You hereby agree to the terms of the IDKEY Software License Agreement found at www.IDKEY.com/software-license.
6. Limitation of Liability. SONAVATION DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR THE IDKEY DEVICE NOT BEING AVAILABLE FOR USE, LOST PROFITS, LOSS OF BUSINESS OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, OR THE PROVISION OF SERVICES AND SUPPORT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SONAVATION WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. YOU AGREE THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF THE IDKEY DEVICE, SONAVATION IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AMOUNT INVOICED FOR THE APPLICABLE IDKEY DEVICE. SOME JURISDICTIONS MAY NOT ENFORCE ALL OF THESE LIMITATIONS, AND ONLY THE LIMITATIONS THAT ARE LAWFULLY APPLIED TO YOU IN YOUR JURISDICTION WILL APPLY.
7. Not for resale or export. You agree to comply with all applicable laws and regulations of the various states and of the United States. You agree and represent that you are buying for your own internal use only, and not for resale or export. The IDKEY Device, which may include technology and software, is subject to U.S. export laws as well as the laws of the country where it is delivered or used. The IDKEY Device may not be sold, leased, or transferred to restricted countries, restricted end-users, or for restricted end-uses. You agree that the IDKEY Device purchased from Sonavation will not to be used for activities related to weapons of mass destruction, including activities related to the design, development, production or use of nuclear materials, nuclear facilities, or nuclear weapons, or chemical or biological weapons. You further agree that you will not sell, lease, or otherwise transfer the IDKEY Device to end-users engaged in these activities.
8. Governing law. THE PARTIES AGREE THAT THIS AGREEMENT, ANY SALES THERE UNDER, OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN YOU AND SONAVATION arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this agreement, Sonavation’s advertising, or any related purchase SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO CONFLICTS OF LAW.
9. Dispute resolution and binding arbitration. YOU AND SONAVATION 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, SUCH AS ACCESS TO DISCOVERY, 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 SONAVATION, its agents, employees, principals, successors, assigns, affiliates (collectively for purposes of this paragraph, “Sonavation”) arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), Sonavation’s advertising, or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (AAA) or JAMS. Arbitration proceedings shall be governed by this provision and the applicable procedures of the selected arbitration administrator, including any applicable procedures for consumer-related disputes, in effect at the time the claim is filed. Consumer claimants (individuals whose transaction is intended for personal, family, or household use) may elect to pursue their claims in small-claims court rather than arbitration. The arbitration or small-claims court proceeding will be limited solely to the individual dispute or controversy between you and Sonavation.
You agree to arbitration on an individual basis. In any dispute, NEITHER YOU NOR SONAVATION SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER SONAVATION CUSTOMERS, OR ARBITRATE ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration).
The arbitrator shall be empowered to grant whatever relief would be available in court under law or in equity. This transaction shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (FAA). Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. Sonavation will be responsible for paying any individual consumer’s arbitration fees. If you prevail on any claim that affords the prevailing party attorneys’ fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law. For information on AAA or JAMS, contact the following: American Arbitration Association, (800) 778-7879, www.adr.org; JAMS, (800) 352-5267, www.jamsadr.com.