BY PURCHASING OR USING THE PRODUCT, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT. IF YOU DO NOT AGREE TO THE AGREEMENT, DO NOT PURCHASE OR USE OUR PRODUCT.
Use of the Product; Grant of License.
You shall use the Product in accordance with our instructions. Subject to the terms of these Product Terms, we grant you a non-exclusive, limited license to use the operating system and firmware embedded in the Product (the “Embedded Software”) solely for the purpose of operating the Product in the manner intended.
You agree not to (i) remove Embedded Software from any applicable Products, or transfer it to any other device, or (ii) copy, modify, reverse engineer, decompile, or disassemble the Product, the Embedded Software, or any portion thereof. We may, from time to time, make updates or upgrades to the Embedded Software available to you. Any and all of such updates or upgrades shall be deemed the Embedded Software, and shall be subject to these Product Terms. You acknowledge that, as between you and goTenna, we and/or our licensors own all right, title, and interest in and to the Product including, where applicable to the Product, the Embedded Software, and all intellectual property related thereto.
Except for the limited license granted in this Section, we do not grant you a license to our intellectual property, whether express, implied, by estoppel or otherwise, or grant you the right to make or have made any Product or the Embedded Software or to use the Product or Embedded Software beyond the scope of these Product Terms. Nothing herein limits our ability to enforce our intellectual property rights. You are solely responsible for making sure that the way you use the Product including the Embedded Software complies with applicable laws, regulations and governmental policies. It is solely your responsibility to make sure the Product including the Embedded Software is suitable for your particular use.
LIMITED ONE-YEAR WARRANTY.
Except as set forth below, goTenna warrants to the original purchaser (“Purchaser”) and/or the original end user (“End User” and together with Purchaser, the "Customer") of the Product that the Product will be free from defects in material and workmanship (the “Limited Warranty”) for a period of one (1) year from the date of delivery of the Product to Customer (“Limited Warranty Period”). If goTenna determines, in its sole discretion, that the returned Product is defective and satisfies the conditions of this Warranty, then goTenna shall provide Customer with a replacement Product at no additional charge for the Product, within a commercially reasonable period of time. Unless otherwise notified by goTenna, you are responsible for returning the Product to goTenna at your expense, and for shipping costs associated with the replacement Product. The replacement may be a refurbished Product and not a new Product. Except where prohibited by applicable law, this warranty is limited to Customer, and is not assignable or transferable to any subsequent user or owner of the Product or any other third party. ANY CHANGE OR ALTERATION TO THIS LIMITED PRODUCT WARRANTY MUST BE AUTHORIZED IN WRITING BY GOTENNA.
This Limited Warranty does not cover Product accessories such as chargers, modifications, etc., any services offered to you by goTenna or any third party in connection with the Product, or blemishes, marring of appearance or general wear and tear.
This Warranty will be void and of no effect, and goTenna will have no liability hereunder for any of the following Product issues:
- damage or defects to the Products caused by abuse, accident, neglect, improper handling, misapplication, or by failure to use the Product in accordance with an instructions for use that are provided with the Product;
- cosmetic damage, including, but not limited to, scratches or other physical damage to the surface of the Product;
- damage caused by exposure to moisture, dampness, sand, dirt, extreme temperatures or other extreme environmental conditions that exceeds the stated limits of the Product set forth in the Product specifications available on our Site;
- normal wear and tear of Product use;
- damage caused by unauthorized opening, repair, or modification;
- the Embedded Software, including modifications to, or removal of, the Embedded Software or any other software;
- damage caused by fire, flood or other external causes;
- you are not the End User for use of the Product;
- any issues related to the App used in connection with the applicable Product.
This Limited Warranty does not, under any circumstances, cover the replacement of or reimbursement for any electronic device or other item that is not a Product.
How to Make a Claim under the Limited Warranty
All Warranty claims must be made by e-mailing firstname.lastname@example.org (and including in the subject line: Warranty Claim). All Products must also be returned to goTenna with the original or copy of a sales receipt for the returned Product prior to the expiration of the Limited Warranty Period. Incomplete returns will not be accepted. We are not responsible or liable for Products that are damaged or lost in transit from you to goTenna. goTenna recommends that you ship your returned Product to us via a trackable shipment method.
goTenna will evaluate your claim (typically within 15 business days after receipt of the returned Product), and determine whether the returned Product is covered by the Limited Warranty. If goTenna determines that the returned Product is not covered by the Limited Warranty, then goTenna will ship the returned Product back to you at its expense. If goTenna determines that the returned Product is covered by the Limited Warranty, then you will receive a replacement Product as set forth in the section of these Product Terms entitled, “Limited One-Year Warranty.”
Sole and Exclusive Remedy
Your sole and exclusive remedy for any breach of the Limited Warranty, and our sole and exclusive liability, is to provide a replacement for the defective Product as set forth in the section of these Product Terms entitled, “Limited One-Year Warranty”. Replacement Products are covered by the Limited Warranty for the remainder of the Limited Warranty Period that applied to the original Product that was replaced.
EXCEPT AS EXPRESSLY SET FORTH IN THESE PRODUCT TERMS, THE PRODUCT, INCLUDING ANY EMBEDDED SOFTWARE, IS PROVIDED “AS IS,” AND “AS AVAILABLE,” AND GOTENNA EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS. GOTENNA DOES NOT WARRANT THAT THE PRODUCT OR EMBEDDED SOFTWARE WILL OPERATE WITHOUT INTERRUPTION OR WILL BE ERROR-FREE, OR THAT ALL ERRORS MAY BE CORRECTED. Some states or other jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so such limitations or exclusions may not apply to you. This warranty gives you specific legal rights and you may also have other rights which vary from jurisdiction to jurisdiction. In any event, any implied warranties that may exist under the laws of your jurisdiction are limited to the one (1) year period set forth in the Limited Warranty described above.
Limitation of Liability
IN NO EVENT SHALL GOTENNA BE LIABLE UNDER ANY LEGAL THEORY OR FORM OF ACTION FOR ANY LOSS OF LIFE OR PHYSICAL INJURY RELATING OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST DATA, OR COST OF SUBSTITUTE GOODS) IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS ARISING OUT OF OR RELATED TO THE PRODUCT (INCLUDING THE EMBEDDED SOFTWARE), ITS USE OR INABILITY TO USE, EVEN IF GOTENNA HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUR TOTAL LIABILITY IN CONNECTION WITH ANY CAUSES OF ACTION ARISING UNDER WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS RELATED TO THE PRODUCT (INCLUDING EMBEDDED SOFTWARE), ITS USE OR INABILITY TO USE (NOT ATTRIBUTABLE TO PERSONAL INJURIES) EXCEED, $50.. THESE EXCLUSIONS AND LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
You agree to defend, indemnify, and hold goTenna, our affiliates, and our and their respective shareholders, officers, directors, employees, agents, successors, and assigns harmless from and against any damages, liabilities, losses, expenses, claims, actions, and/or demands, including, without limitation, reasonable legal fees, arising or resulting from: (i) your breach of these Product Terms, or (ii) your negligence or willful misconduct in using the Product including Embedded Software (including any claims of property damages or personal injury). We will provide notice to you of any such claim, suit, or proceeding and will assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control (at your expense) of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
These Product Terms and any action related thereto will be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of Delaware for purposes of any dispute.
Our failure to act on or enforce any provision of these Product Terms will not be construed as a waiver of that provision or any other provision in these Product Terms. No waiver will be effective against us unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, these Product Terms constitutes the entire agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and will not be given any legal import. These Product Terms will inure to the benefit of our successors, assigns, licensees, and sublicensees.