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Please read these Terms and Conditions of Sale (the “Terms”) carefully because they govern the purchase of any products (“Products”) you buy from Whyd, Inc. (“Whyd,” “us” or “we”), unless you have signed a separate written agreement with us that supersedes these Terms. Any software installed in our Products is licensed to you, not sold. You may only use this software for its normal, intended use with our Products and in accordance with the Software License section below. When we say “sell” and “purchase” in these Terms, we mean “sell” and “purchase” only with respect to the non-software elements of the Product. These Terms apply whether or not they are included with the Products sold hereunder.
If you want to purchase Products from us, simply click on the “order now” button and follow the directions on-screen. Once you place your order, we’ll email you with an order confirmation (“Order Confirmation”) that indicates that we have accepted your order. We’re not bound to sell you any Product until we have accepted and processed your payment. With your Order Confirmation, we’ll confirm the quantity of Products you purchased, their price, and an estimated shipment date (“Estimated Shipment Date”). Our acceptance of your order is expressly conditioned on your unconditional acceptance of these Terms, even if you communicate with us otherwise. We do not accept any changes to, or rejections of, these Terms that you may communicate to us in any form and all such terms and conditions will be null and of no effect. The terms of our Warranty program apply to any purchase and are incorporated herein by reference.
You understand and agree that you assume all risk and liability, and we have no obligation or liability whatsoever to you or anyone else for any of the following (“Disclaimed Activities”):
- use of the Product for High-Risk Activities;
- use of the Product other than in accordance with our published specifications;
- modifications, alterations, adjustments or repairs to the Product made by a party other than one we authorize;
- failure by you or a third party to comply with environmental and storage requirements for the Product specified by us, including, without limitation, temperature or humidity ranges;
- damage from external causes such as dirt, sand, power surges, or improper usage of any electrical source;
- use of the Product in combination with any third-party devices or products that we have not provided or recommended to you;
- any damage to property or persons caused by your use of the Product that is not caused by material defect, including your failure to understand the functionalities of the Product;
- leaving the Product in direct sunlight for long periods;
- allowing the Product to land on unstable surfaces or dangerous terrain;
- using the Product in inclement weather;
- failure to maintain line-of-sight with the Product when using it;
- attempting to charge the Product with any power source other than the one provided by Whyd;
- attempting to affix anything to the Product;
- failure to purchase any insurance required by law to operate the Product in your area;
- failure to determine the suitability of the Product for your intended use;
- failing to make sure that any other person who uses the Product also complies with these terms and any other guidance we provide you, whether this guidance is included in writing with the Product or made available on our website;
- any continued use of the Product after you detect any material defect, including erratic responses to user input;
- failure to adhere to advisories relevant laws and local government rules; and
- any other improper use of the Product.
You agree to comply with all applicable laws in connection with your use of the Product, local regulations and advisories. You understand and agree that the Product is not designed or intended for use in any application or hazardous environment that requires fail-safe performance, where the failure or inaccuracy of the Product might result in or cause death, personal injury, collision, or significant environmental damages (“High-Risk Activities”). High-Risk Activities include without limitation operation near any animal, power line, cellular or other radiofrequency tower, mining area, any other electromagnetic interference environment, obstacle, airport, airfield or industrial facility or area. The Products are not toys and improper operation may cause serious injury and property damage. You agree to use precautions when using your Product.
You may cancel your order any time before your purchased Product ships and, if your payment has already been processed, receive a full refund.
Shipment and Delivery
We may provide a single shipping method and carrier, or multiple methods and carriers, for Product delivery, at our sole discretion. You will be responsible for all freight, packing, insurance and other shipping-related costs and expenses, and these will be noted on your order screen before you make your purchase. Once the Product is sent to the carrier, ownership of the Product and the risk of that Product’s loss passes to you.
You understand that all scheduled shipment dates and Estimated Shipment Dates are estimates only. We’ll make reasonable efforts to meet the scheduled shipment dates, but in no event will we be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery, nor will the carrier be deemed our agent. If you purchase multiple Products, we may send you your Products in installments and charge you separately for each installment. We have the right to allocate our available inventory of the Products among other purchasers in such manner as we see fit. If we’re not able to charge your payment method or you fail to pay for your purchase, we have the right to delay or suspend shipment of the Products.
Prices and Taxes
The prices for the Products will be as specified during checkout and in your Order Confirmation. Prices are stated in U.S. dollars with a separate subtotal for all typically applicable sales tax for purchases made within the United States. You agree to pay the applicable sales tax relating to the Products you purchase from us. You are also responsible for any other taxes imposed by you in connection with your purchase and use of the Product.
You agree to defend, indemnify, and hold Whyd, its subsidiaries and affiliates, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected to your violation of these Terms and your participation in Disclaimed Activities, or for liabilities, interest, penalties or fees assessed against us arising from any failure by you to pay any required taxes.
Limitations of Liability
SUBJECT TO OUR WARRANTY PROGRAM, THE PRODUCT IS PROVIDED ON AN “AS IS” BASIS AND YOUR USE OF THE PRODUCT IS AT YOUR OWN RISK, AND IN NO EVENT WILL WHYD 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 WHYD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. YOU AND WHYD 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 WHYD 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 WHYD 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.
Subject to your compliance with these Terms, Whyd grants you a limited non-exclusive, non-transferable, non-sublicenseable license to use the software in the Product (the “Software”), as part of your use of the Product for your own personal, non-commercial purposes and for no other purposes. You may not (i) copy, modify or create derivative works based on the Software; (ii) distribute, transfer, sublicense, lease, lend or rent the Software to any third party; (iii) reverse engineer, decompile or disassemble the Software; or (iv) make the functionality of the Software available to multiple users through any means. Whyd reserves all rights in and to the Software not expressly granted to you under these Terms. All Software is protected by U.S. copyright law and international treaties.
All software contained in the Products and any related documentation are “commercial items” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. To the extent that the Products are being acquired by or on behalf of the U.S. Government then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the software and any related documentation will be only those specified in these Terms.
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
Agreement to Arbitrate For any dispute with Whyd, you agree to first contact us at firstname.lastname@example.org (mailto:email@example.com) and attempt to resolve the dispute with us informally. In the unlikely event that Whyd has not been able to resolve a dispute it has with you after thirty (30) days, you and Whyd agree that any dispute, claim or controversy arising out of or relating to these Terms or the use of the Product (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right:
- (i) to bring an individual action in small claims court and
- (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”);
- and (iii) you retain the right to litigate any Dispute other than an IP Protection Action by providing Whyd with written notice of your desire to do so by email or regular mail at our contact information at the bottom of these Terms within thirty (30) days following the date you first accept these Terms (such notice, an “Arbitration Opt-out Notice”).
If you don’t provide Whyd with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above.
The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Whyd with an Arbitration Opt-out Notice, will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Whyd with an Arbitration Opt-out Notice, you acknowledge and agree that you and Whyd are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Whyd otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
Arbitration Rules The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at https://www.adr.org/aaa/faces/rules/searchrules (https://www.lily.camera/terms/%E2%80%9Chttps://www.adr.org/aaa/faces/rules/searchrules%22) or by calling the AAA at 1-800-778-7879). The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration Process A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at https://www.adr.org/aaa/faces/services/fileacase/forms). The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure Unless you and Whyd otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Whyd submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Whyd will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Fees Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Whyd will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes If Whyd changes this “Dispute Resolution” section after the date on which you placed your order for a Product, you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Whyd’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Whyd in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
These Terms constitute the entire and exclusive understanding and agreement between Whyd and you regarding the purchase of the Product, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Whyd and you regarding such a purchase. 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.
You may not assign or transfer these Terms, by operation of law or otherwise, without Whyd prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Whyd may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Whyd under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to whyd.com. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Whyd’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Whyd. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms, please contact Whyd by any of the following methods: