Terms of Sale
Last Updated: July 21, 2020
By purchasing a product from Tonal Systems, Inc. (“Tonal”), you 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. Read carefully and if you have any questions regarding these Terms & Conditions, please contact us.
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. Nothing in these Terms & Conditions will affect those other superseding legal rights.
YOUR USE OF TONAL’S PRODUCT
You must be at least 15 years old to use Tonal’s trainer equipment (“Product”). 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 a waiver and release of Tonal for any such use and so long as the parent/guardian is present at all times during use.
Notwithstanding anything in these Terms & Conditions to the contrary, any software embedded in the Product “Software”) is licensed (and not sold) to you. 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. You may not copy or modify the Software. You acknowledge that the Software contains trade secrets of Tonal, and, in order to protect such trade secrets, you agree not to disassemble, decompile or reverse engineer the Software nor permit any third party to do so, except to the extent such restrictions are prohibited by applicable law. Tonal reserves all rights and licenses in and to the Software not expressly granted to you under these Terms & Conditions.
Tonal’s pricing 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. 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.
By making a deposit to Tonal, you secure an approximate priority to purchase a Product if and when it becomes available in your market. A deposit does not constitute a purchase of a Product. Rather, it will secure your approximate priority to purchase a Product in the future. If you do ultimately purchase a Product, your deposit will apply towards your order payment. Until you purchase a Product, you may cancel and receive a full refund of your deposit at any time by contacting us at firstname.lastname@example.org. You
understand that your deposit will not be held in an escrow or trust fund and Tonal will not pay interest on a deposit. The deposit is not transferable or assignable to any third party.
The Product is not offered or intended for sale outside of the 48 continental United States. Tonal will not ship any Product outside of this area, and you will be solely and completely responsible for any purchase or use of the Product outside of this area. To the extent permitted by applicable law, Tonal will accept no responsibility or liability associated with any loss, damage, or other injury caused by your purchase or use of the Product outside of this area. 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.
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 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 reasonable effort to meet estimated 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.
By purchasing the Product, you agree to allow and provide Tonal or its designees access to your designated location of installation of the Product for purposes of Tonal 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-approved installers shall use commercially reasonable efforts to limit damage during any installation, 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 unauthorized or self-installation, 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. You will receive a refund of the price and taxes you paid for the Product, including charges 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
Resale of the Product is not authorized by Tonal. The Product is intended for use by you, the end user, only.
THIRD PARTY SOFTWARE AND APPLICATIONS
You agree not to download and/or install any third-party software and/or applications that are not expressly authorized by Tonal on any Tonal hardware. 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 United States and the State of California, U.S.A., without regard to its principles of conflicts of law, and regardless of your location.
ARBITRATION CLAUSE & CLASS ACTION WAIVER
If a dispute arises between you and Tonal, we would like to talk to you about it. Contact us at email@example.com. If we are unable to resolve the dispute, you agree to submit the dispute to binding arbitration as described 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 TERMS & CONDITIONS OR USE OF THE PRODUCT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND TONAL, 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 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 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.
YOU AGREE THAT ANY ARBITRATION UNDER THESE TERMS & CONDITIONS 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 ACTION.
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, and address within thirty
(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 Terms & 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 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 having jurisdiction thereof. Notwithstanding any of the foregoing, 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 for you.
WARRANTIES AND DISCLAIMERS
As far as permitted by applicable law, 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 unless otherwise expressly noted in the Tonal Limited Warranty.
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 Service. 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 Service 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. 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, LOSS OF OTHER INTANGIBLES, , OR OTHER DAMAGES WHATSOEVER IN CONNECTION WITH THE PURCHASE, USE, 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; (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.
You agree to indemnify, defend, and hold harmless Tonal and its affiliates, and its and their directors, officers, employees, 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.
You can place orders for the Product through Tonal’s online store. When you place an order, you will enter certain identifying information such as name, phone number, e-mail address, and shipping and billing address, so we can fulfill your order. You agree and understand that Tonal or a third-party provider may store, process, and use that information for purposes of fulfilling your order. You also agree that the information you provide is true and complete and that you will pay the price and charges identified.
Tonal may provide notifications to you as required by law or for marketing or other purposes via (at its option) email to the primary email associated with purchase, hard copy, or posting of such notice on the Tonal website. Tonal is not responsible for any automatic filtering you or your network provider may apply to email notifications.
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 this 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, 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.