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    Terms of Service

    Last updated: May 14, 2020

     

    Overview

     

    These Terms of Service, including those additional terms and conditions and policies referenced herein or available by hyperlink (together, the “TOS” or “Terms”), describe your rights and responsibilities concerning your use of the websites located at kapsulair.myshopify.com and kapsulair.com (together with any successor site, the “Site”), the related mobile application (the “App”), and related content, software, applications, widgets, materials, or services, including any support services provided to you (collectively, the “Connected Offerings”).  These Terms also govern your use of any hardware products offered by us (the “Products”), which may be used in connection with the Services.  The Connected Offerings and the Products, along with any updates, new features, or tools added to any of the foregoing, are referred to collectively as the “Services.”

     

    These Terms govern your use of the Services.  Your purchase of a Product is also governed by the applicable limited Warranty and Refund Policy applicable to such Product (the “Product Warranty”) and our Terms of Sale (the “Terms of Sale”).  Our Privacy Policy describes how we handle the information you provide to us when you use the Services. For an explanation of our privacy practices, please visit our Privacy Policy.

     

    The 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 user of the Services.  If you use the 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 Terms; and (b) you agree to these Terms on the entity's behalf.

     

    PLEASE READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS CONTAINED IN THESE TOS.  BY ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TOS.  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 Terms at any time on this page.  We reserve the right to update, change, or replace any part of these Terms by posting updates or changes to our Site.  It is your responsibility to check this page periodically for updates or changes.  Your continued use of or access to the Site or Services following the posting of any updates or changes constitutes acceptance of those updates or changes. 

     

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    Please note that Section 15 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 15.

    _____________________________________________________________________

     

    1. Online Store Terms

     

    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 to you.

     

    When preordering or purchasing Products, 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 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 are subject to change without notice.  We reserve the right to modify, discontinue, or refuse the Service (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.

     

    2. Accounts and Accuracy of Billing Information

     

    To access certain of our Services, such as the App or to register the Products, you may be asked to create an account (your “Account”) and to provide certain registration details or other information, including your name, email address, phone number, address, and a password for the Account.  Some Products may require you to enter a product code from or in the relevant Connected Offerings in order to utilize the available functionalities of the Connected Offerings in connection with the Products.  You agree to provide us with current, accurate, complete, and updated information for your Account.  You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.  You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password.  We are not liable for any acts or omissions by you in connection with your Account.  You must immediately notify us at support@kapsulair.com if you know or have any reason to suspect that your Account or password have been stolen, misappropriated, or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account. 

     

    We reserve the right to refuse any order you place with us.  We may, in our sole discretion, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, or orders that use the same billing or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the email, billing address, or phone number provided at the time the order was made.  We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

     

    3. Products

     

    You are solely responsible for properly installing the Products pursuant to the installation instructions accompanying the applicable Product and for conducting appropriate testing of the Products once installed to confirm that the Products are functioning as intended.  You agree to comply with all applicable building codes in installing the Products.  We are not responsible for damages resulting from any improper use, installation, or maintenance of the Products.

     

    You have the option of using the Products in connection with the Connected Offerings, such as the App.  If you choose to not access the Connected Offerings, the Products may still be used but will have limited functionality. 

     

    The Products may use certain open or commonly available standards to access the Connected Offerings that are made available by third parties, including Wi-Fi, Bluetooth, virtual assistants (e.g., Amazon Alexa and Google Home), and IP devices.  NOTE THAT ANY SMART, CONNECTED OR OTHER DEVICE AND RELATED SERVICES THAT ARE NOT MADE AVAILABLE BY US (“THIRD-PARTY PRODUCTS AND SERVICES”) AND WHICH ARE NOT DESIGNATED BY US AS BEING COMPATIBLE WITH THE PRODUCTS MAY NOT WORK WITH THE PRODUCTS, MAY CAUSE THE PRODUCTS TO HAVE LIMITED FEATURES OR FUNCTIONALITY OR MAY OTHERWISE CAUSE ERRORS TO THE PRODUCTS.  YOU AGREE ONLY TO USE THIRD-PARTY PRODUCTS AND SERVICES EXPRESSLY DESIGNATED BY US AS COMPATIBLE WITH OUR PRODUCTS.

     

    We have made every effort to display as accurately as possible the colors and images of our Products that appear at our online store. We cannot guarantee that your computer monitor's display of any color will be accurate.

     

    We reserve the right, but are not obligated, to limit the sales of our Products or Connected Offerings to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any Products or Connected Offerings that we offer.  All descriptions or pricing of Products are subject to change at any time without notice, at our sole discretion.  Any offer for any Product or Connected Offerings made on this Site is void where prohibited.

     

    We do not warrant that the quality of any Products or Connected offerings will meet your expectations, or that any errors will be corrected, except as otherwise expressly set forth in the applicable Product Warranty.

     

    4. Services

     

    Subject to your compliance with this TOS, the Kapsul hereby grants to you, a limited, personal, non-assignable, non-sublicensable, non-transferrable, and non-exclusive license to access and use the Services (and to download a single copy of the App).  We may modify, amend, alter, supplement or replace the Services from time to time, in whole or in part.  This TOS is also expressly made subject to any applicable export laws, orders, restrictions, or regulations.  You shall not export the Services without our prior written consent and complying with such laws, orders, restrictions, or regulations.  

     

    You acknowledge and agree that use of the Internet and access to or transmissions or communications with the Connected Offerings is solely at your own risk.  While we have endeavored to create secure and reliable Connected Offerings, you should understand that the confidentiality of any communication or material transmitted to or from the Connected Offerings over the Internet or other form of global communication network cannot be guaranteed.  Accordingly, Kapsul is not responsible for the security of any information transmitted to or from the Connected Offerings.  You agree to assume all responsibility concerning activities related to your use of the Connected Offerings.  Any support, training, updates, upgrades, or maintenance of or for the Connected Offerings shall only be available through the sole discretion of Kapsul and provided without warranty of any kind.

     

    We are not responsible if information made available through the Services is not accurate, complete or current. The material in the Connected Offerings is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete, or more timely sources of information.  Any reliance on the material in the Connected Offerings is at your own risk.

     

    The Connected Offerings may contain certain historical information, which by its nature is not current and is provided for your reference only.  We reserve the right to modify the contents of the Connected Offerings at any time, but we have no obligation to update any information in the Connected Offerings.  You agree that it is your responsibility to monitor changes to our Connected Offerings.

     

    5. Restrictions

     

    You agree that you will not:

     

    (a) modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Service;

    (b) duplicate, decompile, reverse engineer, disassemble or decode the Service (including any underlying idea or algorithm), or attempt to do any of the same;

    (c) use, reproduce or remove any copyright, trademark, trade names, slogan, logos, images, service marks or other proprietary notations displayed on or through Service;

    (d) frame or utilize any framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout or form) of Halo without our express consent;

    (e) attempt to gain unauthorized access to, interfere with, damage or disrupt the Service, accounts registered to other users, or the computer systems or networks connected to the Service;

    (f) circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Service;

    (g) use any robot, spider, crawlers or other automatic device, process, software or queries that intercepts, “mines,” scrapes or otherwise accesses the Service to monitor, extract, copy or collect information from or through the Service, or any manual process to do the same;

    (h) introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful;

    (i) use the Service for illegal, harassing, unethical, or disruptive purposes;

    (j) violate any applicable law or regulation in connection with your use of the Service; or

    (k) use the Service in any way not expressly permitted by these Terms of Use.

     

    6. App Usage

     

    Use of the App.  You are responsible for providing the mobile device, wireless service plan, software, Internet connections and/or other equipment or services that you need to download, install and use the App.  We do not guarantee that the App can be accessed and used on any particular device or with any particular service plan.  We do not guarantee that the App or will be available in, or that orders for Products can be placed from, any particular geographic location. As part of the Services and to update you regarding the status of deliveries, you may receive push notifications, local client notifications, text messages, picture messages, alerts, emails or other types of messages directly sent to you in connection with the App (“Push Messages”). You acknowledge that, when you use the App, your wireless service provider may charge you fees for data, text messaging and/or other wireless access, including in connection with Push Messages. You have control over the Push Messages settings, and can opt in or out of these Push Messages through the Services or through your mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages). Please check with your wireless service provider to determine what fees apply to your access to and use of the App, including your receipt of Push Messages from the Kapsul. You are solely responsible for any fee, cost or expense that you incur to download, install and/or use the App on your mobile device, including for your receipt of push messages from the Kapsul.

     

    Mobile software from the Apple App Store.  The following terms and conditions apply to you only if you are using the App from the Apple App Store. To the extent the other terms and conditions of these Terms are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to the App from the Apple App Store. You acknowledge and agree that these Terms are solely between you and the Kapsul, not Apple, and that Apple has no responsibility for the App or content thereof. Your use of the App must comply with the App Store’s applicable terms of use. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms. You and the Kapsul acknowledge that Apple is not responsible for addressing any claims of yours or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (a) product liability claims, (b) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation. You and the Kapsul acknowledge that, in the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, the Kapsul, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You must comply with applicable third party terms of agreement when using the App. You and the Kapsul acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as they relate to your use of the App, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.

     

    7. Proprietary Rights

     

    These Terms provide only a limited license to access and use the Services.  Accordingly, you expressly acknowledge and agree that Kapsul transfers no ownership or intellectual property interest or title in and to the Services to you or anyone else.  All text, graphics, user interfaces, visual interfaces, photographs, sounds, artwork, computer code (including html code), programs, software, products, information, and documentation as well as the design, structure, selection, coordination, expression, "look and feel," and arrangement of any content contained on or available through the Services, unless otherwise indicated, are owned, controlled, and licensed by Kapsul and its successors and assigns and are protected by law including, but not limited to, United States copyright, trade secret, patent, and trademark law, as well as other state, national, and international laws and regulations.  Except as expressly provided herein, Kapsul does not grant any express or implied right to you or any other person under any intellectual or proprietary rights.  Accordingly, your unauthorized use of the Kapsul Website may violate intellectual property or other proprietary rights laws as well as other laws, regulations, and statutes.  Please be aware that Kapsul does enforce its intellectual property rights to the fullest extent of the law and, in particular and without limitation, with respect to illegal use of terms confusingly similar to any of Kapsul's trademarks.  Our current United States and international patents are listed at our patent page at www.kapsulair.com. 

     

    Other than any third party content linked to or provided through the Connected Offerings, Kapsul is the exclusive copyright holder of the Connected Offerings and its contents as a collective work or compilation and in the selection, coordination, arrangement, and enhancement of the content of the Connected Offerings.  Any downloadable or printable programs, directories, databases, information, or materials available through the Connected Offerings and all copyrights, trade secrets, and know-how related thereto, unless otherwise indicated, are owned by Kapsul.  Kapsul, the Kapsul logo, KapsulTM, Cool, RedefinedTM, and all other names, logos, and icons identifying Kapsul and its Products and Services are proprietary trademarks of Kapsul, and any use of such marks, including, without limitation, as domain names, without the express written permission of Kapsul is strictly prohibited.  Other service and entity names mentioned herein may be the trademarks or service marks of their respective owners.

     

    8. Comments, Feedback, and other Submissions

     

    We welcome your comments, feedback, and suggestions about our Products or Connected Offerings.  By transmitting any comment, feedback, suggestions, information, material, or other content (collectively, "Feedback") to Kapsul, you represent and warrant that such Feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that you have all rights necessary to convey to Kapsul and enable Kapsul to use such Feedback.  In addition, any Feedback received through the Connected Offerings or otherwise provided to Kapsul, including through email, social media, or other electronic means, will be deemed to include a royalty-free, perpetual, irrevocable, transferable, sublicensable, non-exclusive right and license for Kapsul to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, and display (in whole or in part) worldwide, or act on such Feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content, and you hereby waive any claim to the contrary.  

     

    You agree that your Feedback will not contain disparaging, libelous, unlawful, abusive, or obscene material, or contain any computer virus or other malicious code that could in any way affect the operation of the Services or any related website.  You shall not use a false email address, pretend to be someone other than yourself, or otherwise mislead us or third parties as to the origin of any Feedback.  You are solely responsible for any Feedback you provide and their accuracy.  We take no responsibility and assume no responsibility for any Feedback provided by you or any third party.

     

    9. Postings

     

    The Site and other Connected Offerings may contain comment areas, user reviews, surveys, questionnaires, blogs, and other interactive features where you can share and display certain postings.  To the extent that the Connected Offerings contain any such communication forums (collectively, “Forums”), you agree that you will not post or transmit any of the following materials on Kapsul’s Forums:   

    (a) statements or material that violates, infringes, or misappropriates the intellectual property rights, trade secrets, or privacy of others, or is otherwise in violation of applicable laws or regulations;

    (b) statements or materials that defames, harasses, abuses, stalks, threatens, intimidates, or in any way violates the rights of others;

    (c) statements or material that contains or constitutes false, misleading, disparaging statements relating to Kapsul, its Products, or Services;

    (d) statements or materials that contains confidential information of Kapsul or any third party to which you owe an obligation of confidentiality;

    (e) statements or material that contain vulgar, obscene, racially offensive, profane, or otherwise objectionable language or images that typically would not be considered socially or professionally responsible or appropriate in person;

    (f) statements or material that impersonates any other person or entity, whether actual or fictitious, including, without limitation, employees and representatives of Kapsul;

    (g) statements or material that misrepresents your affiliation with any entity or Kapsul; or

    (h) anything that violates the privacy or publicity rights of any other person, including, without limitation, displaying any personal identifying information of another individual.

     

    All postings or other content you provide in the Forums constitute Feedback to Kapsul, and accordingly is subject to all of the prohibitions, rights, and licenses applicable to Feedback as set forth above in Section 8 (Comments, Feedback, and other Submissions).  You acknowledge that all postings in Forums are non-confidential and that we have no control over the extent to which any information or content may be used by any person or entity once it is posted or displayed.  Accordingly, notwithstanding the rights and licenses granted to Kapsul, it is understood that by merely permitting your information, content, and materials to appear on the Forums, we have not become and is not a publisher of such information, content, and materials and is merely functioning as an intermediary to enable you to provide and display such postings.  Moreover, we assume no responsibility for the deletion of or failure to store any posting and recommends that you do not post, display, or transmit any confidential or sensitive information.  We are not responsible for screening, policing, editing, or monitoring your or other postings to the Forums.  Nevertheless, Kapsul reserves the right to delete or take other action with respect to any postings (or parts thereof) that we believe in good faith violate these Terms or are potentially unlawful or harmful to Kapsul or its Products, Services, or goodwill.

     

    10. Personal Information

     

    You acknowledge and agree that the operation of the Services requires the submission, collection, use, processing, and dissemination of various personal information, including personally identifiable information.  Accordingly, by using the Services or otherwise submitting personal information to Kapsul, you thereby accept our personal information practices, as set forth in our Privacy Policy.

     

    11. Third Party Links and Products

     

    We may provide links or other access to third party websites, tools, or products, over which we neither monitor nor have any control or input.  Moreover, these links do not imply an endorsement with respect to any third party or the content, products, or services provided by any third party.  Accordingly, we expressly disclaim any responsibility for the content, the materials, the accuracy of the information, and the quality of the content, products, or services provided by, available through, or advertised on these third party properties, and we are not liable for any harm or damages related to the purchase or use of content, products, services, or any other transactions made in connection with any third party properties.  Please carefully review the third party’s policies and practices and ensure you understand them before you engage in any transaction.  Your correspondence or any other dealings with third parties are solely between you and such third party.

     

    12. Disclaimers

     

    EXCEPT AS EXPRESSLY SET FORTH IN ANY APPLICABLE PRODUCT WARRANTY, THE SERVICES AND ALL INFORMATION, MATERIALS, PROGRAMS, SOFTWARE, AND HARDWARE ASSOCIATED WITH THE SERVICES ARE PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS, AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES.  COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE RESULTS THAT CAN BE ACHIEVED FROM OR THE SUITABILITY, COMPLETENESS, TIMELINESS, RELIABILITY, LEGALITY, OR ACCURACY OF THE SERVICES FOR ANY PURPOSE, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, NON-INFRINGEMENT, OR ANY OTHER IMPLIED WARRANTY UNDER APPLICABLE LAW.  COMPANY ALSO MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICES WILL OPERATE IN AN ERROR FREE, UNINTERRUPTED, TIMELY, OR SECURE MANNER OR THAT ANY FILES OR INFORMATION THAT YOU OBTAIN THROUGH THE SERVICES WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES.  YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SERVICES IS AT YOUR SOLE RISK.

     

    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 Service, or for any other claim related in any way to the Service, including, but not limited to, any errors or omissions in the Service, or any loss or damage of any kind incurred as a result of the use of our Products or any content or information posted, transmitted, or otherwise made available via the Service, 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 Services or under these TOS shall not exceed the total amounts paid by you to Kapsul in connection with the subject matter of the particular dispute.  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 Kapsul’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 TOS and any other agreement between you and Kapsul.

     

    14. Indemnification

     

    You agree to defend, indemnify, and hold harmless Kapsul and our parents, subsidiaries, affiliates, and all of their respective employees, agents, directors, officers, shareholders, service providers, contractors, suppliers, successors, and assigns from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses) relating to or arising from your breach of these Terms or the documents they incorporate by reference, or your violation of any law or the rights of a third party.

     

    15. Governing Law, Arbitration, and Class Action Waiver

     

    These 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 the 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 Services, or otherwise arising under these Terms, will be resolved by arbitration.  You and the 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 the 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 the Kapsul will 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 you registered to use the Services or agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in accordance with these 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.  If you opt-out of these arbitration provisions, the 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.

     

    16. Term and Termination

     

    These Terms will take effect at the moment you access the Site or otherwise use the Services and is effective until terminated as set forth below.  In addition, Kapsul reserves the right at any time and on reasonable grounds, which shall include, without limitation, any reasonable belief of fraudulent or unlawful activity or actions or omissions that violate these Terms, to deny your access to the Connected Offerings or to any portion thereof in order to protect its business, rights, reputation, or goodwill, and immediately terminate these Terms without notice.  These Terms will also terminate automatically upon your breach thereof, subject to the survival rights of certain provisions identified below.  You may also terminate these Terms at any time by ceasing to use the Services and providing us with written notification.  Upon termination, you must destroy all copies of any aspect of the Connected Offerings in your possession, and may no longer use the Services.  Your obligations and liabilities that were incurred prior to the termination of these Terms, including without limitation payment obligations, shall survive the termination for all purposes.  The provisions relating to Kapsul’s proprietary rights, feedback, indemnity, 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 Terms will continue in full force and effect subsequent to and withstanding any termination of these Terms.  Termination will not limit any of the Kapsul’s other rights or remedies at law or in equity.

     

    17. Miscellaneous

     

    (a) Term Updates.  We may update, change, or replace these Terms from time to time in our sole discretion.  The latest TOS will be posted on the Site.  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 Services following the posting of the updated TOS constitutes your agreement to be bound by, and to act in accordance with, the then-current TOS.    

    (b) Termination of License.  If you breach any of the provisions of these Terms, all licenses granted by Kapsul will terminate automatically. 

    (c) Injunctive Relief.  You agree that a breach of these Terms, 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. 

    (d) 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 Terms to an Affiliate or to any successor to substantially all of its assets or business. 

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

    (f) 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.  

    (g) Independent Parties.  No joint venture, partnership, employment, or agency relationship exists between you and Kapsul as result of these Terms or your utilization of the Services.

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

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

    (j) 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.

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