Terms of Sale
Updated as of June 22, 2023
You can find the earlier version(s) in our archive.
By purchasing a new Tonal trainer or new Tonal-branded package of smart accessories directly from Tonal Systems, Inc. (“Tonal”), or from a Tonal-authorized reseller, you or a giftee are agreeing to be bound by these Terms & Conditions of Sale (“Terms & Conditions”) and the terms of the warranty described in the Tonal Limited Warranty included with your purchase. Note that we reserve the right to change these Terms & Conditions at any time. Please read these carefully. These Terms & Conditions do not apply to purchasers who have a separate written contract with Tonal. A “giftee” is an individual who received a new Tonal trainer or new Tonal-branded package of smart accessories as a gift from the original purchaser; the giftee is considered the owner of the original membership attached to that Product. These Terms & Conditions are not applicable to any apparel, housewares or other goods sold on Tonal.com or items sold on the website of a Tonal-authorized reseller.
THIS IS A LEGAL AGREEMENT. BY PLACING AN ORDER WITH TONAL, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS & 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 TERMS & 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 TONAL’S PRODUCTS AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS & CONDITIONS, YOU MUST NOT PURCHASE TONAL’S PRODUCTS.
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 Terms & 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.
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 these Terms & Conditions and responsible for that minor’s activity with the Product and their interactions with the Tonal service.
Notwithstanding anything in these Terms & Conditions to the contrary, any software embedded in the Product (“Software”) is licensed (and not sold) to you and is subject to the Tonal Terms of Service. Subject to the terms of these Terms & Conditions, Tonal grants to you a limited, nonexclusive, nontransferable, revocable license to use the Product’s Software, solely in executable form, solely as embedded in the Product, solely for your internal, non-commercial use in connection with your use of the Product. You may not copy, reproduce, modify, create derivative works from, translate, publish, broadcast, synchronize, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose the Software. You acknowledge that the Software contains copyrights, patents, trade secrets and/or other intellectual property (“Intellectual Property”) of Tonal, and, in order to protect such Intellectual Property, you agree not to disassemble, decompile or reverse engineer the Software nor permit any third party to do so, Tonal reserves all rights, including Intellectual Property rights and all associated goodwill, and licenses in and to the Software not expressly granted to you under these Terms & Conditions.
Tonal’s Product pricing, features and the availability of the Product 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 Product purchase price, you are responsible for paying such charges and taxes. Any subscription or membership fees are separate from the Product purchase price; see the Tonal Terms of Service for more details on membership fees. 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.
The Product is not offered or intended for sale outside of the United States. Tonal will not ship any Product outside of the United States, and you will be solely and completely responsible for any purchase or use of the Product 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 the Product outside of the United States. You are responsible for complying with all applicable laws and regulations of the country for which the Product is destined or in which the Product is used. We are not liable or responsible if you violate any such law(s).
Title to the Product and risk of loss will pass to you upon delivery of the Product 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 the Product 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 Products to be processed for any potential refund or replacement.
If you purchase directly from Tonal and finance your purchase through Affirm, in limited cases your Affirm loan may be due to expire before your Product ships. We will notify you and give you the option to either (a) start payments or (b) cancel your existing order and place a new order via Affirm or with a credit card. If you cancel your order and place a new order, your place in line will remain the same, although your Product will not ship until you place the new order. Note that if you finance the new order with Affirm, we cannot guarantee the same interest rate as your existing loan. Affirm may not be available or offered for purchases made from Tonal-authorized resellers.
By purchasing the Product, you agree to allow and provide Tonal or its authorized designees access to your designated location of installation of the Product for purposes of Tonal or its authorized designees installing, maintaining, repairing, or uninstalling and removing the Product 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 Product is appropriate for your home, and you accept that inability to install the Product or improper Product 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 described below. You acknowledge and agree that the Product 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 or, maintenance, repair, or removal.
If for any reason you are not satisfied with the Product you can return the Product within 30 days of installation of the Product for a full refund. Proof of purchase must accompany the return. No refunds will be issued 30 days after the date of installation of the Product.
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 Product purchase-price and taxes you paid for the Product, including charges you paid for delivery and installation of the Product. If you financed your purchase, Affirm will refund your paid installments less any interest paid. If the Product is 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.
RESALE NOT AUTHORIZED
Purchase of Product for the purpose of resale of or intent to sell the Product to third parties, other than by authorized resellers approved by Tonal, is not authorized by Tonal. The Product is intended for use by you, the purchaser or giftee, and your single household, only.
THIRD PARTY SOFTWARE AND APPLICATIONS
You agree not to download and/or install any third-party software and/or applications on any Tonal hardware that are not expressly authorized by Tonal. The unauthorized downloading and/or installing of any such third-party software and/or applications is at your own risk and may void any applicable warranty, including the Tonal Limited Warranty, and Tonal disclaims all responsibility for any damage or injury that may result.
These Terms & Conditions are governed by the laws of the State of California, United States of America (including federal arbitration law), without regard to its principles of conflicts of law, and regardless of your location. If any dispute or claim between you and Tonal is not subject to arbitration pursuant to the Arbitration Section below, then the state and federal courts located in the County of San Francisco County, California, will have exclusive jurisdiction. You and Tonal waive any objection to venue in any such courts. If your local law requires that consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction, this section may not apply to you only to the extent that local law conflicts with this section.
ARBITRATION CLAUSE & CLASS ACTION WAIVER
(the “Arbitration Section”)
Disputes that must be Arbitrated. The terms of this Arbitration Section apply to all Disputes between you and Tonal. “Dispute” means any disputes or claims (excluding those exceptions listed below) arising out of or related to these Terms & Conditions, the Products or any aspect of the relationship between you and Tonal, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, including, without limitation, disputes or claims arising out of or relating to interpretation, application, enforceability, revocability or validity of these arbitration terms.
The terms of this Arbitration Section do not apply to the following exceptions: (a) claims that qualify for small claims court, (b) claims exclusively related to the intellectual property or intellectual property rights of you or Tonal, and (c) an action for injunctive relief in a court of law to preserve the status quo while an arbitration proceeds. Nothing in these Terms & 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.
This Arbitration Section only applies to Disputes and does not prevent either party from taking unilateral actions they are entitled to take under these Terms & Conditions. This means, for example, that you can return a Product in accordance with the “Returns” section without needing to arbitrate the decision first. Likewise, Tonal may enforce these Terms & Conditions through actions like terminating or suspending your use of the Service at any time without needing to arbitrate the decision first. If you or Tonal believe that the other has made a mistake about what actions these Terms & Conditions allows them to take (e.g., you disagree with Tonal suspending or terminating your access to the Products), that disagreement is a Dispute to which the binding individual arbitration requirements in this Arbitration Section would apply.
Informal Dispute Resolution. If you have a Dispute with Tonal, we would like the opportunity to talk to you about it before you initiate an arbitration proceeding. You can send a notice of your Dispute to us at email@example.com or by certified mail to the attention of Tonal’s Legal Department at the Tonal address: 617 Bryant Street, San Francisco, California 94107. In your notice, you should include your name, address, and other contact information, a description of the nature and basis of your dispute and the relief you are seeking. We hope you’ll try the informal dispute resolution process first, but you don’t have to before filing an arbitration action. Please read this Arbitration Section carefully as it affects your legal rights.
Agreement to Binding Arbitration. DISPUTES WILL BE RESOLVED SOLELY THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND TONAL AND YOU AGREE THAT TONAL AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.
Opt-Out of Arbitration Agreement. You may opt out of this agreement to arbitrate by emailing firstname.lastname@example.org with your first name, last name, address, and relevant membership account information within thirty (30) days of first accepting this agreement to arbitrate, with a statement that you decline this arbitration agreement.
Arbitration Procedures. Disputes may only be submitted to the American Arbitration Association (“AAA”) for resolution through binding arbitration in English before one arbitrator.
If you are a consumer, meaning you use the Products only for personal, family or household purposes, the then-current version of the AAA’s Consumer Arbitration Rules, as amended by these Terms & Conditions, will apply to any arbitration between you and Tonal. 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 Terms & 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 Terms & 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 in any court of competent jurisdiction.
Federal Arbitration Act. These Terms & Conditions affect interstate commerce, and the enforceability of this Arbitration Section will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq., to the extent permitted by law. As limited by the FAA, these Terms & Conditions, and the AAA rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability.
WAIVER OF CLASS OR CONSOLIDATED ACTIONS
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AND TONAL WILL ONLY BRING DISPUTES OR CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS & CONDITIONS, THE PRODUCTS OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND TONAL IN AN INDIVIDUAL CAPACITY AND SHALL NOT SEEK TO BRING, JOIN OR PARTICIPATE IN ANY CLASS ACTIONS; CLASS ARBITRATIONS OR ANY OTHER KIND OF CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE PROCEEDINGS. If this Waiver of Class or Consolidated Actions is found to be unenforceable or unlawful such that any claims may proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction under the terms of the “Governing Law” section and not brought in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration.
WARRANTIES AND DISCLAIMERS
As far as permitted by applicable law, and unless otherwise expressly noted in the Tonal Limited Warranty, the Product 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 Product 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 Product, including injury, damage or loss to your person, other persons, your home, the Product, accessories to the Product, 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 Terms & 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 PRODUCT 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 PRODUCT, INCLUDING BUT NOT LIMITED TO DATA, INTERNET OR SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE; (C) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE PRODUCT IS TO STOP USING THE PRODUCT; 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 PRODUCT. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS TERMS & 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 Product or your violation of these Terms & Conditions.
These Terms & 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 Terms & Conditions is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from these Terms & 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 Terms & Conditions without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under these Terms & Conditions without restriction. No waiver by either party of any breach or default under these Terms & 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 Terms & Conditions shall be construed as if followed by the phrase “without limitation.” These Terms & 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 Terms & Conditions shall be admissible in judicial or administrative proceedings based upon or relating to these Terms & 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 Terms & 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