Last Updated:November 1, 2020
Your access to and use of the Services (as defined herein) is conditioned upon your acceptance of and compliance with these Terms. By accessing or using the Services, you agree to be bound by these Terms. If you do not agree with any of the Terms, you do not have the right or permission to use or access the Services. These Terms also apply to other users and visitors of your Services.
These terms contain mandatory arbitration of disputes provisions in the “Arbitration & class action waiver” section below, which require the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions.
BY CLICKING THE “AGREE” BUTTON FOLLOWING THESE TERMS, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE TERMS; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THE TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE WEBSITE OR DISPENSER OR DOWNLOAD THE APPLICATION AND DELETE ANY COPIES OF THE APPLICATION FROM YOUR MOBILE DEVICE.
- Intended Use
The Services are intended to be used for the purpose of in-home medication dispensing and medication management assistance for you and any family member, friend, healthcare aide, or other trusted individual assisting you with your medication management (“Pria Contact”) that you choose to allow to have access to your account. The Company is not a medical provider and the Services do not provide any medical advice or any medical services nor are the Services meant to diagnose or treat any condition. The Dispenser is intended for use by one individual only. The Dispenser solely relies on medication information provided by you and does not prescribe or encourage the use of any medications. Do not use the Services as a substitute for professional healthcare. Use of the Services does not create any provider or doctor-patient relationship. You understand and agree that the information provided herein and by and through the use of and access to the Services is intended for informational purposes only. If you rely on any information provided by the Company or the Services, you do so at your own risk.
Consult your professional healthcare provider before commencing or terminating the use of any medication or course of treatment. Do not use the Services for medical emergencies. If you experience a medical emergency, immediately call 911.
- Dispenser Use
The Dispenser must be operated in accordance with its user guide at all times. It is solely your responsibility to ensure the type, quantity and dosage of the loaded medication is accurate and as prescribed. Retain all prescriptions, medication containers, and medication information in a safe, accessible location after loading the Dispenser.
The Dispenser must be stored in a safe and secure location at all times. You are solely responsible for any unauthorized access to the Dispenser and your medications.
The Dispenser may comprise, interface, inter-operate, link or be delivered with, or include data, software, hardware or other technology that is owned by the Company.
- Account Creation & Authorization
In order to access and use the Services, you will be required to create an account with a unique username and password. When you create an account for access to and use of the Services, you guarantee that the information you provide is accurate, current and complete at all times. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your account with regard to the Services. Your creation and use of your account must only be done in a manner that complies with all applicable laws. If your account or use of the Services is contrary to or prohibited by any law, your use is unauthorized and strictly prohibited.
Your account and use of the Services is for your own personal, non-commercial use and not for the benefit of any third party. You are solely responsible for maintaining the confidentiality of your account and password, including but not limited to restriction of access to the Dispenser, Application, Website and any electronic means (i.e. computer, tablet, etc.) by which you access the Application or Website. You accept all responsibility and liability for all activity that takes place on your account under your credentials, regardless of whether your password is to access the Services or a third-party provider. You must notify Company immediately in the event you become aware of or suspect any breach of security or unauthorized use of your account.
You alone may authorize a Pria Contact and assume responsibility for correctly identifying each Pria Contact. By so authorizing a Pria Contact, you agree to allow the Pria Contact to access your account and subscription and contact support on your behalf.
You may not use any username that is or infers the name or identity of another person or entity that is not lawfully available to use, a name or trademark that is subject to any rights of another person or entity other than you, without appropriate authorization. You may not use a username that is offensive, vulgar or obscene.
Company reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in its sole discretion.
By creating an account for the Services, you agree to receive communication by telephone, electronic mail or SMS text message from Company or providers of the Services which may include newsletters, marketing or promotional materials, and other information. You may however opt out of receiving any of these marketing or promotional communications by following the unsubscribe link or alternate instructions provided in any email we send or other communication we provide. In the event you grant access to a Pria Contact, you are also responsible for obtaining consent from each Pria Contact to receive such communications from Company and, as applicable, providers of the Services. You agree to hold Company and providers of the Services harmless for any claims and damages that arise out of your failure to obtain such consent.
- Pria Contact Access
The Services allow you to add Pria Contacts to your account. You have the sole discretion whether and when to add any Pria Contact and, if so, who may be added as a Pria Contact. If you add a Pria Contact, that person will have access to your account, including any personal and medication information that you provide for the Services. In order for a Pria Contact to have access to your account, they must download the Application, agree to the Terms, and link to your account. You may revoke a Pria Contact’s access at any time through your account. Once revoked, a Pria Contact will no longer have access to your account but Company is not liable for any information that the Pria Contact may have retained from prior to revocation of access. Company will also not be liable for any acts or omissions of any Pria Contact.
- Subscription and Other Fees
Certain features of the Services require a subscription, which includes recurring, automatically renewing payment obligations (“Subscription”). Subscriptions are billed in advance on a recurring and periodic basis, such as monthly, quarterly or annually (subject to your election). At the end of each billing cycle, your Subscription will automatically renew pursuant to the same terms and conditions unless you or Company cancels the Subscription. You may cancel your Subscription renewal through your online account management or by contacting Company’s customer support team at (866) 608-5168.
A valid payment method is required to activate and maintain a Subscription, and you may be asked to supply certain relevant information, such as your credit card number and its expiration date, and your billing address. You represent and warrant that you have the right to use any credit card that you submit in connection with a Subscription.
Company uses a third party payment processor (“Payment Processor”) to bill you and process payments. Verification of information may be required prior to the acknowledgment or completion of any Subscription. Company reserves the right, including without prior notice, to limit the available quantity of any product or service or discontinue making available the Services; to impose conditions on the honoring of any coupon, discount or similar promotion; to bar any individual from setting up any Subscriptions; and to refuse to provide any individual with the Services. Transactions are final, however, refunds may be available in certain circumstances, subject to Company’s applicable refund policies. You agree to pay all charges incurred by you or on your behalf through the Services, at the prices in effect when such charges are incurred. In addition, you are responsible for any taxes applicable to your Subscriptions. While it is our practice to confirm orders by e-mail, the receipt of an e-mail order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service.
The processing of payments will be subject to the terms and conditions of the Payment Processor in addition to these Terms. Company is not responsible for errors made by the Payment Processor. By electing a Subscription, you agree to pay Company, through the Payment Processor, all fees at the then current pricing in effect for such Subscription or other paid services in accordance with the applicable payment terms (the “Subscription Terms”). You authorize Company, through the Payment Processor, to process your chosen payment method automatically. Company reserves the right to correct any errors made by Payment Processor and to change its billing process at any time. Any changes to the billing process will be posted on the Website or in the Application. Your continued use of the Services after the changes have taken effect indicates your acceptance thereof.
Your payment terms will be determined by your payment method and the terms of an agreement between you and the Payment Processor and/or the issuing financial institution or credit card issuer. If payment is not received by Company, you agree to pay all amounts due upon request. All payments must be made in USD.
- Free Trial
Company may, in its sole discretion, offer a Subscription with a free trial for a limited period of time (“Free Trial”). You may be required to submit billing and/or payment information in order to sign up for a Free Trial but you will not be billed until the Free Trial has expired. On the last day of the Free Trial, unless you cancel your Subscription prior, you will be automatically charged the applicable Subscription fees for the type of Subscription you have selected. Company reserves the right, at any time and without notice, to modify the terms and conditions of the Free Trial or cancel such Free Trial offer. Notwithstanding anything to the contrary in these Terms, the Free Trial will not be subject to support or other obligations of Company and will be provided on an “as is”, “as available” basis only.
You may cancel your Subscription at any time by contacting Company at (866) 608-5168 or by logging into your account and following the cancellation instructions. Cancellations will be processed by Company within a reasonable amount of time. If you cancel your Subscription or modify your Subscription to a lesser included plan, you will continue the Subscription until the end of the then-current billing cycle for which you have paid and your benefits will expire or be modified at the end of that cycle. Partial cycle refunds or credits are not offered. First time Subscriptions may be cancelled within the first ten (10) days of registering for a Subscription and you will not be billed. Unless you set a subscription to stop automatically renewing prior to its renewal date, or cancel a free trial before it ends, each in the manner specified by the Subscription Terms, you authorize Company (without further notice to you, unless otherwise required by applicable laws) to charge the payment method you have provided to it in the amount of the then-current subscription fees and any applicable taxes, on a monthly basis or at any other frequency specified by the subscription terms and agreed to by you.
- Changes in Fees
Company, in its sole discretion and at any time, may modify the Subscription fees applicable to Subscriptions. Any such change in a Subscription fee will become effective at the end of the then-current billing cycle. Company will provide you with reasonable advanced notice of any change in the Subscription fees before such change becomes effective. Your continued use of the Services after the Subscription fee change constitutes your agreement to pay the modified Subscription fee amount.
- Intellectual Property
The Services including without limitation original content (excluding content provided by you), features and functionality are and will remain the exclusive property of Company and its licensors. The Services are protected by copyright, trademark and other laws of both the United States and foreign countries. Company’s trademarks and trade dress may not be used in connection with any product or service without the prior written consent of Company.
- License Grant
Subject to these Terms, Company grants you a limited, non-exclusive, and nontransferable license to:
download, install, and use the Application for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with the Application’s documentation; and access and use on such Mobile Device the content and Services made available in or otherwise accessible through the Application or Website, strictly in accordance with these Terms.
- License Restrictions
Licensee shall not:
(a) copy the Application or other portions of the Services, except as expressly permitted by this license;
(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application or other portions of the Services;
(c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application, other portions of the Services or any part thereof;
(d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services, including any copy thereof;
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, or any features or functionality of the Services, to any third party for any reason, including by making the Services available on a network where it is capable of being accessed by more than one device at any time;
(f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Services; or
(g) use the Services in, or in association with, the operation of medical or life-support systems.
- Contest, Sweepstakes and Promotions
Any contests, sweepstakes, or other promotions (collectively “Promotions”) made available through the Services may be governed by terms or rules that are separate and independent of these Terms. If you choose to participate in any Promotions, you are responsible for reviewing the applicable terms and rules and agreeing to be bound thereto. If the rules for a Promotion conflict with these Terms, the Promotion rules will apply to the Promotion.
- Reservations of Rights
You acknowledge and agree that the Services, with the exception of the physical Dispenser, are provided under license, and not sold, to you. You do not acquire any ownership interest in the Services, with the exception of the purchased physical Dispenser, under these Terms, or any other rights thereto other than to use the Services in accordance with the license granted, and subject to all terms, conditions, and restrictions in these Terms. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Services, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in these Terms.
- Collection and Use of Your Information
- Use of Services Information
Use and Disclosure of Services Information.You understand and agree that the Services Information may be transmitted to and processed in countries that have different data protection laws than in the country in which you have your principal place of business. Company does not assume any obligations with respect to the Services Information, other than as expressly set forth in these Terms or as required by applicable laws. The foregoing shall apply retroactively to the date on which the Services Information was collected.
Submitted Services Information.For purposes of these Terms, “Submitted Services Information” means all Services Information that you or your Pria Contacts submit or otherwise make available to Company under these Terms. You are solely responsible for all Submitted Services Information, including: (i) the accuracy, integrity, quality, legality, reliability, and appropriateness of Submitted Services Information; (ii) creating and maintaining backups and copies of all Submitted Services Information, including for use in the event of a disaster or loss of Submitted Services Information stored in the Services; and (iii) adopting procedures to identify and correct errors and omissions in Submitted Services Information and correcting such errors and omissions.
Communication Systems; Risk of Interception. Some features of the Services require use of various communications systems, such as internet service providers and other similar systems. Company uses various technologies and processes designed to secure communications within its provided communications systems; however, you recognize that such communication methods have an inherent risk of interception and/or interference and, therefore, may not be secure. You hereby consent to such communications and waive any claims that you may have against Company with respect to such communication. Company has no responsibility for the availability, quality or performance of communications services or equipment furnished by third-party communication carriers.
Legal Requests. If Company receives any order, demand, warrant, or any other document requesting or purporting to compel the production of Personal Information in the Submitted Services Information (including, for example, by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoenas, civil investigative demands or other similar processes), Company will promptly notify you (to the extent permissible under applicable laws), so that you may, at your own expense, exercise such rights as you may have under applicable laws to prevent or limit such disclosure. Company will exercise commercially reasonable efforts to prevent and limit any such disclosure and to otherwise preserve the confidentiality of Personal Information in the Submitted Services Information and will cooperate with you with respect to any action taken with respect to such request, complaint, order or other document, including to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to such Personal Information.
Receipt, Archival and Retrieval of Data.Company reserves the right to refuse to accept any Services Information that you may provide. Upon termination or expiration of these Terms, Company will close your account, and you will have ninety (90) days to obtain a copy of your Submitted Services Information to the extent that such Submitted Services Information is in Company’s possession. Data made available to you will be in the form in which it was made available to Company or in such other form or format as company establishes from time to time. Unless otherwise agreed by Company, after this period of time has elapsed, you will no longer be able to retrieve any Submitted Services Information associated with your account. Notwithstanding the foregoing, you acknowledge that Company has no responsibility for the deletion or failure to store any Services Information.
By sharing Submitted Services Information on or through the Services, you represent and warrant that: (i) it is yours (owned by you) and/or you have the right to use it and the right to grant Company and its licensors, service providers, suppliers, subcontractors and distributors (the “Grantees”)the rights and license as provided in these Terms, (ii) you have secured and will maintain all rights, and have obtained and provided all required notices and obtained all legally required consents, necessary to make available Submitted Services Information (including all Personal Information therein) to the Grantees and to enable such entities to provide the Services in accordance with these Terms, and to exercise the rights and licenses granted hereunder, without violating the rights of any third party or otherwise obligating Company to you or to any third party, and (iii) that the posting on or through the Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights or any person or entity. Company reserves the right to terminate your account in the event any of these representations are breached.
You retain any and all rights in and to your Submitted Services Information (except as otherwise expressly provided in these Terms) and you are responsible for protecting those rights. The Grantees assume no liability for Submitted Services Information. You grant the Grantees the right and license to use, modify, perform, display, reproduce and distribute Submitted Services Information on and through the Services. The Grantees have the right but not the obligation to monitor and edit all information, text, graphics, video and other material (“Content”) provided by users. In addition, Content found in, on or through the Services is the property of Company or is used with permission from its licensors. You may not distribute, modify, transmit, reuse, download, repost, copy or use said Content, whether in whole or in part, for commercial purposes or for personal gain without express written advance permission from Company.
You are responsible for compliance with any and all applicable laws.
- Geographical Restrictions
The Services are based in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you are responsible for compliance with local laws.
The information found in the Services may contain errors or inaccuracies and may not be complete or current and, as such, Company does not guarantee the accuracy or completeness of any information found within the Services. Company reserves the right to change or update information and to correct errors, inaccuracies or omissions at any time without prior notice. Company may also from time to time in its sole discretion develop and provide updates to the Services, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your WiFi and Mobile Device settings, when your Dispenser and/or Mobile Device is connected to the internet either:
(a) available Updates will automatically download and install; or
(b) you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the Services or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Services and be subject to these Terms.
- Third-Party Materials
The Services may contain links to third party websites or services that are not owned or controlled by Company and may display, include, or make available other third-party content (including data, information, applications, and other products, services, and/or materials) ("Third-Party Materials"). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
The Services may permit you to initiate the communication, transfer and exchange of certain Services Information between the Services and certain assets, devices or systems approved by Company for use in connection with the Services (“Third-Party Systems”). Company does not exercise control over the form or quality of any data or information (including the Services Information) generated by or transmitted to the Third-Party Systems, including through APIs not exposed by Company. Therefore, you agree to the following:
(a) you accept all limitations in the display and use of all data and information imported via Third-Party Systems; and
(b) Company may restrict the volume and type of information transmitted to and from the Services if Company believes that such volume or type of information may adversely affect the performance of Company’s systems, Third-Party Systems, or the Services.
- Copyright Infringement Claims
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available through the Services infringe your copyright, you (or your agent) may send to Company a written notice by mail, e-mail or fax, requesting that Company remove such material or disable access to it. If you believe in good faith that someone has wrongly submitted to us a notice of copyright infringement involving content that you made available through the Services, you may send Company a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to our Designated Agent as follows: by mail to Stanley Black & Decker, Inc. 701 E. Joppa Road, MS TW230, Towson, Maryland 21286, USA Attn: Robin Weyand, Esq; or by e-mail to Robin.Weyand@sbdinc.com. The Designated Agent’s phone number is (410) 716-3900.
We suggest that you consult your legal advisor before sending a DMCA notice or counter-notice. It is Company’s policy to terminate, in appropriate circumstances, an individual’s right to use the Services if they are deemed by Company to be repeat infringers.
- Parental Controls and Restrictions
We hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers. Please note that Company does not endorse any of the products or services listed on such site.
- Terms and Termination
These Terms become effective when you download/install the Application, access the Services, or acknowledge your acceptance, whichever comes first, and will continue in effect until terminated by you or Company as set forth in this section.
You may terminate these Terms by deleting the Application and all copies thereof from your Mobile Device.
Company may terminate these Terms at any time without notice for any reason or no reason, if it ceases to support the Services, which Company may do in its sole discretion, or in the event the Services become prohibited by law. In addition, these Terms will terminate immediately and automatically without any notice if you violate any of the Terms.
Upon termination, all rights granted to you under these Terms will also terminate and you must cease all use of the Services and delete all copies of the Application from your Mobile Device and account. Termination will not limit any of Company's rights or remedies, or the rights or remedies of any third party beneficiary of these Terms, at law or in equity.
All provisions of the Terms which by their nature should survive termination shall survive termination, including but not limited to ownership provisions, warranty disclaimers, indemnification obligations, and limitations of liability.
- Limited Warranty
Provided your Dispenser was purchased directly from the Company on www.okpria.com, from BLACK + DECKER’s storefront on Amazon, or from another of Company’s Authorized Sellers, Company warrants to the original purchaser only that the Dispenser shall be free from defects in material and workmanship under normal use as described in any Services documentation for a period of one (1) year from the date of purchase, as evidenced by your bill of sale. Company reserves the right to deny any warranty claim for a Dispenser not purchased directly from Company or its Authorized Sellers. Your exclusive remedy and Company’s sole liability under this warranty shall be, at Company’s option and election, repair or replacement of the defective Dispenser or issuance of a refund of the amounts paid by you for the Dispenser. This limited warranty is non-transferable. If you believe your Dispenser contains a defect in material or workmanship within the warranty period, please contact (866) 608-5168. This warranty does not apply to defects that are the result of your, or any Pria Contact’s or third party’s, mishandling, abuse, unauthorized modification, or improper use of the Dispenser.
- Return Policy & Refunds
Dispenser returns and refunds are subject to the retailer’s policies from whom you purchased the Dispenser and must be administered by and through that retailer. Company does not accept returns of any equipment, including the Dispenser, and does not issue refunds therefor.
Subscription fees are non-refundable. Company may however, in its sole discretion, grant refund requests in the event of death or incapacitation, or other such events.
- Disclaimer of Warranties
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THE ‘LIMITED WARRANTY’ SECTION ABOVE, THE SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE” WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS, AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE IN COMBINATIONS THAT YOU MAY SELECT FOR USE, INCLUDING WITHOUT INTERRUPTION (INCLUDING INTERRUPTIONS DUE TO CYBERATTACKS OR MALICIOUS CODE OR OTHERWISE), MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED, OR THAT ANY SECURITY MECHANISMS IMPLEMENTED BY THE PRODUCT WILL NOT HAVE INHERENT LIMITATIONS. COMPANY , ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS, AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM YOUR ACCESS OR USE OF THE SERVICES. YOU AGREE THAT YOUR ACCESS OR USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR INFORMATION SYSTEMS OR ASSETS OR LOSS OF DATA THAT RESULTS FROM SUCH ACCESS OR USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS, OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICES (INCLUDING THE WEBSITE SERVICES) FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, LOSS OF USE OF THE SERVICES OR ANY ASSOCIATED EQUIPMENT OR COST OF SUBSTITUE SERVICES, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES; OR
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE DATE OF LAST CAUSE OF ACTION TO ARISE HEREUNDER.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, licensors, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to your use or misuse of the Services (including the Dispenser and Website Services), the use or misuse of your account with the Company, or your breach of these Terms, including but not limited to the Submitted Services Information.
- Export Regulation
The Services may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Services to, or make the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services available outside the US.
You may not assign, delegate or transfer these Terms, your rights or obligations hereunder, or your Services account without Company’s prior written consent. Company (and its third party beneficiaries) may assign, delegate or transfer these Terms and its rights and obligations without consent.
If any provision of these Terms (or portion thereof) is illegal or unenforceable under applicable law, the remainder of the provision (or portion thereof) will be amended to achieve as closely as possible the effect of the original term and the remainder of these Terms will continue in full force and effect.
- Governing Law
These Terms are governed by and construed in accordance with the internal laws of the State of Connecticut without giving effect to any choice or conflict of law provision or rule. Subject to the arbitration provisions in these Terms, any legal suit, action, or proceeding arising out of or related to these Terms or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of Connecticut. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
- Arbitration & Class Action Waiver
Except for disputes that qualify for small claims court, all disputes arising out of or related to these Terms, your use of the Services and all related matters, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury and you agree that Company and you are each waiving the right to trial by a jury. You agree that any arbitration under these Terms will take place on an individual basis; class arbitrations and class actions are not permitted and you are agreeing to give up the ability to participate in a class arbitration or class action. If you do not want to be bound by this arbitration provision, you may opt out. In order to opt out of this arbitration provision, you must notify us in writing that you do not want to resolve disputes with us by arbitration, and such notice should be delivered by mail to Stanley Black & Decker, Inc., 75 Portsmouth Blvd., Suite 220, Portsmouth, NH 03801 Attn: Legal Department, within thirty (30) days of the earlier of (a) the date you first use or access the Services; and (b) the date you click or tap any button or box marked “accept,” “agree” or “ok” (or a similar term) in connection with these Terms.
The arbitration will be administered by JAMS under its Comprehensive Arbitration Rules and Procedures (currently available at http://www.jamsadr.com/rules-comprehensive-arbitration/) as amended by these Terms. Selection of the arbitrator shall be in accordance with the rules. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, provided that if you are a consumer (as defined by JAMS), you have a right to an in-person hearing in your hometown area. If the parties are unable to agree on a location, such determination should be made by JAMS or by the arbitrator. The arbitrator’s decision will follow the terms of these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. The arbitrator’s award will provide a written statement of the disposition of each claim, the award given and the essential findings and conclusions on which the award is based. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state or local agencies and, if applicable law allows, they can seek relief against us for you. If you are a consumer (as defined under JAMS rules), remedies that would otherwise be available to you under applicable federal, state or local laws will remain available under this arbitration clause, unless you retain the right to pursue such remedies in court. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the claim.
If you are a consumer (as defined under JAMS rules) and you initiate arbitration against the Company, the only fee required to be paid is $250 (the approximate cost of court filing fees) and all other costs will be borne by the Company, including any remaining JAMS Case Management Fee and professional fees for the arbitrator’s services. If the Company initiates arbitration against you and you are a consumer (as defined under JAMS rules), the Company will pay for all costs associated with the arbitration. The parties are responsible for paying their own attorneys’ fees. For arbitrations outside of California, the arbitrator shall have the authority to award attorney's fees and costs to the prevailing party if such an award is allowed under applicable law. For arbitrations within California, the arbitrator shall not have the authority to award attorney's fees and costs to a claimant who does not prevail against the Company.
- Limitation of Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED TO THE EXTENT PERMITTED BY LAW.
No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between these Terms and any applicable purchase or other terms, these Terms shall govern.
Company reserves the right, at its sole discretion, to modify these Terms at any time. If a material revision is made, Company will notify you at least thirty (30) days in advance of any such terms taking effect. By continuing to use and access the Services, you agree to be bound by the revised terms. If you do not agree to the revised terms, you will no longer be authorized to use or access the Services
- Apple-Specific Terms
In addition to your agreement with foregoing terms and conditions in these Terms, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your access to and use of any version of the Application that is compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to these Terms and does not own and is not responsible for the Application. Apple is not providing any warranty for the Application except, if applicable, to refund the purchase price for them. Apple is not responsible for maintenance or other support services for the Application and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the Application, including any third-party product liability claims, claims that the Application fail to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the Application, including those pertaining to intellectual property rights, must be directed to Company. In the event of any third party claim that the Application or your possession and use of the Application infringe that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement or discharge of any such intellectual property infringement claim. You must comply with the Usage Rules set forth in Apple’s App Store Terms of Service. In addition, you must comply with the terms of any third-party agreement applicable to you when using the Application, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms and, upon your acceptance of the terms and conditions of these Terms, will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof; notwithstanding the foregoing, Company’s right to enter into, rescind or terminate any variation, waiver or settlement under these Terms is not subject to the consent of any third party.
- Information and Complaints
If you have any questions about these Terms or any questions or complaints regarding the Services, please contact Company at (866) 608-5168 or send an email firstname.lastname@example.org. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
- Entire Agreement