Terms of Service
AllerGuarder Terms of Service
Date of Last Update: December 23, 2016
Daybros LLC dba AllerGuarder designs products and tools that provide alerts about its users’ food, medicine and other allergies or intolerances and other sensitivities and helps them avoid possible exposure to food allergens and other triggers. These Terms of Service (“Terms”) govern your use of our AllerGuarder products, our websites, including www.allerguarder.com, the software embedded in our products and devices (such as the AllerGuarder bracelet), the AllerGuarder software, the AllerGuarder mobile applications, memberships and other AllerGuarder services (collectively, the “AllerGuarder Service”).
You must accept these Terms to create an AllerGuarder account and to use the AllerGuarder Service. If you do not have an account, you accept these Terms by visiting www.AllerGuarder.com or using any part of the AllerGuarder Service. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT CREATE AN ACCOUNT, VISIT WWW.ALLERGUARDER.COM OR USE THE ALLERGUARDER SERVICE.
These Terms May Change
These Terms will change over time. If we make minor changes to the Terms without materially changing your rights, we will post the modified Terms on www.allerguarder.com. We will notify you by email, through the AllerGuarder Service, or by presenting you with a new Terms of Service to accept if we make a modification that materially changes your rights. When you use the AllerGuarder Service after a modification is posted, you are telling us that you accept the modified terms.
Read Our Privacy Policy
Any information that AllerGuarder collects through your use of the AllerGuarder Service is subject to the AllerGuarder Privacy Policy which is part of these Terms.
Who Can Use AllerGuarder?
You may use the AllerGuarder Service if you are over 13 years of age and are not barred from receiving services under applicable law. You may use the AllerGuarder Service together with a child who is under the age of 13, but only if you agree to these Terms on behalf of yourself and the child. You may connect to the AllerGuarder Service using a device that is manufactured, distributed, or sold by or on behalf of AllerGuarder; the AllerGuarder mobile applications; the AllerGuarder software; approved third-party applications; or http://www.AllerGuarder.com (“Authorized Connections”). You may not connect to the AllerGuarder Service with any device that is not manufactured, distributed, or sold by or on behalf of AllerGuarder (such as a knock off or counterfeit version of an AllerGuarder Product); otherwise intends to resemble or purports to be a AllerGuarder Product; or any unauthorized application or-third party connection. Any violation or attempted violation of this provision may result in the immediate termination of your ability to access the AllerGuarder Service. If you have questions about whether a product or application qualifies as an Authorized Connection, please contact legal@AllerGuarder.com.
Creating an Account
Full use of the AllerGuarder Service requires that you create an account by providing us with a valid email address and strong password. You are responsible for all activity that occurs in association with your account, and anyone who uses your account is subject to these Terms. By creating an account, you represent and warrant that you are of legal age and competent to agree to the terms and conditions set forth herein on behalf of yourself and anyone who uses your account. AllerGuarder is not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials.
We will contact you about your use of the AllerGuarder Service. These communications are part of the AllerGuarder Service and you may not opt-out from receiving them.
Necessary Equipment
Full use of the AllerGuarder Service is dependent upon the use, by many participants in the AllerGuarder Service, of a supported and fully enabled mobile device with functioning location services, low-energy Bluetooth capabilities and Internet access. The performance, maintenance and security of this equipment may influence the performance of the AllerGuarder Service and it is your responsibility to ensure your equipment’s functionality. We make no guarantees concerning the use, operation or functionality of any equipment or software or more generally, the ability of the AllerGuarder Service to avoid or prevent exposure to foods, medicines, or other substances which may cause adverse physical reactions in any user of the AllerGuarder Service.
Posting Your Content On The AllerGuarder Service
You may post personal and/or private information including photos, medical information, contacts, comments, and other content (“Your Content”) to the AllerGuarder Service. You retain all rights to Your Content that you post to the AllerGuarder Service. By making Your Content available on or through the AllerGuarder Service you grant to AllerGuarder a non-exclusive, transferable, sub licensable, worldwide, royalty-free license to use, copy, modify, publicly display, publicly perform and distribute Your Content.
You are responsible for Your Content. You represent and warrant that you own Your Content or that you have all rights necessary to grant us a license to use Your Content as described in these Terms. You also represent and warrant that Your Content and the use and provision of Your Content on the AllerGuarder Service will not: (a) infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (b) violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) be fraudulent, false, misleading or deceptive; (d) be defamatory, obscene, pornographic, vulgar or offensive; (e) promote discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (f) be violent or threatening or promote violence or actions that are threatening to any person or entity; or (g) promote illegal or harmful activities or substances.
AllerGuarder’s Rights
“AllerGuarder Content” includes any text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the AllerGuarder Service to you. AllerGuarder Content, the AllerGuarder Service and its underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. You agree not to remove, change or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the AllerGuarder Service.
What You Can Do On The AllerGuarder Service
The AllerGuarder Service is intended for your personal, non-commercial use.
AllerGuarder grants you a limited, non-exclusive, non-transferable, non-sub licensable license to (1) access and view the AllerGuarder Content, (2) access and use the software and mobile applications provided by the AllerGuarder Service, and (3) use the software that is embedded into AllerGuarder products as authorized in these Terms. This license is provided solely for your personal use and enjoyment of the AllerGuarder Service as permitted in these Terms.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the AllerGuarder Content, AllerGuarder Service or any portion thereof, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by AllerGuarder or its licensors, except for the licenses and rights expressly granted in these Terms.
Things You Cannot Do On The AllerGuarder Service
Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the AllerGuarder Service: (1) use, display, mirror or frame the AllerGuarder Service or any individual element within the AllerGuarder Service, AllerGuarder’s name, any AllerGuarder trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without AllerGuarder’s express written consent; (2) access or tamper with non-public areas of the AllerGuarder Service, AllerGuarder’s computer systems, or the technical delivery systems of AllerGuarder’s providers; (3) test the vulnerability of any AllerGuarder system or breach any security or authentication measures; (4) circumvent any technological measure implemented by AllerGuarder or any of AllerGuarder’s providers or any other third party (including another user) to protect the AllerGuarder Service or AllerGuarder Content; (5) access the AllerGuarder Service or AllerGuarder Content through the use of any mechanism other than through the use of an Authorized Connection, AllerGuarder Service or AllerGuarder API; or (6) modify, decompile, disassemble, reverse engineer, tamper with or otherwise attempt to derive the source code of any software that AllerGuarder provides to you or any other part of the AllerGuarder Service.
Our Enforcement Rights
We are not obligated to monitor access or use of the AllerGuarder Service, AllerGuarder Content, or Your Content or to review or edit any AllerGuarder Content or Your Content, but we have the right to do so for the purpose of operating the AllerGuarder Service, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We may consult with and disclose unlawful conduct to law enforcement authorities; and pursuant to valid legal process, we may cooperate with law enforcement authorities to prosecute users who violate the law. We reserve the right (but are not required) to remove or disable access to the AllerGuarder Service, any AllerGuarder Content, or Your Content at any time and without notice, and at our sole discretion, if we determine that the AllerGuarder Content, Your Content, or your use of the AllerGuarder Service is objectionable or in violation of these Terms. We have the right to investigate violations of these Terms and any conduct that affects the AllerGuarder Service.
Use The AllerGuarder Service At Your Own Risk
Our goal is to provide helpful and accurate information on the AllerGuarder Service, but we make no endorsement, representation or warranty of any kind about the AllerGuarder Service, any AllerGuarder Content, information, services or recommendations. AllerGuarder products, software tools and the AllerGuarder Service are not intended to constitute or replace medical advice or scientific measurement devices.
We are not responsible for the accuracy, reliability, effectiveness, or correct use of information you receive through the AllerGuarder Service or the equipment used by you and others in connection with the AllerGuarder Service. Maps, directions, and other GPS or navigation data, including data relating to your current location, may be unavailable, inaccurate or incomplete. Equipment, including bracelets, smartphones, computers, servers and other related equipment, may not be fully functional at all times. If you rely on any AllerGuarder Content or the AllerGuarder Service, you do so solely at your own risk.
Consult Your Doctor Before Using The AllerGuarder Service
The AllerGuarder Service is not intended to diagnose, treat, cure, or prevent any disease, illness, medical condition, allergic reactions, intolerances, sensitivities or infection. Consult your doctor before using the AllerGuarder Service. If you experience a medical emergency, consult with a medical professional. We are not responsible for any health problems or any other issues or problems that may result from the AllerGuarder Service.
Prolonged contact with wearable devices may contribute to skin irritation or allergies in some users. If you notice any skin irritation, remove your device and consult your doctor.
DMCA/Copyright Policy
AllerGuarder respects copyright law and expects its users to do the same. It is AllerGuarder’s policy to terminate in appropriate circumstances account holders who repeatedly infringe the rights of copyright holders. Please see AllerGuarder’s DMCA/Copyright Policy
Additional Policies Apply To Product Orders
AllerGuarder’s Terms of Sale and Returns and Warranty Policy apply to purchases made through the AllerGuarder store at www.AllerGuarder.com and also to purchases made through any third-party website or retailer or through an independent distributor or reseller (to the extent not superseded by applicable terms and conditions established by such websites, retailers, distributors or resellers). All orders placed are subject to AllerGuarder’s acceptance. We may accept, decline, or place limits on your order for any reason.
Feedback And Submissions Policy
If you submit comments, ideas, or feedback to us, you agree that we can use them without any restriction or compensation to you. We do not waive any rights to use similar or related ideas or feedback previously known to us, developed by AllerGuarder, or obtained from sources other than you.
We are always pleased to hear from the members of the AllerGuarder community. However, neither AllerGuarder, nor any of its employees, may accept or consider any unsolicited ideas, including ideas for new or improved products or services, new marketing campaigns or product or service names. Therefore, please do not submit any such unsolicited ideas in any form to AllerGuarder or any of its employees. This policy is necessary to avoid potential misunderstandings or disputes that may arise if our new products or services or marketing campaigns were to appear similar to an idea submitted by you.
If, despite our policy, you still submit an idea to us, then regardless of anything contained in your submission you agree that the following shall apply: (i) we shall have no obligation to review the submission; (ii) the submission and its contents shall automatically become the property of AllerGuarder, without any compensation to you; (iii) we may consider the submission and its contents to be non-confidential and non-proprietary; and (iv) we may redistribute or use (for commercial purposes or otherwise) the submission and its contents for any purpose and in any way, without any compensation to you (collectively, the “Terms and Conditions”).
If a member of the AllerGuarder community provides us (at our request or otherwise) a comment or suggestion regarding our products or services (including the AllerGuarder dashboard, our mobile app or any of our devices) through any means, such as our Product Development web forums, help forums or via any social network, the Terms and Conditions set forth above shall also apply thereto.
Contests, Coupons And Giveaways
Additional terms and conditions may apply to contests, coupons, giveaways and other promotions sponsored by AllerGuarder and its partners. It is your responsibility to carefully review those terms and conditions.
You Agree to Receive Alerts And Notifications
As part of your use of the AllerGuarder Service, you may receive notifications, text messages, alerts, or emails. You agree to the receipt of these communications. You are responsible for any messaging or data fees you may be charged by any third parties.
We Are Not Responsible For Third-Party Links On The AllerGuarder Service
The AllerGuarder Service may contain links to third-party websites, apps, services and resources (collectively “Third-Party Services”) that are not under AllerGuarder’s control. We provide these links only as a convenience and are not responsible for the content, products or services that are available from Third-Party Services. You acknowledge sole responsibility and assume all risk arising from your use of any Third-Party Services.
AllerGuarder Does Not Control Third-Party Services That You Link With Your AllerGuarder Account
The AllerGuarder Service may provide the opportunity for you to link your AllerGuarder account, AllerGuarder data, or the AllerGuarder Service with Third-Party Services. Although we may offer this opportunity, you acknowledge that any Third-Party Services that you use in connection with the AllerGuarder Service are not part of the AllerGuarder Service. You acknowledge that these Terms and the AllerGuarder Privacy Policy do not apply to any Third-Party Services. You are responsible for reading and understanding the terms and conditions and privacy policy that applies to your use of any Third-Party Services.
Changes To The AllerGuarder Service
AllerGuarder may change or discontinue, temporarily or permanently, any feature or component of the AllerGuarder Service at any time without notice. AllerGuarder is not liable to you or to any third party for any modification, suspension or discontinuance of any feature or component of the AllerGuarder Service. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by AllerGuarder products without prior notice to you.
Termination
If you violate these Terms, we reserve the right to deactivate your account or terminate these Terms, at our sole discretion, at any time and without notice or liability to you. Upon any such termination, we may delete Your Content and other information related to your account. You may cancel your account at any time by contacting customer support at info@allerguarder.com. Upon any termination, discontinuation or cancellation of the AllerGuarder Service or your account, the following provisions of these Terms will survive: Posting Your Content On The AllerGuarder Service; AllerGuarder’s Rights; Our Enforcement Rights; Consult Your Doctor Before Using The AllerGuarder Service; Termination; Disclaimers; Indemnity; Limitation of Liability; Dispute Resolution; and General Terms.
Disclaimers
THE ALLERGUARDER SERVICE AND ALLERGUARDER CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the AllerGuarder Service or AllerGuarder Content will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of the AllerGuarder Service or any AllerGuarder Content. You acknowledge that the usefulness of the AllerGuarder Service is dependent upon the voluntary and effective participation of many other users of the AllerGuarder Service, who are not within the control of, or participate at the direction of, AllerGuarder.
You acknowledge and agree that if you rely on any AllerGuarder Content or the AllerGuarder Service, you do so solely at your own risk.
Indemnity
You will indemnify and hold harmless AllerGuarder and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable attorneys’ fees arising out of or in any way connected with (i) your access to or use of the AllerGuarder Service, (ii) Your Content, or (iii)your breach of any warranties made by you hereunder or your violation of any other provision of these Terms. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
Limitation Of Liability
NEITHER ALLERGUARDER, ITS SUPPLIERS OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE ALLERGUARDER SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING PERSONAL OR BODILY INJURY, DEATH, LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE ALLERGUARDER SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ALLERGUARDER HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL ALLERGUARDER’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE ALLERGUARDER SERVICE EXCEED THE AMOUNTS YOU HAVE PAID TO ALLERGUARDER FOR USE OF THE ALLERGUARDER SERVICE OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO ALLERGUARDER, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ALLERGUARDER AND YOU.
Dispute Resolution
You agree that any dispute between you and AllerGuarder arising out of or relating to these Terms of Service, the AllerGuarder Service, or any other AllerGuarder products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.
Governing Law: The Terms of Service and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of laws principles.
Informal Dispute Resolution: We want to address your concerns without needing a formal legal case. Before filing a claim against AllerGuarder, you agree to try to resolve the Dispute informally by contacting legal@AllerGuarder.com. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or AllerGuarder may bring a formal proceeding.
We Both Agree To Arbitrate: You and AllerGuarder agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
Opt-out of Agreement to Arbitrate: You can decline this agreement to arbitrate by contacting legal@AllerGuarder.com within 30 days of first accepting these Terms of Service and stating that you (include your first and last name) decline this arbitration agreement. Arbitration Procedures: The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, New York, New York, or any other location we agree to.
Arbitration Fees: The AAA rules will govern payment of all arbitration fees. AllerGuarder will pay all arbitration fees for claims less than $15,000. AllerGuarder will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
Exceptions to Agreement to Arbitrate: Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the AllerGuarder products or AllerGuarder Service, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
No Class Actions: You may only resolve Disputes with AllerGuarder on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under our agreement.
Judicial Forum for Disputes: In the event that the agreement to arbitrate is found not to apply to you or your claim, you and AllerGuarder agree that any judicial proceeding (other than small claims actions) will be brought exclusively in the federal or state courts of New York County, New York. Both you and AllerGuarder consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
Limitation on Claims: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the AllerGuarder products or AllerGuarder Service must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
General Terms
Except as otherwise stated herein, these Terms constitute the entire and exclusive understanding and agreement between AllerGuarder and you regarding the AllerGuarder Service, and these Terms supersede and replace any and all prior oral or written understandings or agreements between AllerGuarder and you regarding the AllerGuarder Service and AllerGuarder Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without AllerGuarder’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. AllerGuarder may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by AllerGuarder under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the AllerGuarder Service. For notices made by e-mail, the date of receipt on the message will be deemed the date on which such notice is transmitted.
AllerGuarder’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of AllerGuarder. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
Additional Terms May Apply
Additional terms may apply to certain products or services. In the event that there is a conflict between these Terms and any additional terms, the additional terms will control.
Contact Us
Please contact us if you have any questions about these Terms.
Daybros LLC dba AllerGuarder.
17 Copperbeech Lane
Lawrence N.Y. 11559
legal@AllerGuarder.com
___________________________________________________________________________________
Terms of Sale
AllerGuarder Terms of Sale
These terms of sale (“Terms”) apply to all orders accepted by AllerGuarder (“AllerGuarder”) for the sale of its bracelets and other electronic monitoring products (“Products”), except in the case that you and AllerGuarder have executed a written agreement that supersedes these Terms. To the extent the Products contain or consist of software in any form (“Software”), such Software is licensed to you, not sold, and only in accordance with the section entitled “Software License”, below. Terms such as “sell” and “purchase”, as used in these Terms, apply only to the extent the Products consist of items other than Software.
ORDERS
You can browse and place orders for our Products through www.allerguarder.com (the “AllerGuarder Store”). We’ll ask you for your name, phone number, e-mail address, shipping and billing address and other information so we can fulfill your order. When you place an order, AllerGuarder’s third-party payment service provider will collect your credit card details and charge your credit card account in connection with the order, and you agree to make all applicable payments in connection with any order placed by you. AllerGuarder does not view or store your credit card information. We store your shipping address so we can process your order through our fulfillment partner. If you are logged into your AllerGuarder account when you purchase something from the AllerGuarder Store, we associate that order with your AllerGuarder account. For more information on AllerGuarder’s data use practices please see the AllerGuarder Privacy Policy at www.allerguarder.com/privacy.html.
By placing an order through the AllerGuarder Store, you agree that: (i) any credit card information supplied by you is true and complete; and (ii) you will pay the applicable price listed, as well as any shipping and handling charges and applicable taxes. Products purchased by you are for personal or gift use and not for commercial use.
All orders, once accepted, are final.
You may also purchase our Products through third-party websites or retailers or through independent distributors or resellers. Such purchases may be subject to additional terms of sale as determined by these third parties.
PRICING
AllerGuarder can withdraw Products from the AllerGuarder Store at any time and for any reason. Prices listed through the AllerGuarder Store are stated in U.S. dollars, and do not include any shipping and handling charges or applicable taxes, which charges and taxes will be communicated to you before you place an order and you are responsible for paying such charges and taxes to AllerGuarder. You agree to indemnify and hold AllerGuarder harmless from and against any liabilities, interest, penalties or fees assessed against AllerGuarder arising from your failure to pay any such taxes. All Product prices are subject to change at any time.
ACCEPTANCE AND FULFILLMENT
All orders are subject to acceptance by AllerGuarder. After you place an order, you will receive one or more emails from AllerGuarder confirming that AllerGuarder has received and accepted your order. AllerGuarder reserves the right not to accept your order for any reason or no reason. AllerGuarder reserves the right to restrict multiple quantities of a Product being shipped to any one customer or postal address.
RESALE
Purchases made through the AllerGuarder Store are intended for end users only, and are not authorized for resale.
SHIPPING AND DELIVERY
AllerGuarder will pack the Products in accordance with its standard practices. Title to the Products (except to the extent that the Products consist of Software) and risk of loss will pass to you upon AllerGuarder’s delivery of the Products to the carrier. You acknowledge that all scheduled shipment dates are estimates only. AllerGuarder will make reasonable efforts to meet the scheduled shipment dates, but in no event will AllerGuarder be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery.
LIMITED PRODUCT WARRANTY
AllerGuarder warrants to the original purchaser that your Product shall be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of purchase. For full details on the Limited Product Warranty, please see www.AllerGuarder.com/returns-and-warranty.html.
COMPATIBILITY
You acknowledge that you have verified the compatibility of the Products you are purchasing with other required equipment (e.g., ensuring that your mobile device and/or operating system is compatible with the Product). You are solely responsible for determining the compatibility of the Products with other equipment, and you accept that lack of compatibility is not a valid claim under the warranty provided with your Products.
LIMITATIONS ON LIABILITY
IN NO EVENT WILL ALLERGUARDER BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, PERSONAL OR BODILY INJURY, DEATH, LOSS OF REVENUE, USE, PROFITS, DATA, OR GOODWILL) OR COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS OR THE PURCHASE, SALE, USE, OPERATION OR PERFORMANCE OF THE PRODUCTS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT ALLERGUARDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. ALLERGUARDER AND YOU HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL ALLERGUARDER’S LIABILITY TO YOU ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE ACTUAL AMOUNT PAID TO ALLERGUARDER BY YOU FOR THE PRODUCT THAT GIVES RISE TO THE CLAIM. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
SOFTWARE LICENSE
AllerGuarder grants to you a nonexclusive, nontransferable license to use the Software, in executable form, solely as embedded in the Products, solely for your internal, non-commercial use. You may not copy or modify the Software. You acknowledge that the Software contains trade secrets of AllerGuarder, and, in order to protect such trade secrets, you agree not to disassemble, decompile or reverse engineer the Software nor permit any third party to do so, except to the extent such restrictions are prohibited by law. AllerGuarder reserves all rights and licenses in and to the Software not expressly granted to you under this Agreement.
DISPUTE RESOLUTION
You agree that any dispute between you and AllerGuarder arising out of or relating to these Terms, or any other AllerGuarder products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.
GOVERNING LAW
The Terms and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of laws principles.
INFORMAL DISPUTE RESOLUTION
We want to address your concerns without needing a formal legal case. Before filing a claim against AllerGuarder, you agree to try to resolve the Dispute informally by contacting legal@AllerGuarder.com. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or AllerGuarder may bring a formal proceeding.
WE BOTH AGREE TO ARBITRATE
You and AllerGuarder agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
OPT-OUT OF AGREEMENT TO ARBITRATE
You can decline this agreement to arbitrate by contacting legal@AllerGuarder.com within 30 days of first accepting these Terms and stating that you (include your first and last name) decline this arbitration agreement.
ARBITRATION PROCEDURES
The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, New York City, New York, or any other location we agree to.
ARBITRATION FEES
The AAA rules will govern payment of all arbitration fees. AllerGuarder will pay all arbitration fees for claims less than $15,000. AllerGuarder will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
EXCEPTIONS TO AGREEMENT TO ARBITRATE
. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the AllerGuarder Products or services, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
NO CLASS ACTIONS
You may only resolve Disputes with AllerGuarder on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under our agreement.
JUDICIAL FORUM FOR DISPUTES
In the event that the agreement to arbitrate is found not to apply to you or your claim, you and AllerGuarder agree that any judicial proceeding (other than small claims actions) will be brought exclusively in the federal or state courts of New York County, New York. Both you and AllerGuarder consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
LIMITATION ON CLAIMS
Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the AllerGuarder Products or services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
AMENDMENT.
Subject to the termination and refund rights above, you agree that AllerGuarder reserves the right to amend the service and these terms at any time and for any reason.
GENERAL PROVISIONS
The parties disclaim application of the United Nations Convention on Contracts for the International Sale of Goods.
You may not assign or transfer these Terms, or any order accepted by AllerGuarder hereunder, in whole or in part, by operation of law or otherwise, without AllerGuarder’s express prior written consent. Any attempt to do so, without AllerGuarder’s consent, will be null and of no effect. AllerGuarder may freely assign these Terms.
AllerGuarder will not be responsible for any failure or delay in its performance under these Terms due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or acts of God.
The failure by AllerGuarder to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
These Terms constitute the complete and exclusive agreement between AllerGuarder and you regarding its subject matter and supersedes all prior or contemporaneous quotations, agreements, communications or understandings, whether written or oral, relating to its subject matter. Any waiver, modification or amendment of any provision of these Terms will be effective only if in writing and signed by duly authorized representatives of each party.
You will not export or re-export, directly or indirectly, the Products, or any technical information related thereto, or any direct products thereof, to any destination or person prohibited or restricted by the export control laws and regulations of the United States, without the prior authorization from the appropriate governmental authorities.
All notices required or permitted to be given under these Terms will be in writing and will be deemed given: (i) upon actual delivery, if made by personal service; (ii) three (3) days after mailing, if made by U.S. certified or registered mail; and (iii) one (1) business day after delivery to the courier or overnight delivery service, if made by courier or overnight delivery service. All notices will be addressed to such address as the party who is to receive the notice so designates by written notice to the other.
Date of Last Update: December 23, 2016
Daybros LLC dba AllerGuarder designs products and tools that provide alerts about its users’ food, medicine and other allergies or intolerances and other sensitivities and helps them avoid possible exposure to food allergens and other triggers. These Terms of Service (“Terms”) govern your use of our AllerGuarder products, our websites, including www.allerguarder.com, the software embedded in our products and devices (such as the AllerGuarder bracelet), the AllerGuarder software, the AllerGuarder mobile applications, memberships and other AllerGuarder services (collectively, the “AllerGuarder Service”).
You must accept these Terms to create an AllerGuarder account and to use the AllerGuarder Service. If you do not have an account, you accept these Terms by visiting www.AllerGuarder.com or using any part of the AllerGuarder Service. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT CREATE AN ACCOUNT, VISIT WWW.ALLERGUARDER.COM OR USE THE ALLERGUARDER SERVICE.
These Terms May Change
These Terms will change over time. If we make minor changes to the Terms without materially changing your rights, we will post the modified Terms on www.allerguarder.com. We will notify you by email, through the AllerGuarder Service, or by presenting you with a new Terms of Service to accept if we make a modification that materially changes your rights. When you use the AllerGuarder Service after a modification is posted, you are telling us that you accept the modified terms.
Read Our Privacy Policy
Any information that AllerGuarder collects through your use of the AllerGuarder Service is subject to the AllerGuarder Privacy Policy which is part of these Terms.
Who Can Use AllerGuarder?
You may use the AllerGuarder Service if you are over 13 years of age and are not barred from receiving services under applicable law. You may use the AllerGuarder Service together with a child who is under the age of 13, but only if you agree to these Terms on behalf of yourself and the child. You may connect to the AllerGuarder Service using a device that is manufactured, distributed, or sold by or on behalf of AllerGuarder; the AllerGuarder mobile applications; the AllerGuarder software; approved third-party applications; or http://www.AllerGuarder.com (“Authorized Connections”). You may not connect to the AllerGuarder Service with any device that is not manufactured, distributed, or sold by or on behalf of AllerGuarder (such as a knock off or counterfeit version of an AllerGuarder Product); otherwise intends to resemble or purports to be a AllerGuarder Product; or any unauthorized application or-third party connection. Any violation or attempted violation of this provision may result in the immediate termination of your ability to access the AllerGuarder Service. If you have questions about whether a product or application qualifies as an Authorized Connection, please contact legal@AllerGuarder.com.
Creating an Account
Full use of the AllerGuarder Service requires that you create an account by providing us with a valid email address and strong password. You are responsible for all activity that occurs in association with your account, and anyone who uses your account is subject to these Terms. By creating an account, you represent and warrant that you are of legal age and competent to agree to the terms and conditions set forth herein on behalf of yourself and anyone who uses your account. AllerGuarder is not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials.
We will contact you about your use of the AllerGuarder Service. These communications are part of the AllerGuarder Service and you may not opt-out from receiving them.
Necessary Equipment
Full use of the AllerGuarder Service is dependent upon the use, by many participants in the AllerGuarder Service, of a supported and fully enabled mobile device with functioning location services, low-energy Bluetooth capabilities and Internet access. The performance, maintenance and security of this equipment may influence the performance of the AllerGuarder Service and it is your responsibility to ensure your equipment’s functionality. We make no guarantees concerning the use, operation or functionality of any equipment or software or more generally, the ability of the AllerGuarder Service to avoid or prevent exposure to foods, medicines, or other substances which may cause adverse physical reactions in any user of the AllerGuarder Service.
Posting Your Content On The AllerGuarder Service
You may post personal and/or private information including photos, medical information, contacts, comments, and other content (“Your Content”) to the AllerGuarder Service. You retain all rights to Your Content that you post to the AllerGuarder Service. By making Your Content available on or through the AllerGuarder Service you grant to AllerGuarder a non-exclusive, transferable, sub licensable, worldwide, royalty-free license to use, copy, modify, publicly display, publicly perform and distribute Your Content.
You are responsible for Your Content. You represent and warrant that you own Your Content or that you have all rights necessary to grant us a license to use Your Content as described in these Terms. You also represent and warrant that Your Content and the use and provision of Your Content on the AllerGuarder Service will not: (a) infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (b) violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) be fraudulent, false, misleading or deceptive; (d) be defamatory, obscene, pornographic, vulgar or offensive; (e) promote discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (f) be violent or threatening or promote violence or actions that are threatening to any person or entity; or (g) promote illegal or harmful activities or substances.
AllerGuarder’s Rights
“AllerGuarder Content” includes any text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the AllerGuarder Service to you. AllerGuarder Content, the AllerGuarder Service and its underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. You agree not to remove, change or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the AllerGuarder Service.
What You Can Do On The AllerGuarder Service
The AllerGuarder Service is intended for your personal, non-commercial use.
AllerGuarder grants you a limited, non-exclusive, non-transferable, non-sub licensable license to (1) access and view the AllerGuarder Content, (2) access and use the software and mobile applications provided by the AllerGuarder Service, and (3) use the software that is embedded into AllerGuarder products as authorized in these Terms. This license is provided solely for your personal use and enjoyment of the AllerGuarder Service as permitted in these Terms.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the AllerGuarder Content, AllerGuarder Service or any portion thereof, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by AllerGuarder or its licensors, except for the licenses and rights expressly granted in these Terms.
Things You Cannot Do On The AllerGuarder Service
Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the AllerGuarder Service: (1) use, display, mirror or frame the AllerGuarder Service or any individual element within the AllerGuarder Service, AllerGuarder’s name, any AllerGuarder trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without AllerGuarder’s express written consent; (2) access or tamper with non-public areas of the AllerGuarder Service, AllerGuarder’s computer systems, or the technical delivery systems of AllerGuarder’s providers; (3) test the vulnerability of any AllerGuarder system or breach any security or authentication measures; (4) circumvent any technological measure implemented by AllerGuarder or any of AllerGuarder’s providers or any other third party (including another user) to protect the AllerGuarder Service or AllerGuarder Content; (5) access the AllerGuarder Service or AllerGuarder Content through the use of any mechanism other than through the use of an Authorized Connection, AllerGuarder Service or AllerGuarder API; or (6) modify, decompile, disassemble, reverse engineer, tamper with or otherwise attempt to derive the source code of any software that AllerGuarder provides to you or any other part of the AllerGuarder Service.
Our Enforcement Rights
We are not obligated to monitor access or use of the AllerGuarder Service, AllerGuarder Content, or Your Content or to review or edit any AllerGuarder Content or Your Content, but we have the right to do so for the purpose of operating the AllerGuarder Service, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We may consult with and disclose unlawful conduct to law enforcement authorities; and pursuant to valid legal process, we may cooperate with law enforcement authorities to prosecute users who violate the law. We reserve the right (but are not required) to remove or disable access to the AllerGuarder Service, any AllerGuarder Content, or Your Content at any time and without notice, and at our sole discretion, if we determine that the AllerGuarder Content, Your Content, or your use of the AllerGuarder Service is objectionable or in violation of these Terms. We have the right to investigate violations of these Terms and any conduct that affects the AllerGuarder Service.
Use The AllerGuarder Service At Your Own Risk
Our goal is to provide helpful and accurate information on the AllerGuarder Service, but we make no endorsement, representation or warranty of any kind about the AllerGuarder Service, any AllerGuarder Content, information, services or recommendations. AllerGuarder products, software tools and the AllerGuarder Service are not intended to constitute or replace medical advice or scientific measurement devices.
We are not responsible for the accuracy, reliability, effectiveness, or correct use of information you receive through the AllerGuarder Service or the equipment used by you and others in connection with the AllerGuarder Service. Maps, directions, and other GPS or navigation data, including data relating to your current location, may be unavailable, inaccurate or incomplete. Equipment, including bracelets, smartphones, computers, servers and other related equipment, may not be fully functional at all times. If you rely on any AllerGuarder Content or the AllerGuarder Service, you do so solely at your own risk.
Consult Your Doctor Before Using The AllerGuarder Service
The AllerGuarder Service is not intended to diagnose, treat, cure, or prevent any disease, illness, medical condition, allergic reactions, intolerances, sensitivities or infection. Consult your doctor before using the AllerGuarder Service. If you experience a medical emergency, consult with a medical professional. We are not responsible for any health problems or any other issues or problems that may result from the AllerGuarder Service.
Prolonged contact with wearable devices may contribute to skin irritation or allergies in some users. If you notice any skin irritation, remove your device and consult your doctor.
DMCA/Copyright Policy
AllerGuarder respects copyright law and expects its users to do the same. It is AllerGuarder’s policy to terminate in appropriate circumstances account holders who repeatedly infringe the rights of copyright holders. Please see AllerGuarder’s DMCA/Copyright Policy
Additional Policies Apply To Product Orders
AllerGuarder’s Terms of Sale and Returns and Warranty Policy apply to purchases made through the AllerGuarder store at www.AllerGuarder.com and also to purchases made through any third-party website or retailer or through an independent distributor or reseller (to the extent not superseded by applicable terms and conditions established by such websites, retailers, distributors or resellers). All orders placed are subject to AllerGuarder’s acceptance. We may accept, decline, or place limits on your order for any reason.
Feedback And Submissions Policy
If you submit comments, ideas, or feedback to us, you agree that we can use them without any restriction or compensation to you. We do not waive any rights to use similar or related ideas or feedback previously known to us, developed by AllerGuarder, or obtained from sources other than you.
We are always pleased to hear from the members of the AllerGuarder community. However, neither AllerGuarder, nor any of its employees, may accept or consider any unsolicited ideas, including ideas for new or improved products or services, new marketing campaigns or product or service names. Therefore, please do not submit any such unsolicited ideas in any form to AllerGuarder or any of its employees. This policy is necessary to avoid potential misunderstandings or disputes that may arise if our new products or services or marketing campaigns were to appear similar to an idea submitted by you.
If, despite our policy, you still submit an idea to us, then regardless of anything contained in your submission you agree that the following shall apply: (i) we shall have no obligation to review the submission; (ii) the submission and its contents shall automatically become the property of AllerGuarder, without any compensation to you; (iii) we may consider the submission and its contents to be non-confidential and non-proprietary; and (iv) we may redistribute or use (for commercial purposes or otherwise) the submission and its contents for any purpose and in any way, without any compensation to you (collectively, the “Terms and Conditions”).
If a member of the AllerGuarder community provides us (at our request or otherwise) a comment or suggestion regarding our products or services (including the AllerGuarder dashboard, our mobile app or any of our devices) through any means, such as our Product Development web forums, help forums or via any social network, the Terms and Conditions set forth above shall also apply thereto.
Contests, Coupons And Giveaways
Additional terms and conditions may apply to contests, coupons, giveaways and other promotions sponsored by AllerGuarder and its partners. It is your responsibility to carefully review those terms and conditions.
You Agree to Receive Alerts And Notifications
As part of your use of the AllerGuarder Service, you may receive notifications, text messages, alerts, or emails. You agree to the receipt of these communications. You are responsible for any messaging or data fees you may be charged by any third parties.
We Are Not Responsible For Third-Party Links On The AllerGuarder Service
The AllerGuarder Service may contain links to third-party websites, apps, services and resources (collectively “Third-Party Services”) that are not under AllerGuarder’s control. We provide these links only as a convenience and are not responsible for the content, products or services that are available from Third-Party Services. You acknowledge sole responsibility and assume all risk arising from your use of any Third-Party Services.
AllerGuarder Does Not Control Third-Party Services That You Link With Your AllerGuarder Account
The AllerGuarder Service may provide the opportunity for you to link your AllerGuarder account, AllerGuarder data, or the AllerGuarder Service with Third-Party Services. Although we may offer this opportunity, you acknowledge that any Third-Party Services that you use in connection with the AllerGuarder Service are not part of the AllerGuarder Service. You acknowledge that these Terms and the AllerGuarder Privacy Policy do not apply to any Third-Party Services. You are responsible for reading and understanding the terms and conditions and privacy policy that applies to your use of any Third-Party Services.
Changes To The AllerGuarder Service
AllerGuarder may change or discontinue, temporarily or permanently, any feature or component of the AllerGuarder Service at any time without notice. AllerGuarder is not liable to you or to any third party for any modification, suspension or discontinuance of any feature or component of the AllerGuarder Service. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by AllerGuarder products without prior notice to you.
Termination
If you violate these Terms, we reserve the right to deactivate your account or terminate these Terms, at our sole discretion, at any time and without notice or liability to you. Upon any such termination, we may delete Your Content and other information related to your account. You may cancel your account at any time by contacting customer support at info@allerguarder.com. Upon any termination, discontinuation or cancellation of the AllerGuarder Service or your account, the following provisions of these Terms will survive: Posting Your Content On The AllerGuarder Service; AllerGuarder’s Rights; Our Enforcement Rights; Consult Your Doctor Before Using The AllerGuarder Service; Termination; Disclaimers; Indemnity; Limitation of Liability; Dispute Resolution; and General Terms.
Disclaimers
THE ALLERGUARDER SERVICE AND ALLERGUARDER CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the AllerGuarder Service or AllerGuarder Content will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of the AllerGuarder Service or any AllerGuarder Content. You acknowledge that the usefulness of the AllerGuarder Service is dependent upon the voluntary and effective participation of many other users of the AllerGuarder Service, who are not within the control of, or participate at the direction of, AllerGuarder.
You acknowledge and agree that if you rely on any AllerGuarder Content or the AllerGuarder Service, you do so solely at your own risk.
Indemnity
You will indemnify and hold harmless AllerGuarder and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable attorneys’ fees arising out of or in any way connected with (i) your access to or use of the AllerGuarder Service, (ii) Your Content, or (iii)your breach of any warranties made by you hereunder or your violation of any other provision of these Terms. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
Limitation Of Liability
NEITHER ALLERGUARDER, ITS SUPPLIERS OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE ALLERGUARDER SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING PERSONAL OR BODILY INJURY, DEATH, LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE ALLERGUARDER SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ALLERGUARDER HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL ALLERGUARDER’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE ALLERGUARDER SERVICE EXCEED THE AMOUNTS YOU HAVE PAID TO ALLERGUARDER FOR USE OF THE ALLERGUARDER SERVICE OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO ALLERGUARDER, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ALLERGUARDER AND YOU.
Dispute Resolution
You agree that any dispute between you and AllerGuarder arising out of or relating to these Terms of Service, the AllerGuarder Service, or any other AllerGuarder products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.
Governing Law: The Terms of Service and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of laws principles.
Informal Dispute Resolution: We want to address your concerns without needing a formal legal case. Before filing a claim against AllerGuarder, you agree to try to resolve the Dispute informally by contacting legal@AllerGuarder.com. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or AllerGuarder may bring a formal proceeding.
We Both Agree To Arbitrate: You and AllerGuarder agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
Opt-out of Agreement to Arbitrate: You can decline this agreement to arbitrate by contacting legal@AllerGuarder.com within 30 days of first accepting these Terms of Service and stating that you (include your first and last name) decline this arbitration agreement. Arbitration Procedures: The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, New York, New York, or any other location we agree to.
Arbitration Fees: The AAA rules will govern payment of all arbitration fees. AllerGuarder will pay all arbitration fees for claims less than $15,000. AllerGuarder will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
Exceptions to Agreement to Arbitrate: Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the AllerGuarder products or AllerGuarder Service, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
No Class Actions: You may only resolve Disputes with AllerGuarder on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under our agreement.
Judicial Forum for Disputes: In the event that the agreement to arbitrate is found not to apply to you or your claim, you and AllerGuarder agree that any judicial proceeding (other than small claims actions) will be brought exclusively in the federal or state courts of New York County, New York. Both you and AllerGuarder consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
Limitation on Claims: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the AllerGuarder products or AllerGuarder Service must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
General Terms
Except as otherwise stated herein, these Terms constitute the entire and exclusive understanding and agreement between AllerGuarder and you regarding the AllerGuarder Service, and these Terms supersede and replace any and all prior oral or written understandings or agreements between AllerGuarder and you regarding the AllerGuarder Service and AllerGuarder Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without AllerGuarder’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. AllerGuarder may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by AllerGuarder under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the AllerGuarder Service. For notices made by e-mail, the date of receipt on the message will be deemed the date on which such notice is transmitted.
AllerGuarder’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of AllerGuarder. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
Additional Terms May Apply
Additional terms may apply to certain products or services. In the event that there is a conflict between these Terms and any additional terms, the additional terms will control.
Contact Us
Please contact us if you have any questions about these Terms.
Daybros LLC dba AllerGuarder.
17 Copperbeech Lane
Lawrence N.Y. 11559
legal@AllerGuarder.com
___________________________________________________________________________________
Terms of Sale
AllerGuarder Terms of Sale
These terms of sale (“Terms”) apply to all orders accepted by AllerGuarder (“AllerGuarder”) for the sale of its bracelets and other electronic monitoring products (“Products”), except in the case that you and AllerGuarder have executed a written agreement that supersedes these Terms. To the extent the Products contain or consist of software in any form (“Software”), such Software is licensed to you, not sold, and only in accordance with the section entitled “Software License”, below. Terms such as “sell” and “purchase”, as used in these Terms, apply only to the extent the Products consist of items other than Software.
ORDERS
You can browse and place orders for our Products through www.allerguarder.com (the “AllerGuarder Store”). We’ll ask you for your name, phone number, e-mail address, shipping and billing address and other information so we can fulfill your order. When you place an order, AllerGuarder’s third-party payment service provider will collect your credit card details and charge your credit card account in connection with the order, and you agree to make all applicable payments in connection with any order placed by you. AllerGuarder does not view or store your credit card information. We store your shipping address so we can process your order through our fulfillment partner. If you are logged into your AllerGuarder account when you purchase something from the AllerGuarder Store, we associate that order with your AllerGuarder account. For more information on AllerGuarder’s data use practices please see the AllerGuarder Privacy Policy at www.allerguarder.com/privacy.html.
By placing an order through the AllerGuarder Store, you agree that: (i) any credit card information supplied by you is true and complete; and (ii) you will pay the applicable price listed, as well as any shipping and handling charges and applicable taxes. Products purchased by you are for personal or gift use and not for commercial use.
All orders, once accepted, are final.
You may also purchase our Products through third-party websites or retailers or through independent distributors or resellers. Such purchases may be subject to additional terms of sale as determined by these third parties.
PRICING
AllerGuarder can withdraw Products from the AllerGuarder Store at any time and for any reason. Prices listed through the AllerGuarder Store are stated in U.S. dollars, and do not include any shipping and handling charges or applicable taxes, which charges and taxes will be communicated to you before you place an order and you are responsible for paying such charges and taxes to AllerGuarder. You agree to indemnify and hold AllerGuarder harmless from and against any liabilities, interest, penalties or fees assessed against AllerGuarder arising from your failure to pay any such taxes. All Product prices are subject to change at any time.
ACCEPTANCE AND FULFILLMENT
All orders are subject to acceptance by AllerGuarder. After you place an order, you will receive one or more emails from AllerGuarder confirming that AllerGuarder has received and accepted your order. AllerGuarder reserves the right not to accept your order for any reason or no reason. AllerGuarder reserves the right to restrict multiple quantities of a Product being shipped to any one customer or postal address.
RESALE
Purchases made through the AllerGuarder Store are intended for end users only, and are not authorized for resale.
SHIPPING AND DELIVERY
AllerGuarder will pack the Products in accordance with its standard practices. Title to the Products (except to the extent that the Products consist of Software) and risk of loss will pass to you upon AllerGuarder’s delivery of the Products to the carrier. You acknowledge that all scheduled shipment dates are estimates only. AllerGuarder will make reasonable efforts to meet the scheduled shipment dates, but in no event will AllerGuarder be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery.
LIMITED PRODUCT WARRANTY
AllerGuarder warrants to the original purchaser that your Product shall be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of purchase. For full details on the Limited Product Warranty, please see www.AllerGuarder.com/returns-and-warranty.html.
COMPATIBILITY
You acknowledge that you have verified the compatibility of the Products you are purchasing with other required equipment (e.g., ensuring that your mobile device and/or operating system is compatible with the Product). You are solely responsible for determining the compatibility of the Products with other equipment, and you accept that lack of compatibility is not a valid claim under the warranty provided with your Products.
LIMITATIONS ON LIABILITY
IN NO EVENT WILL ALLERGUARDER BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, PERSONAL OR BODILY INJURY, DEATH, LOSS OF REVENUE, USE, PROFITS, DATA, OR GOODWILL) OR COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS OR THE PURCHASE, SALE, USE, OPERATION OR PERFORMANCE OF THE PRODUCTS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT ALLERGUARDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. ALLERGUARDER AND YOU HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL ALLERGUARDER’S LIABILITY TO YOU ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE ACTUAL AMOUNT PAID TO ALLERGUARDER BY YOU FOR THE PRODUCT THAT GIVES RISE TO THE CLAIM. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
SOFTWARE LICENSE
AllerGuarder grants to you a nonexclusive, nontransferable license to use the Software, in executable form, solely as embedded in the Products, solely for your internal, non-commercial use. You may not copy or modify the Software. You acknowledge that the Software contains trade secrets of AllerGuarder, and, in order to protect such trade secrets, you agree not to disassemble, decompile or reverse engineer the Software nor permit any third party to do so, except to the extent such restrictions are prohibited by law. AllerGuarder reserves all rights and licenses in and to the Software not expressly granted to you under this Agreement.
DISPUTE RESOLUTION
You agree that any dispute between you and AllerGuarder arising out of or relating to these Terms, or any other AllerGuarder products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.
GOVERNING LAW
The Terms and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of laws principles.
INFORMAL DISPUTE RESOLUTION
We want to address your concerns without needing a formal legal case. Before filing a claim against AllerGuarder, you agree to try to resolve the Dispute informally by contacting legal@AllerGuarder.com. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or AllerGuarder may bring a formal proceeding.
WE BOTH AGREE TO ARBITRATE
You and AllerGuarder agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
OPT-OUT OF AGREEMENT TO ARBITRATE
You can decline this agreement to arbitrate by contacting legal@AllerGuarder.com within 30 days of first accepting these Terms and stating that you (include your first and last name) decline this arbitration agreement.
ARBITRATION PROCEDURES
The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, New York City, New York, or any other location we agree to.
ARBITRATION FEES
The AAA rules will govern payment of all arbitration fees. AllerGuarder will pay all arbitration fees for claims less than $15,000. AllerGuarder will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
EXCEPTIONS TO AGREEMENT TO ARBITRATE
. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the AllerGuarder Products or services, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
NO CLASS ACTIONS
You may only resolve Disputes with AllerGuarder on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under our agreement.
JUDICIAL FORUM FOR DISPUTES
In the event that the agreement to arbitrate is found not to apply to you or your claim, you and AllerGuarder agree that any judicial proceeding (other than small claims actions) will be brought exclusively in the federal or state courts of New York County, New York. Both you and AllerGuarder consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
LIMITATION ON CLAIMS
Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the AllerGuarder Products or services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
AMENDMENT.
Subject to the termination and refund rights above, you agree that AllerGuarder reserves the right to amend the service and these terms at any time and for any reason.
GENERAL PROVISIONS
The parties disclaim application of the United Nations Convention on Contracts for the International Sale of Goods.
You may not assign or transfer these Terms, or any order accepted by AllerGuarder hereunder, in whole or in part, by operation of law or otherwise, without AllerGuarder’s express prior written consent. Any attempt to do so, without AllerGuarder’s consent, will be null and of no effect. AllerGuarder may freely assign these Terms.
AllerGuarder will not be responsible for any failure or delay in its performance under these Terms due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or acts of God.
The failure by AllerGuarder to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
These Terms constitute the complete and exclusive agreement between AllerGuarder and you regarding its subject matter and supersedes all prior or contemporaneous quotations, agreements, communications or understandings, whether written or oral, relating to its subject matter. Any waiver, modification or amendment of any provision of these Terms will be effective only if in writing and signed by duly authorized representatives of each party.
You will not export or re-export, directly or indirectly, the Products, or any technical information related thereto, or any direct products thereof, to any destination or person prohibited or restricted by the export control laws and regulations of the United States, without the prior authorization from the appropriate governmental authorities.
All notices required or permitted to be given under these Terms will be in writing and will be deemed given: (i) upon actual delivery, if made by personal service; (ii) three (3) days after mailing, if made by U.S. certified or registered mail; and (iii) one (1) business day after delivery to the courier or overnight delivery service, if made by courier or overnight delivery service. All notices will be addressed to such address as the party who is to receive the notice so designates by written notice to the other.