Conditions of Sales &
Limited Warranty (Goods)
Effective April 12, 2023
By purchasing housewares or other goods (“Goods”) directly from Tonal Systems, Inc. (“Tonal”) or from a Tonal-authorized reseller, you or a giftee are agreeing to be bound by these Conditions of Sales (“Conditions”) and the terms of the warranty described below. Note that we reserve the right to change these Conditions at any time. Please read these carefully. These Conditions do not apply to purchasers who have a separate written contract with Tonal. A “giftee” is an individual who received Goods as a gift from the original purchaser.
THIS IS A LEGAL AGREEMENT. BY PLACING AN ORDER WITH TONAL, YOU ARE ACCEPTING AND AGREEING TO THESE CONDITIONS ON BEHALF OF YOURSELF AND ANY ENTITY YOU REPRESENT IN CONNECTION WITH THE PURCHASE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE CONDITIONS ON BEHALF OF YOURSELF AND ANY SUCH ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION TO PURCHASE AND USE THE GOODS AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE CONDITIONS, YOU MUST NOT PURCHASE GOODS.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.
The disclaimers, exclusions, and limitations of liability under these Conditions will not apply to the extent prohibited by applicable law. For a full description of your legal rights you should refer to the laws applicable in your jurisdiction or consult your own legal counsel. If you live in a jurisdiction that does not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation does not apply to you. To the extent that any of the limitations set out above do not apply, all remaining aspects survive.
Pricing, features and the availability of Goods can change at any time without notice. Prices indicated are in U.S. dollars and we will indicate to you other applicable shipping charges and taxes prior to your purchase. In addition to the purchase price, you are responsible for paying such charges and taxes. By your purchase, you agree to indemnify and hold Tonal harmless from and against any liabilities, interest, penalties or fees arising from a failure to pay any such charges or taxes.
Goods are not offered or intended for sale outside of the United States. Tonal will not ship any Goods outside of the United States, and you will be solely and completely responsible for any purchase or use of Goods outside of the United States. To the extent permitted by applicable law, Tonal will not accept responsibility or liability associated with any loss, damage, or other injury caused by your purchase or use of Goods outside of the United States. You are responsible for complying with all applicable laws and regulations of the country for which the Goods are destined or in which the Goods are used. We are not liable or responsible if you violate any such law(s).
Title to Goods and risk of loss will pass to you upon delivery of the Goods to a carrier. You acknowledge that all scheduled shipment dates are estimates only. Tonal will make commercially reasonable efforts to meet the scheduled shipment dates, but in no event will Tonal be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery.
Any estimated arrival or delivery date provided by Tonal is not a guarantee. Although Tonal will make commercially reasonable efforts to meet estimated delivery dates, delivery of Goods may take more or less time than estimated and Tonal disclaims any loss, damage, or injury resulting from a delay in arrival or delivery. Deliveries that are refused may be returned to us, and it may take up to 45 days for returned Goods to be processed for any potential refund or replacement.
By purchasing Goods to be used in the installation of a Tonal trainer, you agree to allow and provide Tonal or its authorized designees access to your designated location of installation of the trainer for purposes of Tonal or its authorized designees installing, maintaining, repairing, or uninstalling and removing the trainer as necessary if and to the extent that Tonal agrees to undertake such activities. Tonal is not responsible for choice of location of installation and is not responsible for damage or injury resulting from installation at an improper location, such as one without adequate structural support or adequate or safe power supply. You are solely responsible for determining whether the trainer product is appropriate for your home, and you accept that inability to install the trainer or improper trainer function as the result of your choice of location of installation are not valid claims under the Tonal Limited Warranty and do not establish a basis for receiving a refund after the 30-day refund policy for Goods described in these Conditions. You acknowledge and agree that the trainer must be adhered to a wall and that, although the Tonal-authorized installers shall use commercially reasonable efforts to limit damage during any installation you request or purchase from Tonal, maintenance, repair, or removal, there may be damage to the wall, paint, or structure and that you are fully responsible for any such damage. Tonal is not responsible for any such damage, nor is Tonal responsible for any damage or injury caused by self-installation or other unauthorized installation, maintenance, repair, or removal.
If for any reason you are not satisfied with the Goods you purchase, you can return the Goods within 30 days of purchase for a full refund. Proof of purchase must accompany the return. No refunds will be issued 30 days after the date after purchase. Terms for returns of the Product are available in the Terms & Conditions.
To initiate a refund and to arrange for a return, contact Tonal (firstname.lastname@example.org; 855.698.6625). You will receive a refund of the returned Goods’ purchase-price and taxes you paid. If Goods are returned in damaged condition or with missing parts, you may be charged an additional fee. We will process the refund due to you as soon as possible.
The Goods are intended for use by you, the purchaser or giftee, and your single household, only.
Goods purchased directly from Tonal or a Tonal-authorized reseller, have a one year warranty, beginning from the date of purchase or delivery of the Goods, whichever is later. Tonal warrants that, during the one-year warranty period, the Good item will be free from defects in materials and workmanship and will, under normal and intended use, function substantially in accordance with its description and specifications, if any. Proof of purchase is required as a condition to coverage under this warranty. However, this warranty does not cover the following:
- Commercial use of the Goods.
- Normal wear and tear.
- Defects or malfunctions experienced during or caused by use that is not in conformity with Goods descriptions and specifications, if any.
- Damage caused by natural disasters or acts of God, or failure from whatever cause, misuse, accident, neglect, abuse, vandalism, alteration, improper or unauthorized modification, or tampering.
- Damage to your property, home, walls, or floors that may result from installation or removal of Goods.
- Goods that have been resold, stolen, or that Tonal reasonably believes to be resold, stolen, counterfeit, or purchased from an unauthorized distributor or reseller, Goods that are moved outside the United States.
- Damage caused by improper or incorrectly performed maintenance or repair.
- Damage caused by improper installation, relocation, or uninstallation.
- Goods returned without a Return Material Authorization (RMA) number, if required by Tonal.
How Do You Submit a Claim?
Contact Tonal at email@example.com to report any issues you experience with Goods and open a claim under the warranty. You can also report an issue through our Contact form or call us at (855) MY-TONAL. Our team will reach out to you to attempt to help resolve your issue.
If your Goods item has a defect or malfunction covered by this warranty, Tonal will repair, replace, or refund the item at the sole discretion of Tonal. If Tonal determines that a Goods item should be replaced, the replacement may be a new or a re-manufactured Goods item. Tonal may not return the original item to you, nor can Tonal guarantee replacement or repair of the item.
Do not return any Goods to Tonal without first receiving a Return Material Authorization (RMA) number and instructions for how to proceed. Tonal may require you to furnish proof of purchase and/or comply with other requirements before receiving warranty service.
These Conditions are governed by the laws of the State of California, United States of America, without regard to its principles of conflicts of law, and regardless of your location.
ARBITRATION CLAUSE & CLASS ACTION WAIVER
(the “Arbitration Section”)
Initial Dispute Resolution. If a dispute arises between you and Tonal, we would like to talk to you about it before initiating an arbitration proceeding. To begin this process, before initiating any arbitration proceeding, you must send a Notice of Dispute (“Notice”) to us at firstname.lastname@example.org or by certified mail to the attention of Tonal’s Legal Department at the Tonal address: 617 Bryant Street, San Francisco, California 94107. In the Notice, you must describe the nature and basis of the dispute and the relief you are seeking. If we are unable to resolve the dispute within 45 days after Tonal’s receipt of the Notice, then you or Tonal may initiate arbitration proceedings as set out below. Please read this section carefully as it affects your legal rights.
Agreement to Binding Arbitration and Class Action Waiver. EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THESE CONDITIONS OR USE OF THE GOODS OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND TONAL, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED SOLELY THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AGREE THAT TONAL AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. SUCH DISPUTES INCLUDE, WITHOUT LIMITATION, DISPUTES ARISING OUT OF OR RELATING TO INTERPRETATION OR APPLICATION OF THESE CONDITIONS, THIS ARBITRATION PROVISION, INCLUDING THE ENFORCEABILITY, REVOCABILITY OR VALIDITY OF THE ARBITRATION PROVISION OR ANY PORTION OF THE ARBITRATION PROVISION. ALL SUCH MATTERS SHALL BE DECIDED BY AN ARBITRATOR AND NOT BY A COURT OR JUDGE.
Waiver of Class or Consolidated Actions. YOU AGREE THAT ANY ARBITRATION UNDER THESE CONDITIONS WILL TAKE PLACE ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATION PROCEEDING; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
Opt-Out of Arbitration Agreement. You may opt out of this agreement to arbitrate by emailing email@example.com with your first name, last name, address, and relevant membership account information within 30 days of accepting this agreement to arbitrate, with a statement that you decline this arbitration agreement.
Arbitration Procedures. The arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by these Conditions. The Consumer Arbitration Rules are available online at https://www.adr.org/consumer. 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. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow these Conditions 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 Conditions, 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 by a court of competent jurisdiction. Notwithstanding any of the foregoing, nothing in these Conditions will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
Changes to the Arbitration Agreement. Tonal will provide 30 days’ notice of any changes to this arbitration agreement by posting on its websites or app(s), sending you a message, or otherwise notifying you when you are logged into your account. Amendments or changes will become effective 30 days after they are posted on the applicable website or sent to you. If Tonal changes any of the terms of this Arbitration Section after the date you first accepted these Conditions (or accepted any subsequent changes to these Conditions), you may reject any such change by sending us written notice to firstname.lastname@example.org (or Legal@tonal.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or the date of Tonal’s email to you notifying you of such change. By rejecting any amendment or change, you are agreeing that you will arbitrate any dispute between you and Tonal in accordance with the terms of this Arbitration Section as of the date you first accepted these Conditions (or accepted any subsequent changes to these Conditions).
Parents, Subsidiaries, Affiliates. This arbitration agreement will also apply to any claims asserted by you against any present or future parent, subsidiary, or affiliated company of Tonal, or any employee, officer, director, or investor of Tonal, and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to these Conditions (such as with respect to their validity or enforceability), the Goods, and/or the provision of content, products, and/or technology on or through the services offered by Tonal.
WARRANTIES AND DISCLAIMERS
As far as permitted by applicable law, except as provided in these Conditions, the Goods and all other products and services provided by Tonal are provided on an “as-is” basis without warranties or conditions of any kind, either express or implied, including, without limitation, warranties of title or non-infringement or implied warranties of merchantability or fitness for a particular purpose. Your use of the Goods is at your own discretion and risk. You acknowledge and agree that it is your sole responsibility to consult with your personal physician regarding any medical condition, impairment or disability that may prevent or limit your ability to use the Product or any Tonal services. You further understand and agree that you are solely responsible for abiding by your personal physician’s recommendation as to any such medical restrictions, and for using the Product and any Tonal services solely in accordance with your personal physician’s advice.
You are solely responsible for any and all loss, liability, or damages resulting from any use of the Goods, including injury, damage or loss to your person, other persons, your home, the Product, accessories to the Product, Goods and all other items and pets in your home. Except where prohibited by applicable law, Tonal disclaims all and any such loss, liability, or damages.
LIMITATION OF LIABILITY
Nothing in these Conditions and in particular within this “Limitation of Liability” clause shall attempt to exclude liability that cannot be excluded under applicable law.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) TONAL WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF ENJOYMENT, LOSS OF PROFITS, USE OR DATA, OR OTHER INTANGIBLE LOSS, OR OTHER DAMAGES WHATSOEVER IN CONNECTION WITH THE PURCHASE, USE, INSTALLATION, REPAIR, MAINTENANCE, MODIFICATION, OR MOVEMENT OF THE GOODS OR PARTS, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (B) WITHOUT LIMITING THE FOREGOING, TONAL WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR OR A THIRD PARTY’S USE OF OR INABILITY TO USE THE GOODS; (C) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE THE GOODS IS TO STOP USING THE GOODS, AS APPLICABLE; AND (D) THE MAXIMUM AGGREGATE LIABILITY OF TONAL FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO TONAL FOR THE GOODS, AS APPLICABLE. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS CONDITIONS) ARE MADE FOR THE BENEFIT OF BOTH TONAL AND TONAL’S AFFILIATED ENTITIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
If you live in a jurisdiction that does not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation does not apply to you. To the extent that one or any aspect of Tonal’s limitations set out above does not apply, all remaining aspects survive. The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between Tonal and you.
You agree to indemnify, defend, and hold harmless Tonal and its affiliates, and its and their shareholders, directors, officers, employees, investors, and agents, from and against all direct or indirect claims, damages, losses and costs that arise from or relate to your or third-party use of the Goods or your violation of these Conditions.
YOUR USE OF TONAL’S PRODUCT
You must be at least 15 years old to use Tonal’s trainer equipment and package of Smart Accessories (collectively, “Product”) and to establish an account on the Tonal service. The Product is offered and intended only for your personal use, and not for the use or benefit of any third party. Minors who are at least 15 years old who can safely fit and use the Product may do so with parent/guardian consent and supervision and provided that their parent/guardian waives and releases Tonal for any such use. All individuals under the age of majority (a minor) must have permission to participate from a parent or legal guardian who will provide supervision. If you are a parent or legal guardian of a minor using the Product, you are subject to the Terms of Sale and responsible for that minor’s activity with the Product and their interactions with the Tonal service.
Any software embedded in the Product (“Software”) is licensed (and not sold) to you and is subject to the Tonal Terms of Service.
These Conditions do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Tonal. If any provision of these Conditions is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from these Conditions and will not affect the validity and enforceability of any remaining provision.
You may not assign, transfer or sublicense any or all of your rights or obligations under these Conditions without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under these Conditions without restriction. No waiver by either party of any breach or default under these Conditions will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in these Conditions shall be construed as if followed by the phrase “without limitation.” These Conditions, including any terms and conditions incorporated herein, is the entire agreement between you and Tonal relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Tonal relating to such subject matter. Without limitation, a printed version of these Conditions shall be admissible in judicial or administrative proceedings based upon or relating to these Conditions to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Failure or delay by us to enforce any of these Conditions will not constitute a waiver of our rights against you and does not affect our right to require future performance thereof.
Tonal will not be responsible for any failure to fulfill any obligation due to any cause beyond its control. Tonal will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations that is caused by an act or event beyond our reasonable control, including acts of God, strikes, lock-outs or other industrial action by third parties, civil commotion, riot, terrorist attack, war, fire, explosion, storm, flood, earthquake, pandemic, epidemic or other natural disaster, failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
Tonal Systems, Inc.
617 Bryant Street
San Francisco, CA 94107