1. General. These terms and conditions (“Terms”) apply to all purchases (and other activity) of Training Content and Devices. “Device” refers solely to the hardware component of the Product and “Training Content” refers to the content included with your Device at the time it was purchased. The term “Product” refers collectively to the Device and Training Content. As used together, the Device and Training Content, the know-how, software, methods and processes for use of the Training Content and Device, comprise the “Ikkos System.” You hereby agree to all of these Terms. Any different or additional terms are deemed void and of no effect unless the additional terms are specifically agreed upon in writing by an authorized representative of IKKOS.
2. Purchase and Delivery. You agree to purchase and IKKOS agrees to deliver the Products to You at the delivery address you have supplied with your order.
3. Cancellation. Once received by IKKOS, You may not cancel Your order. However, IKKOS may do so if: (a) IKKOS fails to receive your payment; (b) You fail to meet reasonable credit or financial requirements established by IKKOS, including any limitations on allowable credit, with respect to such order; or (c) otherwise fail to comply with a material provision of the Terms applicable to Your purchase.
4. Returns. You may return Products You have purchased to IKKOS for repair, replacement or refund if (i) they are not what You ordered; (ii) they are damaged when You receive them; or (iii) they do not operate in the manner described in the documentation accompanying which Ikkos may supply with them or post on its website from time to time. In order to exercise this right, You must notify IKKOS in writing that You intend do so within 30 (30) days after You receive the Products and must comply with the IKKOS RMA Policy. If you fail to notify IKKOS as required or to follow the IKKOS RMA Policy, You waive any right to return the Products or to claim that they do not conform Your Order or the limited warranty. This constitutes Your only remedy and IKKOS’ only obligation for non-conforming Products. NOTE: You may also return Devices that do not conform to the original Manufacturer’s limited warranty (See Section 13).
5. IKKOS Rights.
(a) Ownership. You acknowledge that (a) IKKOS is and shall be the sole and exclusive owner of the Training Content and the IKKOS System, as it may be improved, otherwise modified or supplemented hereafter (including, without limitation, in any way attributable to any suggestion, recommendation or similar ideas you may have) (b) that the Training Content and the IKKOS System are protected by copyright, patent or other law, and that (c) IKKOS retains all right, title and ownership in the Training Content and the IKKOS System, including all intellectual property rights, except as provided in Section 6(a). Your rights, if any, in the Products are limited to those in Section 6(a) and Ikkos hereby reserves all other rights of any type or nature.
(b) License. You agree that IKKOS may (but is not required to) automatically, remotely and/or otherwise capture and upload data about Your use of the IKKOS System and may use this data for various purposes, including to improve and promote the Ikkos System and substantiate the results associated with its use, including in commercial settings and for commercial purposes. You agree to reasonably cooperate with IKKOS in this regard. You also agree that IKKOS may use Your name and likeness to promote the IKKOS System. You agree that IKKOS may do so, without charge or royalty of any kind, and that these rights will survive termination of Your use of the IKKOS System.
6. Use of the Products.
(a) Your Rights. When You purchase a Product from IKKOS, You own the Device. You do not own any of the intellectual property embodied in it. For example, You do not obtain any rights in any IKKOS patents (including without limitation U.S. Patent Applications Serial Nos. 61\140,193 and 12\646) covering the goggles, the copyright in the images of any Training Content, or any Ikkos trademark or logo . Instead, You only obtain a limited right to use the intellectual property. The limited right is exercisable by You personally if you are an individual or, if You are an entity, by individuals who are employees of, members of, or participants in Your entity (“Permitted Users”) and then only (i) in connection with your usual and customary activity and (ii) in compliance with these Terms by any such Permitted Users. . Any other use violates IKKOS patent, copyright, trademark and other rights and is a violation of these Terms and applicable law and is subject to prosecution, including fines and criminal penalties.
(b) License to Use. Your license is non-exclusive, may not be transferred and is conditioned on Your payment of the applicable fees for the Products, Your compliance with these Terms, and your ensuring compliance and agreement by any Permitted User of the Product with these Terms.
(c) Limitations. Notwithstanding anything else in these Terms, You agree that You will not (i) sublicense, assign, lease, pledge or otherwise transfer Your rights in the Products or allow any security interest, lien or encumbrance to be created in or on such rights except as specifically permitted in Section 1(g); (b) copy, reproduce, reverse engineer, compile, remanufacture, modify, create derivative works or disassemble any portion of the Products, or in any way duplicate all or any portions of the Products; (c) republish, display, post, transmit or sell any Training Content or (d) remove, modify or take any other action that would obscure the patent, copyright or trademark notices contained on or in the Products, or in any copy thereof.
(d) Duration. Your license to use the Training Content that was pre-installed on the Device You purchased will continue until terminated under Section 1(f).
(e) Termination. Your rights to use the Devices and Training Content will terminated immediately, without notice, if You fail to comply with any of the material provisions of the Terms.
(f) Transfer. The licensed rights granted to You above are personal; You may not sell, license or transfer Your license to any other person.
7. Performance. IKKOS does not make any representations or warranties with respect to the results You may experience using the Products or the IKKOS System. Results vary depending on various factors outside IKKOS’ control. You waive and release IKKOS from any and all claims relating to Your use of the Products and the IKKOS System.
8. Health Risks. Use of the Products or the IKKOS System will involve physical activity. You acknowledge that any user should consider the risks involved and consult with a medical professional before engaging in any physical activity. If there occurs any headaches, nausea, or trouble with eyesight or any discomfort or pain in the course of using the IKKOS System, discontinue use immediately and consult a medical professional. IKKOS is not responsible or liable for any injuries or damages that result from use of, or inability to use, the features of the IKKOS System.
9. Assumption of Risk. You agree that You are using the Products and the IKKOS System at your own risk, are voluntarily participating in these activities, assume all risk of injury or harm to Yourself, and will indemnify and hold harmless IKKOS, its officers, directors, employees and agents for any loss, liability, claim, damage, and expense (including reasonable attorneys’ fees) arising with any use of or reliance on the information or services you receive through IKKOS.
10. MANUFACTURER’S LIMITED WARRANTY. THE ORIGINAL MANUFACTURER PROVIDES YOU A LIMITED WARRANTY. THIS WARRANTY DOES NOT APPLY TO ANY DEVICE THAT (A) HAS BEEN SUBJECTED TO ABUSE, MISUSE, NEGLECT, OR ACCIDENT AFTER SHIPMENT (B) HAS BEEN REPAIRED OR ALTERED BY SOMEONE OTHER THAN MANUFACTURER, MANUFACTURER’S AUTHORIZED REPRESENTATIVE OR (C) HAS BEEN USED IN A MANNER CONTRARY TO THE MANUFACTURER DOCUMENTATION.
11. DISCLAIMER OF UNSTATED WARRANTIES. THE ORIGINAL MANUFACTURER’S LIMITED WARRANTY IS THE ONLY WARRANTY APPLICABLE TO THE PRODUCTS. YOU ACKNOWLEDGE THAT IKKOS DOES NOT MANUFACTURE THE DEVICE AND MAKES NO WARRANTIES WHATSOEVER TO YOU WITH RESPECT THERETO, AND SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
12. Exclusive Remedy. Your sole and exclusive remedy for any breach of the original manufacturer’s limited warranty, if any, is to return the Device (including the Training Content) to IKKOS during the applicable warranty period. IKKOS will use commercially reasonable efforts to deliver, at its expense and at its sole option, repair or replace or provide a refund of the price paid for the Device within thirty (30) days following IKKOS’s receipt thereof from You in accordance with IKKOSs RMA process. If IKKOS or the original equipment manufacturer determines that any returned Device is not defective or is not eligible for warranty service or replacement, the Device will be returned to You and You shall pay all costs of handling, inspecting, testing and transporting the Device to and from IKKOS.
13. LIMITATION OF LIABILITY. IKKOS’S SOLE LIABILITY TO YOU SHALL BE FOR THE PURCHASE PRICE PAID TO IKKOS FOR PRODUCTS THAT ARE RETURNED AS AND ARE DETERMINED TO BE NON-CONFORMING AS PROVIDED IN SECTIONS 4 AND 13. IKKOS SHALL HAVE NO OTHER LIABILITY FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION FOR PUNITIVE OR EXEMPLARY DAMAGES OR ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE, PROFITS, REVENUE OR BUSINESS). THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN AND REGARDLESS OF WHETHER SUCH DAMAGES ARE SOUGHT BASED ON BREACH OF CONTRACT, BREACH OR WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
14. RELEASE; INDEMNITY. YOU HEREBY RELEASE AND AGREE TO INDEMNIFY AND HOLD HARMLESS IKKOS AND ITS EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENT, OR AFFILIATES (THE “IKKOS INDEMNITEES”) FROM ALL JUDGMENTS, AWARDS, CLAIMS, DEMANDS, DAMAGES, COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES) (COLLECTIVELY, “LOSSES”), FOR INJURY OR DEATH TO ALL PERSONS AND FOR LOSS AND DAMAGE TO PROPERTY BELONGING TO ANY PERSON ARISING OR ALLEGED TO ARISE IN ANY MANNER FROM THE PRODUCTS, INCLUDING WITHOUT LIMITATION ANY LOSSES ARISING OR ALLEGED TO ARISE FROM THE DESIGN OR MANUFACTURING OF THE PRODUCTS, THE USE OR MISUSE BY ANY PERSON OF PRODUCTS (INCLUDING, WITHOUT LIMITATION, ANY NEGLIGENCE CLAIM), OR ANY IKKOS INDEMNITEE’S ACTS OR OMISSIONS OR FAILURE TO PERFORM ANY OBLIGATIONS IT/THEY MAY HAVE TO YOU.
15. Compliance With Laws. You shall comply with all applicable laws, rules and regulations applicable to Your purchase and use of the Products.
16. Governing Law; Venue. This Purchase Order, Your subscription agreement, and all other agreements between You and IKKOS shall be deemed to have been executed and entered into in the State of Washington and shall be governed, construed, performed and enforced in accordance with the internal laws of the State of Washington, excluding its conflict of law principles, and such laws shall be applied and controlling in any arbitration conducted pursuant to Section 19 hereof. The Parties agree to exclude in its entirety, the application of the United Nations Convention on Contract for the International Sale of Goods. Except as provided in Section 19, any dispute between You and IKKOS shall be in the state and federal courts located in Seattle, Washington. You expressly submit to the personal jurisdiction of such courts and knowingly and irrevocably waive any objection to such venue based on forum nonconveniens.
17. Attorneys’ Fees. If You fail to pay any sums owing to IKKOS, You agree to reimburse IKKOS for all collection costs and expenses, including without limitation reasonable attorneys’ fees, incurred by IKKOS in collecting such sums. In addition, in the event arbitration is commenced under Section 19 below to enforce any of these Terms, or in the event any litigation is commenced in connection therewith, the prevailing Party shall be reimbursed by the other Party for all costs and expenses incurred in connection with such arbitration or litigation, including without limitation reasonable attorneys’ fees, including upon appeal.
18. Dispute Resolution. Any controversy or claim arising out of or relating to these Terms or the Products shall be settled by binding arbitration in Seattle, Washington, in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in a court having jurisdiction thereof. Any damages awarded therein shall be US Dollars. The prevailing Party in such arbitration shall be entitled to receive, in addition to any other relief provided, reimbursement of its actual attorneys’ fees and costs incurred in preparing for, presenting and enforcing the arbitration. Any award rendered in such arbitration shall be final and binding and may be entered and enforced as a judgment with any court having jurisdiction over any of the Parties hereto.
19. Successors and Assigns. Except as specifically permitted under Section 6(f), You may not assign any of Your rights, obligations or privileges (by merger, consolidation, change of control, operation of law or otherwise) under these Terms without the prior written consent of IKKOS. The terms and conditions of these Terms shall inure to the benefit of and be binding upon Your successors and assigns.
20. Waiver. No waiver of any of the provisions of these shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar), nor shall any such waiver constitute a continuing waiver unless otherwise expressly so provided.
21. Notices. All notices required or permitted under these Terms shall be in writing and shall be deemed effective upon delivery personally, by overnight delivery with proof of receipt, or upon deposit in the United States Post Office, by certified mail, postage prepaid, addressed at the address below, or at such other address or addresses as either Your or IKKOS shall designate to the other in writing. Any notices sent to IKKOS shall be to the attention of the “President/CEO”.
22. Survival. The provisions of Sections 5, 6, 12, 13, 14, 17 and 18 shall continue in perpetuity unless otherwise agreed in writing by You and IKKOS.
23. Force Majeure. Neither party shall be liable for any delays or failures in performance due to circumstances beyond its reasonable control, including but not limited to delays because of strikes, lockouts, work slowdowns or stoppages, accidents, acts of God, failure of any governmental or other regulatory authority to act in a timely manner.