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    Terms of Sale

    Last Updated: May 14, 2020

     

    Overview

     

    These Terms of Sale, including those additional terms and conditions and policies referenced herein or available by hyperlink (together, the “Sales Terms”), describe your rights and responsibilities concerning your purchase of hardware products offered by us (the “Products”) and any associated subscription, installation, support, or extended warranty services (collectively, the “Additional Services”) from our online store (the “Store”).  By making a preorder or purchase of any Products or Additional Services from the Store, you agree to be bound by these Sales Terms and any additional terms we provide, including without limitation the applicable limited Warranty and Refund Policy applicable to the purchased Product (the “Product Warranty”), our Terms of Service. (the “TOS”), and any additional terms included in-box with any Kapsul product.  Our Privacy Policy describes how we handle the information you provide to us when you use the Store or purchase Products or Additional Services. For an explanation of our privacy practices, please visit our Privacy Policy.

     

    The Products and Additional Services are provided to you by or on behalf of Premium Home Comfort Inc. d/b/a Kapsul (“Kapsul”, “we”, or “us”).  For purposes of these Terms, “you” and “your” means you as the purchaser of the Products or Additional Services.  If you use the Products or Additional Services on behalf of a company or other entity then “you” includes you and that entity, and you represent and warrant that: (a) you are an authorized representative of the entity with the authority to bind the entity to these Sales Terms; and (b) you agree to these Terms on the entity's behalf.

     

    PLEASE READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS CONTAINED IN THESE SALES TERMS.  BY ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE SALES TERMS.  IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THESE TOS, THEN YOU MAY NOT ACCESS THE SITE OR USE ANY SERVICES.  IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TOS.

     

    You can review the most current version of these Sales Terms at any time on this page.  We reserve the right to update, change, or replace any part of these Sales Terms by posting updates or changes to our Store.  It is your responsibility to check this page periodically for updates or changes.  Your continued use of or access to the Store or purchase of Products or Additional Services following the posting of any updates or changes constitutes acceptance of those updates or changes.

     

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    Please note that Section 14 contains an arbitration clause and class action/jury trial waiver.  By agreeing to these Terms, you agree: (a) to resolve all disputes with us through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and (b) that you waive your right to participate in class actions, class arbitrations, or representative actions.  You have the right to opt-out of arbitration as explained in Section 14.

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    1. Online Store

     

    Our Store is hosted on Shopify Inc., a third party unaffiliated with Kapsul.  They provide us with the online e-commerce platform that allows us to sell our Products and Additional Services to you.

     

    Each time you preorder or purchase Products from Kapsul, the Sales Terms in force at that time will apply between you and Kapsul.  If you purchase any Additional Services, we will notify you in the event we make changes to these Sales Terms that materially affect your Additional Services.  If you have any questions regarding these Sales Terms, you can contact legal@kapsulair.com.

     

    When preordering or purchasing Products or Additional Services, you understand that your content (not including credit card information), may be transferred unencrypted and involve: (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.  Credit card information is always encrypted during transfer over networks.

     

    Our Products and Additional Services are offered and available to users who are at least 18 years of age or older. By using our Services, you represent and warrant that you are at least 18 years of age or older.

     

    Prices for our Products and Additional Services are subject to change without notice.  We reserve the right to modify, discontinue, or refuse to provide the Products or Additional Services (or any part or content thereof) without notice at any time. We shall not be liable to you or any third party for any modification, price change, suspension, refusal, or discontinuance of the Service.   

     

    The Store is for retail sales to private consumers only.  Please contact support@kapsulair.com if you wish to purchase wholesale or discuss distribution partnerships.

     

    Although the Store is accessible worldwide, the Products and Additional Services offered in the Store are not designed and tested or approved for use in all countries.  If you choose to access the Store or use the Products or Additional Services outside of the United States and Canada (each, a “Covered Country”), you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country and all losses, damages, liabilities, or claims associated with such use of the Products or Additional Services.  You understand and accept that the Store, Products, and Additional Services are not designed or approved for use in a non-Covered Country, and some or all of the features of the Store, Products, or Additional Services may not work or be appropriate for use in such a country.  To the extent permissible by law, Kapsul accepts no responsibility or liability for any damages or loss caused by your access or use of the Store, Products, or Additional Services in a non-Covered Country.  

     

    2. Product Compatibility

     

    You acknowledge and agree that you have verified the compatibility of the Products you are purchasing with other equipment in your home (e.g., ensuring that your power supply is AC 120). You are solely responsible for determining the compatibility of the Products with other equipment in your home, and you accept that lack of compatibility is not a valid claim under the applicable limited warranty provided with your Products and does not otherwise constitute a basis for receiving a refund after the 30-day refund policy described below and set forth in our Warranty and Refund Policy.

     

    3. Reservations and Pre-Orders

     

    Products available for reservation and pre-order are not offered for sale by Kapsul.  Your placement of a reservation and pre-order does not create a contract for sale.  By placing a reservation and pre-order for a Product that is not yet available for sale, you make an offer to Kapsul to purchase the Product subject to these Sales Terms.  Kapsul will obtain an authorization from your bank or credit card company for no charge.  An authorization from your payment card company may stay open for several weeks or months before a charge is actually made.  You may cancel your offer to purchase Products at any time prior to shipment and you will not be charged.  Later, when the Product is offered for sale, Kapsul may accept your offer to purchase Products subject to these Sales Terms.  At that time, Kapsul will capture payment on the payment card you provided and ship your Product.  Kapsul may obtain an additional authorization from your payment card company to confirm necessary funds are available to purchase the Products requested.

     

    Kapsul reserves the right to cancel or refuse any order for any reason at any time prior to shipment, including after an order has been submitted, whether or not the order has been confirmed.  We may attempt to contact you if all or a portion of your order is cancelled, or if additional information is needed to complete and accept your order.

     

    4. Payment and Sales Tax

     

    By providing a credit card or other payment method accepted by Kapsul, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your order (including any applicable taxes, shipping and handling costs, and other charges).  If the payment method you provide cannot be verified, is invalid, or is otherwise not acceptable, your order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your order.  In the event you want to change or update payment information associated with your Kapsul account, you can do so at any time by logging into your account and editing your payment information.

     

    Depending on the order, Kapsul calculates and charges sales tax in accordance with applicable laws.

     

    5. Additional Services

     

    (a) Subscription Services.  Although we do not currently offer subscription services, we may do so in the future and will provide information on such services through our Store or the Kapsul website at the kapsulair.com, kapsulair.myshopify.com, or then-current successor domain.

    (b) Billing for Subscription Services.  For any subscription services you purchase, you expressly acknowledge and agree that: (i) Kapsul is authorized to charge you a monthly or annual subscription service fee depending on the billing cycle you choose (in addition to any applicable taxes) for as long as your subscription continues; and (ii) your subscription is continuous until you cancel it or such Subscription Service is suspended, discontinued or terminated in accordance with Kapsul’s Terms of Service.  Kapsul will automatically bill the payment method associated with your Kapsul account on a monthly or annual basis (depending on the billing cycle you choose).  You acknowledge that the amount billed may vary due to promotional offers, changes in your subscription services plan, and changes in applicable taxes, and you authorize us to charge your payment method for the corresponding amounts.

    (c) Cancellation of Subscription Services.  You may cancel your subscription services at any time by doing so through your Kapsul account.  Note that merely unpairing a Product from a subscription service will not trigger cancellation of the subscription service.

    (d) Installation or Support Services.  Although we do not currently offer installation or support services, in the event we do so in the future or partner with a third party to provide such services, we will provide information on such services through our Store or the Kapsul website at the kapsulair.myshopify.com domain.

    (e) Extended Warranty Services.  Although we do not currently offer any extended warranties and all Products are subject to their applicable Product Warranty, we may do so in the future and will provide information on such services through our Store or the Kapsul website at the kapsulair.myshopify.com domain.

     

    6. Availability and Pricing

     

    All Products and Additional Services offered on the Store are subject to availability, and we reserve the right to impose quantity limits on any order, to reject all or part of an order, and to discontinue offering certain Products or Additional Services without prior notice.  Prices for the Products and Additional Services are subject to change at any time, but changes will not affect any order for Products or Additional Services you have already placed. In the event we change the pricing for any subscription services you have purchased, we will give you advance notice of this change in accordance with the notification procedures set forth below in these Sales Terms. After receiving this notice, you will be deemed to have accepted the change in pricing, unless you cancel your subscription as set forth in Section 5(c) above.

     

    7. Resale and Title Transfer

     

    Purchases made on the Store are intended for your personal end user needs only, and are not authorized for resale or other distribution.  Title for Products purchased from the Store passes to the purchaser at the time of delivery by Kapsul to the freight carrier, but Kapsul or the freight carrier will be responsible for any Product loss or damage that occurs when the Product is in transit to you.

     

    8. Shipping and Delivery

     

    Prices for the Products do not include shipping costs unless stated otherwise, i.e. as part of a special offer or promotional pricing.  Our delivery charges and methods are as described on the Store website from time to time.  The estimated arrival or delivery date is not a guaranteed delivery date for your order.  Refused deliveries will be returned to our warehouse.  It may take up to 60 days for the returned items to be identified as refused and processed for a refund.

    The Products available on the Store have been designed, marketed and sold for use by residents of the United States and Canada, as applicable.  All safety warnings, information, instructions, packaging, in-box materials, mobile apps, and support services are provided only in the English language. The Products available on the Store are not intended for use outside of the United States and Canada.  You are responsible for complying with all applicable laws and regulations of the country for which the Product is destined.  We are not liable or responsible if you break any such law.

     

    9. Installation

     

    There may be laws in the jurisdiction that you install a particular Product applicable to where and how to install that Product.  You should check that you are in compliance with all relevant laws in your jurisdiction.  Kapsul is not responsible for any injury or damage caused by self-installation.  In the event you choose to utilize a third party installer, Kapsul is not responsible for any conduct of or liability associated with these installers. You should do your own diligence of the installers to select one that best fits your needs.

     

    10. Returns for Refund

     

    If, for any reason, you want to return the Product you purchased from the Store for a refund, you must notify us and return the Product no later than 30 days following the date of delivery (the "Refund Period").  The Product is not eligible for a refund after the 30-day period.  To initiate a return, you must inform us of your decision within the Refund Period by contacting Kapsul customer support and emailing support@kapsulair.com, and clearly stating your desire to return the Product.  To be eligible for a refund, the Product must be unused and in the same condition that you received it, and in its original packaging. Although it will not affect your right to a refund, please include details on where and when you purchased the Product and your reason for returning the Product.  You will be solely responsible for all costs associated with returning the Product to us (including uninstallation and the cost of shipping the Product back to Kapsul).  We will refund the price you paid for the Product, exclusive of the original delivery cost, less the value of any promotional merchandise or discounts you received.  If you purchase a Bundle (multiple Products sold together at a discount), we will not provide a refund if you return only part of the Bundle, and you must return all of the Products sold together in that Bundle in order to receive any refund.  We may reduce the amount of your refund to reflect any reduction in the value of the Product, as determined in our sole discretion, caused by your handling them in a way which goes beyond what is necessary to establish their nature, characteristics and functioning (e.g., beyond what would normally be permitted in a shop).  All returns and refunds are further subject to the terms and conditions of Kapsul’s then-current Refund Policy.  

    We will process the refund due to you as soon as possible and, in any case, within 45 days from the date of receipt by Kapsul of the returned Product.

     

    11. Proprietary Rights

     

    You acknowledge and agree that Kapsul is the exclusive owner of and retains all rights and title to all trademarks, service marks, trade names, patents, copyright, trade secrets, and other intellectual property rights in relation to the Products and Additional Services (collectively, the “Kapsul IP”), and that no right, title, or interest in any Kapsul IP is transferred to you or any third party by the sale of Products or Additional Services.  All information you receive from Kapsul in respect of our business or technology shall be deemed to be confidential and you shall not use or disclose such information with our Kapsul’s express prior written consent, unless such information is publically known through no breach of this confidentiality obligation.  You shall not take any actions with the intent or effect of: (a) tampering with, disabling, copying, modifying, distributing, decompiling, disassembling, reverser-engineering, violating, removing, or misappropriating any Products of Additional Services; (b) merging or bundling any Products or Additional Services with, or using Products or Additional Services to create, any other product or service; (c) attempt to derive the source code or the underlying algorithms, protocols, or technologies of the Products or Additional Services; or (d) otherwise infringing or misappropriating any of Kapsul’s IP rights.

     

    12. Disclaimers

     

    To the extent permitted by applicable law, the Store, and all content available on the Store, is provided on an "as-is" basis without warranties or conditions of any kind, either express or implied, including, without limitation, warranties of title or implied warranties of merchantability or fitness for a particular purpose.  All Products and Additional Services purchased through the Store are provided on an "as-is" basis unless otherwise noted in the limited Product Warranty included with a Product.  With respect to Kapsul Products, you may choose whether to make a claim under these Sales Terms or the Product Warranty or both, but you may not recover twice in respect of the same loss. To initiate a return or repair under the Product Warranty for your Kapsul Product, you should contact Kapsul customer support.

     

    Your use of any Products or Additional Services is at your own discretion and risk.  You will be solely responsible for (and Kapsul disclaims) any and all loss, liability, or damages resulting from your use of a Product or Additional Service, including any personal injury, damage or loss to your electrical system or home, the Product, other peripherals connected to the Product, computer, mobile device, and all other individuals, property, and pets in your home.  Unless explicitly promising a "guarantee," Kapsul does not guarantee or promise any specific level of energy savings or other monetary benefit from the use of a Product or Additional Services or any feature of them.  Actual energy savings and monetary benefits vary with factors beyond Kapsul’s control or knowledge.

     

    13. Limitation of Liability

     

    In no event shall Kapsul, our directors, officers, employees, affiliates, partners, agents, contractors, suppliers, service providers, or licensors be liable to you or any third party for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability, or otherwise, arising from your use of, or inability to use, any Product or Additional Service, or for any other claim related in any way to the Products or Additional Services, including, but not limited to, any errors or omissions in the Products or Additional Services, or any loss or damage of any kind incurred as a result of the use of our Products or Additional Services, even if advised of their possibility.  Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.  Notwithstanding the foregoing, the total liability of Kapsul for any reason related to the Products or Additional Services or under these Sales Terms shall not exceed the total amounts paid by you to Kapsul in connection with the subject matter of the particular dispute.  This limitation is cumulative and will not be increased by the existence of more than one incident or claim.  Kapsul disclaims all liability of any kind of Kapsul’s licensors, suppliers, and service providers. To the extent that any injury, loss, or claim is based on your purchase of or use of our Products, you acknowledge and agree that Kapsul may repair or replace, at Company’s option, any defective part in the Product or provide you with a refund under the terms of the applicable Product Warranty or return policy, and this remedy is intended to be your sole and exclusive remedy under these Sales Terms and any other agreement between you and Kapsul.

     

    14. Governing Law, Arbitration, and Class Action Waiver

     

    PLEASE READ THIS SECTION CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS.

     

    These Sales Terms shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard to its provisions governing conflicts of law. 

     

    You agree that in the event of any dispute between you and the Kapsul, you will first contact Kapsul and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, arbitration pursuant to the procedures set forth below. 

     

    After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of our products or services, including the Products and Additional Services, or otherwise arising under these Sales Terms, will be resolved by arbitration.  You and Kapsul agree that any Claim will be settled by final and binding arbitration, as administered by the American Arbitration Association (AAA) under its then current commercial arbitration rules (the “AAA Rules”).  Arbitration will be conducted in Philadelphia, PA in the English language by a single arbitrator in accordance with the AAA Rules.  Any judgment or award rendered shall be final and conclusive to the parties, and may be entered in any court that has jurisdiction.  Any arbitration under these Terms will take place on an individual basis – class arbitration and class actions are not permitted.  You understand that by agreeing to these Terms, you and Kapsul are each waiving the right to trial by jury or to participate in a class action, class arbitration, consolidated, multi-district, or collective action, or private attorney general action lawsuit.  Notwithstanding the foregoing, you and Kapsul will each have the right to bring an action in the state courts of the Commonwealth of Pennsylvania or the United States District Court for the Eastern District of Pennsylvania for injunctive or other equitable or conservatory relief pending a final decision by the arbitrator, for Kapsul to protect its confidential information or intellectual property rights, or to remove you as a participant in any class action, class arbitration, consolidated, multi-district, or collective action, or private attorney general action lawsuit. You hereby consent to the exclusive jurisdiction of these courts for such actions.  You and Kapsul shall each bear and pay its own fees associated with the arbitration, including any filing, administrative, arbitrator fees, attorneys’ fees, and experts’ fees. 

     

    You have the right to opt-out and not be bound by the arbitration provisions set forth in these Terms by sending written notice of your decision to opt-out to legal@kapsulair.com or to the United States mailing address listed at the bottom of these Terms.  The notice must be sent to Kapsul within 30 days of the date you first accepted these Sales Terms, unless a longer period is required by applicable law, otherwise you shall be bound to arbitrate disputes in accordance with these Sales Terms.  The opt-out notice must include: (a) your name; (b) the email address associated with your Kapsul account; (c) your mailing address; and (d) a statement that you do not wish to resolve disputes with Kapsul through arbitration.  This notification affects these Sales Terms only; if you previously entered into other arbitration agreements with Kapsul or enter into other such agreements in the future, your notification that you are opting out of the arbitration provision in these Sales Terms  shall not affect the other arbitration agreements between you and Kapsul.  If you opt-out of these arbitration provisions, Kapsul also will not be bound by them.      

     

    Any claim you may have against Kapsul must be brought within six (6) months after the cause of the claim arises, or such claim is barred.  A printed version of these Terms and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.  Please contact Kapsul if you wish to receive a printed copy of these Terms.

     

    15. Your Data

     

    By placing an order for Products or Additional Services, you agree and understand that Kapsul may store, share, process, and use data collected from your order form or phone/fax/email order for the purposes of processing the order, providing support for the Products or Additional Services, and providing you with information about your purchase or other Kapsul Products and Additional Services.  Kapsul will protect your information in accordance with Kapsul's Privacy Policy.  Kapsul works with other companies that help Kapsul provide Products to you, such as marketing partners, freight carriers, and credit card processing companies, and Kapsul may have to share certain information with these companies for this purpose.

     

    16. Miscellaneous

     

    (a) Term Updates.  We may update, change, or replace these Sales Terms from time to time in our sole discretion.  The latest Sales Terms will be posted on the Store website.  Therefore, please visit the “Terms of Service,” “Privacy Policy,” “Terms of Sale,” and “Warranty & Refund Policy” areas each time you visit the Site and inspect the “Last Updated” date at the beginning of each document, in order to check for updates or changes and to familiarize yourself with the then-current terms.  Your access or use of the Store or purchase of Products or Additional Services following the posting of the updated Sales Terms constitutes your agreement to be bound by, and to act in accordance with, the then-current Sales Terms. 

    (b) Electronic Communications.  You are communicating with Kapsul electronically when you use the Store or send email to Kapsul. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. When you order in the Store, we collect and store your email address.  From that point forward, your email address is used to send you information about Kapsul’s products and services unless you opt-out of such emails using the opt-out link in the emails.

    (c) Force Majeure.  We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a contract that is caused by an act or event beyond our reasonable control, including without limitation 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, stay at home orders, 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.

    (d) Injunctive Relief.  You agree that a breach of these Sales Terms with respect to Kapsul’s confidential information or intellectual property rights, whether threatened or actual, will cause irreparable injury to Kapsul, for which monetary damages would not be an adequate remedy and Kapsul shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction, without the necessity of posting band, other security, or proof of damages. 

    (e) Assignment.  These Terms are for the benefit of the parties hereto as well as Kapsul’s licensors.  Accordingly, these Terms are personal to you, and you may not assign your rights or obligations to any other person or entity without Kapsul’s prior written consent. Kapsul may assign its rights or obligations under these Sales Terms to an Affiliate or to any successor to substantially all of its assets or business. 

    (f) Waiver.  Failure by Company to insist on strict performance of any of the terms and conditions of these Terms will not operate as a waiver by Company of that or any subsequent default or failure of performance.

    (g) Severability.  If any provision, or part thereof, contained in these Terms is determined to be void, invalid, or otherwise unenforceable by a court of competent jurisdiction or on account of a conflict with an applicable government regulation, such determination shall not affect the remaining provisions, or parts thereof, contained herein and the illegal, invalid, or unenforceable clause shall be modified in compliance with applicable law in a manner that most closely matches the intent of the original language.  

    (h) Survivability.  The provisions relating to payments, Kapsul’s proprietary rights, disclaimers of warranty, limitation of liability, governing law, arbitration, class action waiver, and any other sections which by their nature should survive the termination of these Sales Terms will continue in full force and effect subsequent to and withstanding any termination of these Sales Terms.  Termination will not limit any of the Kapsul’s other rights or remedies at law or in equity.   

    (i) Independent Parties.  No joint venture, partnership, employment, or agency relationship exists between you and Kapsul as result of these Sales Terms or your purchase of the Products or Additional Services.

    (j) Headings.  Headings used herein are for convenience only and shall not be read to have any legal effect.  

    (k) Entire Agreement.  These Sales Terms, along with Kapsul’s Terms of Service, Warranty & Return Policy, and Privacy Policy, represents the entire agreement between you and Kapsul with respect to purchase and use of the Products and Additional Services, and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written between you and Kapsul with respect to the Products and Additional Services.  

    (l) California Residents.  If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit or the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.

    (m) How to Contact Us.  You may contact us regarding the Products or these Sales Terms at: Kapsul, 2212 Walnut Street, 1st Floor, Philadelphia, PA 19103 or by email at support@kapsulair.com.