PRE-ORDER TERMS & CONDITIONS
1. PRE-ORDER RESERVATION: When placing a Pre-Order for Empath Products, you will be required to provide certain information, such as your name, address and billing information. You represent and warrant that all such information is accurate, and you shall ensure that such information is kept current. Empath shall have no responsibility or liability for inaccurate information or information that later becomes outdated, and shall have no obligation to make efforts to determine the correct contact or shipping information. You can update your information at any time prior to your product being shipped by sending an e-mail to firstname.lastname@example.org. You acknowledge and agree that Empath may decline or delay reservations to avoid oversubscription or as it deems appropriate, provided that we will make efforts to inform you within two (2) weeks of our receipt of your Pre-Order, and that you will be entitled to a full refund of the purchase price.
2. PAYMENT: You will be charged the full price (plus any applicable taxes) of the Products at the time of placing the Pre-Order. If Empath is unable to commence shipping the Products on or before the one-year anniversary of your placing the Pre-Order, Empath shall process a full refund to you. Your placing of a Pre-Order constitutes your express agreement to our charging your payment instrument the full price (plus any applicable taxes) of the Products at such time.
3. ESTIMATED DELIVERY SCHEDULE: Although we will endeavor to begin delivering Products as soon as reasonably practicable, you understand and agree that there may be delays. An estimated time of delivery (ETD) is only an estimate, is subject to change, and Empath does not represent or warrant that it will be able to ship the Product by the estimated date. As a result, in the event that a delay arises and the estimated shipment and/or release of the product is not met, Empath is not responsible for any damages that may occur due to the delay, nor shall it be obligated, except as set forth in these Terms, to provide any discounts, refunds or credits due to any such delays. We will provide you periodic updates with respect to such delivery schedule. If for any reason you decide that you do not wish to continue to wait for your Product, you may cancel your reservation as provided below.
4. CANCELLATION: You or Empath may cancel this reservation by terminating the Pre-Order at any time for any reason prior to our notice to you that your Product is ready for delivery. You may cancel your Pre-Order by sending an email to email@example.com. Upon any cancellation of a Pre-Order, you will obtain a refund of the purchase Price without interest.
5. DISCLAIMER: EMPATH DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROTOTYPE PRODUCT DISPLAYED BY EMPATH ON ITS WEBSITE. YOU UNDERSTAND AND AGREE THAT THE PRODUCT, ITS DESIGN AND TECHNICAL FEATURES ARE CURRENTLY UNDER DEVELOPMENT AND THAT THE PRODUCT THAT MAY BE AVAILABLE FOR PURCHASE BY YOU MAY BE MATERIALLY DIFFERENT FROM THE PROTOTYPE PRODUCT. IF FOR ANY REASON YOU ARE UNHAPPY WITH THE FINAL VERSION OF THE PRODUCT, YOUR SOLE AND EXCLUSIVE REMEDY WILL BE TO CANCEL YOUR PRE-ORDER AS DESCRIBED IN SECTION 4 ABOVE. EMPATH HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THE ONLY PRODUCT WARRANTIES SHALL BE THE LIMITED WARRANTY WHICH SHALL BE PROVIDED AS PART OF EMPATH’S COMMERCIAL TERMS.
6. LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES WILL EMPATH BE HELD LIABLE WITH RESEPCT TO ANY SUBJECT MATTER OF THESE TERMS, UNDER ANY CONTRACT, NEGLIGCENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES. IN THE EVENT EMPATH IS HELD LIABLE FOR ANY DAMAGES ARISING OUT OR RELATED TO THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY WILL BE THE FULL REFUND OF YOUR PURCHASE PRICE WITHOUT INTEREST.
7. LIMITATIONS: SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
IF YOU ARE A NEW JERSEY RESIDENT, THE DISCLAIMER AND LIMITATION OF LIABILITY SECTIONS ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER NEW JERSEY LAW. IF ANY PORTION OF THOSE SECTIONS ARE HELD TO BE INVALID UNDER NEW JERSEY LAW, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTION.
8. COMMERCIAL TERMS OF SERVICE: The purchase and use of the Products (and related services) is subject to additional terms and conditions that will be provided by Empath prior to Product delivery, including with respect to our messaging services, any software included in the Products, data collected by the Product, limited warranties and the like (the “Commercial Terms”). These Terms only apply to the Pre-Order process.
10. CHANGES TO THE TERMS: Empath reserves the right to change any of the Terms for any or no reason. We will provide notice of any material changes in advance and, if you are unhappy with such changes, your sole and exclusive remedy will be to cancel your reservation as described in Section 4 above.
11. MISCELLANEOUS PROVISIONS: These Terms constitute the entire agreement between the parties pertaining to its subject matter and supersede all prior agreements, representations and understandings of the parties. If any provision of these Terms is found by a court of competent jurisdiction or arbitration to be invalid, the parties nevertheless agree that the court or arbitrator should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms shall remain in full force and effect. These Terms shall be governed by and shall be construed in accordance with the laws of the State of California. The venue for any actions relating to the subject matter or enforcement of these Terms shall be in San Mateo County, California, subject to the arbitration agreement below. You may not assign these Terms or any of the rights granted to you hereunder.
12. DISPUTE RESOLUTION BY BINDING ARBITRATION:
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
- Agreement to Arbitrate: This Section 12 is referred to in these Terms as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Empath, whether arising out of or relating to these Terms (including any alleged breach thereof), the Products, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration (as set forth below), rather than a court, except as otherwise provided in this Arbitration Agreement and except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms, you and Empath are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
- Prohibition of Class and Representative Actions and Non-Individualized Relief: YOU AND EMPATH AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND EMPATH AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
- Pre-Arbitration Dispute Resolution: Empath is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Empath should be sent to Empath Interactive, Inc., 1730 S. Amphlett Blvd, Suite 210, San Mateo, California 94402 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Empath and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Empath may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Empath or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Empath is entitled.
- Arbitration Procedures: Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
- Unless Empath and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Empath agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
- Costs of Arbitration: Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $25,000 or less, at your request, Empath will pay all Arbitration Fees. If the value of relief sought is more than $25,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Empath will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Empath will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
- Confidentiality: All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
- Severability: Without limiting the severability provision of the these Terms, if a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than subsection (b) above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless subsection (b) is deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms will continue to apply.
- Future Changes to Arbitration Agreement: Notwithstanding any provision in these Terms to the contrary, Empath agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of Products, you may reject any such change by sending Empath written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement.
2. INFORMATION WE COLLECT: When you interact with us through the Services, we may collect Personal Data and other information from you, as further described below:
- Non-Identifiable Data: When you interact with Empath through the Services, we receive and store certain personally non-identifiable information. Such information, which is collected passively using various technologies, cannot presently be used to specifically identify you. Empath may store such information itself or such information may be included in databases owned and maintained by Empath affiliates, agents or service providers. The Services may use such information and pool it with other information to track, for example, the total number of visitors to our Site, the number of visitors to each page of our Site, and the domain names of our visitors' Internet service providers. It is important to note that no Personal Data is available or used in this process.
- Aggregated Personal Data: In an ongoing effort to better understand and serve the users of the Services, Empath often conducts research on its customer demographics, interests and behavior based on the Personal Data and other information provided to us. This research may be compiled and analyzed on an aggregate basis, and Empath may share this aggregate data with its affiliates, agents and business partners. This aggregate information does not identify you personally. Empath may also disclose aggregated user statistics in order to describe our services to current and prospective business partners, and to other third parties for other lawful purposes.
- Location Information: Our Service may collect and use your location information (for example, by using the GPS on your device) to provide certain functionality of our Service. We may also use your location information in an aggregate way, as described above in the “Aggregated Personal Data” section.
4. OUR DISCLOSURE OF YOUR PERSONAL DATA AND OTHER INFORMATION: Empath is not in the business of selling your information. We consider this information to be a vital part of our relationship with you. There are, however, certain circumstances in which we may share your Personal Data with certain third parties without further notice to you, as set forth below:
- Business Transfers: As we develop our business, we might sell or buy businesses or assets. In the event of a corporate sale, merger, reorganization, dissolution or similar event, Personal Data may be part of the transferred assets.
- Agents, Consultants and Related Third Parties: Empath, like many businesses, sometimes hires other companies to perform certain business-related functions. Examples of such functions include mailing information, maintaining databases and processing payments. When we employ another entity to perform a function of this nature, we only provide them with the information that they need to perform their specific function.
- Legal Requirements: Empath may disclose your Personal Data if required to do so by law or in the good faith belief that such action is necessary to (i) comply with a legal obligation, (ii) protect and defend the rights or property of Empath, (iii) act in urgent circumstances to protect the personal safety of users of the Services or the public, or (iv) protect against legal liability.
You may also have the option of posting your Services activities or messages to Social Networking Services when you access content through the Services; you acknowledge that if you choose to use this feature, your friends, followers and subscribers on any Social Networking Services you have enabled will be able to view such activity or messages.
10. SECURITY: Empath takes reasonable steps to protect the Personal Data provided via the Services from loss, misuse, and unauthorized access, disclosure, alteration, or destruction. However, no Internet or email transmission is ever fully secure or error free. In particular, email sent to or from the Services may not be secure. Therefore, you should take special care in deciding what information you send to us via email. Please keep this in mind when disclosing any Personal Data to Empath via the Internet.
11. OTHER TERMS AND CONDITIONS: Your access to and use of the Services is subject to all other terms and policies made available at www.elfkins.com.
13. ACCESS TO INFORMATION; CONTACTING EMPATH: To keep your Personal Data accurate, current, and complete, please contact us as specified below. We will take reasonable steps to update or correct Personal Data in our possession that you have previously submitted via the Services.
You may contact us as follows: email@example.com.