Purchase and Subscription Agreement
KASIEL SOLUTIONS INC. (“KASIEL” “WE” “US”) IS THE PROVIDER OF THE WEARABLE ALERT DEVICE CALLED ORA (THE “ORA DEVICE”) AND IS THE OWNER AND OPERATOR OF THE WEBSITE LOCATED AT www.oraforyou.com (“WEBSITE”), THE IOS AND ANDROID COMPATIBLE, SUBSCRIPTION-BASED, MOBILE APPLICATION (THE “APP”, WHICH COLLECTIVELY, WITH THE ORA DEVICE IS THE “ORA SOLUTION”) AND WHICH COMMUNICATES WITH THE ORA DEVICE TO SUBSCRIBER (“YOU”) AND PERMITTED END USERS (THE “SERVICE”), ALL AS FURTHER DESCRIBED IN THIS PURCHASE AND SUBSCRIPTION AGREEMENT (THE “AGREEMENT”).
BY PURCHASING THE ORA SOLUTION, YOU HEREBY SIGNIFY THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT, AND AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT DO NOT PURCHASE OR USE THE SERVICE OR SOLUTION OR ANY COMPONENT OF THE SOLUTION.
- Additional Hardware/ORA Solution Requirements. The Wearer requires a smartphone that is enabled with Bluetooth technology, and all members of the Network also require a smartphone in order to use the ORA Solution and Service. All smartphones must have a data plan, and must allow the App to use data in order to receive the full benefit of the ORA Solution. The Wearer and the Network members, and not Kasiel, are responsible for providing their own smartphones, and for all fees associated with the purchase of a smartphone, and for purchasing a data plan and paying any monthly fees associated with such a plan.
- Purchase Terms and Fees.
a. Territory. The ORA Solution is currently only available in Canada and the United States. If we add additional shipping locations, we will update this Agreement.
b. Pre-Order Purchase Terms. Subscribers are able to pre-order the ORA Solution and accompanying accessories (“Accessories”) on the Website prior to the ORA Solution being available for shipment. If You pre-order the ORA Solution we will ship the ORA Solution to You once it is available in accordance with the ORA Device Delivery terms described in section 3(d), below. When You submit Your pre-order, we will provide You with an estimate of when the ORA Solution will be available for delivery. Any such shipping date is an estimate only, and may change depending on a variety of factors including our manufacturer’s schedule. The shipping dates are subject to change at any time without notice. Please note that our inventory and offerings may change slightly from when You place Your pre-order, to when the ORA Device is ready to be shipped. If We don’t have exactly what You pre-ordered, We will notify You and provide You with the opportunity to either substitute the goods for another product of equal retail value, or to cancel Your order and receive a full refund.
c. ORA Solution and Accessories Payment Terms. Regardless of when You order the ORA Device and/or Accessories, and subject to the payment terms relative to the subscription fees described in section 3(f) below, the full purchase price of the ORA Solution and/or Accessories will be charged to Your credit card at the time You check-out Your order on the Website and proceed with processing the transaction. All payments will be collected by our payment gateway provided and hosted by Shopify.
d. ORA Solution and Accessories Delivery. If You are pre-ordering the ORA Solution and/or Accessories, we will use commercially reasonable efforts to ship the ORA Device, any Accessories and all accompanying specifications, documentation, instruction manuals, and other materials (“Documentation”) and ancillary hardware, including the adapter for the ORA Device, to You within five (5) days after the release date of the ORA Solution. If You are purchasing the ORA Solution after the ORA Device has been released, we will use commercially reasonable efforts to ship the ORA Device and Documentation to You within five (5) business days after the date You process Your transaction on this website and/or we receive Your order. The actual delivery date after shipment will depend on the shipping terms You have selected, and the availability and capabilities of the carrier. Kasiel shall select the carrier in its sole discretion, and Subscriber shall be responsible for all freight, packing, insurance and other shipping related expenses. Risk of loss for the ORA Device, and all Accessories, ancillary hardware and Documentation will pass to Subscriber upon Kasiel’s delivery of such items to the carrier.
e. Service Subscription. The subscription for the Service will not be activated until the ORA Device is received by You and the Service is ready for use (the “Service Commencement Date”). We will notify You when the subscription for the Services has been activated. A subscription is required in order to enable the ORA Device to transmit alerts to the Wearer’s Network. A subscription permits an unlimited number of individuals to download and install the App and join a Wearer’s Network, subject to the requirement that each member of the Network have their own account for the App. Network members may not share accounts or log-in details.
f. Subscription Fees and Payments. Subscriptions for the Service may be purchased on an annual basis (the “Subscription Term”) and will automatically renew on the anniversary of the Service Commencement Date unless terminated by You by providing Kasiel with at least thirty (30) days’ written notice of Your intention to terminate Your subscription for the Service. The subscription fees are payable in advance by credit card, and can be paid either once annually or on a monthly basis. If You elect to pay for the entire annual subscription fee upfront, You will be charged the entire subscription fee at the time You purchase the ORA Solution. If You choose to pay the subscription fee on a monthly basis, You will be charged for the first month of the Subscription Term (which will be applied to cover the first month of the Services starting on the Service Commencement Date), and shall thereafter be charged the applicable subscription fees at the start of each month during which You have an active subscription for the Services.
g. Taxes. All fees listed on the Website in connection with the ORA Solution, including the subscription fees and shipping fees are exclusive of tax. Subscriber shall be responsible for the payment of all applicable taxes, including without limitation import duties, sales tax, value added taxes and any other local, provincial, state or federal taxes, duties, levies, tariffs and other similar charges.
h. Export Control. You acknowledge and agree that the ORA Solution and Documentation may be subject to export and import controls under the regulations of Canada and other countries, and You shall comply with all export and import control regulations of such countries. You shall not use the ORA Solution or any components thereof or Documentation for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation.
i. ORA Device Warranty. You hereby acknowledge and understand that Kasiel is not the manufacturer of the ORA Device, and we do not make any representations or warranties in respect of goods and products not manufactured by Us. To the extent contractually and legally permitted, Kasiel shall pass through to You any transferrable warranties, indemnities and remedies in respect of the ORA Device. Kasiel makes no further representations or warranties, express or implied in respect of the ORA Device.
j. Returns. If You are dissatisfied with Your purchase for any reason, subject to the terms of this Agreement, You may return the ORA Solution for a full refund within forty-five (45) days after the date of purchase. All returns and eligibility for refunds are subject to the following conditions:
- A Return Merchandise Authorization (RMA) number must be requested from our customer service team within 45 days of Your purchase date. To request an RMA, email firstname.lastname@example.org;
- Returned ORA Devices must be unused and in the same condition as when it was received, and not broken or damaged (other than manufacturer’s defects);
- You must include all accessories that came with the ORA Device when it was delivered;
- You must include the RMA number with Your returned ORA Device;
- You are responsible for all shipping and handling fees arising in connection with a return of the ORA Device, and You assume all risk of loss or damage to the ORA Device while it is transit from You to Kasiel; and
- If You return the ORA Device to Kasiel (a) without an RMA number or (b) without all parts and accessories including in the original packaging, we reserve the right to either refuse the return, or charge You a restocking fee of the greater of fifteen percent (15%) of (i) the original price of the ORA Device or (ii) the retail value of the missing accessories.
Refunds will be processed and paid within two (2) weeks after Kasiel’s receipt of the ORA Device, and all ancillary parts and Accessories.
Shipping and handling fees, all sales, value added, local, provincial, state and federal taxes and duties (including import duties) and gift wrap fees are non-refundable.
- Support. During the term of this Agreement, Kasiel provides support for the ORA Solution to Subscribers, Wearers and the Network support by email at email@example.com, phone 306-291-0927 between the hours of 9:00am and 5:00pm CST, and by way of the FAQ section (https://oraforyou.com/pages/help) of the Website. If You contact us by email, we will use best efforts to respond to You within two (2) business days.
- Proprietary Rights.
b. Reservation of Rights. Kasiel and its licensors shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and all other intellectual property rights), in and to the ORA Solution and Documentation. Subject to the limited rights expressly granted in this Agreement, Kasiel reserves all rights, title and interest in and to the Kasiel ORA Solution and Documentation. No rights are granted to You pursuant to this Agreement other than as expressly set forth in this Agreement.
c. Restrictions. You shall not (and shall not allow any third party to): (a) modify, translate, reverse engineer, decompile, or disassemble the ORA Solution and/or Documentation except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other license timing or use restrictions that are built into the ORA Solution; (c) sell, rent, lend, transfer, distribute, license, or grant any rights in the ORA Solution and/or Documentation in any form to any person without the written consent of Kasiel; (d) remove any proprietary notices, labels, or marks from the ORA Solution and/or Documentation; (e) unbundle any component of the ORA Solution and/or Documentation; or (f) copy or use any ideas, features, or functions of the ORA Solution and/or Documentation to build a ORA Device or service that is competitive with the ORA Solution and/or Documentation.
e. Feedback. Kasiel may use all suggestions, comments and other feedback relating to any aspect of the ORA Solution and Documentation provided by You, the Wearer or the Network ("Feedback") in the ORA Solution or in any other Kasiel ORA Device or services (collectively, "Kasiel Offerings"). Accordingly, You represent and warrant and agree that: (a) Kasiel is not subject to any confidentiality obligations in respect to the Feedback; (b) the Feedback is not confidential or proprietary information of You or any third party and You have all of the necessary rights to disclose the Feedback to Kasiel; (c) Kasiel (including all of its successors and assigns and any successors and assigns of any of the Kasiel Offerings) may freely use, reproduce, publicize, license, distribute, and otherwise commercialize Feedback in any Kasiel Offerings; and (d) You are not entitled to receive any compensation or re-imbursement of any kind from Kasiel in respect of the Feedback.
a. Definition of Confidential Information. As used in this Agreement, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the ORA Solution(s) and Documentation, Data, technology and technical information, specifications and ORA Solution designs. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
b. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose other than for the activities contemplated by this Agreement, except with the Disclosing Party's prior written permission. For greater certainty, You shall not disclose any performance, functionality, benchmarking, or feature-related information about the ORA Solution(s) that is not publicly ascertainable through use of the ORA Solution, review of Kasiel’s Website, its promotional materials, and the like.
c. Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
d. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
e. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
- Disclaimer. The use of the ORA Solution requires the Wearer and each of the members of the Network to have a smartphone. It is Your responsibility to ensure that Your smartphone functions, has cellular service and a data plan, is Bluetooth enabled (if you are a Wearer), is charged and is properly maintained, and fit for use in connection with the ORA Solution. Kasiel shall not be liable in any way whatsoever for any losses, injuries, or other harms or damages that You, the Wearer or any members of the Network may incur, including property damage, bodily injury or death as a result of such individual’s failure to maintain their smartphone, ensure the smartphone is charged, and to use the ORA Device in accordance with the specifications set forth in the Documentation. You should read all safety notices and instruction manuals included in the Documentation before using the ORA Solution. You understand and agree that any use or reliance by You on any User communications is at Your own risk and that we bear no responsibility for the failure, interruption, delay, loss, etc. of any User communications however caused including, without limitation, by reason of failures for which we are responsible and even those of which we were aware or ought to have been aware. You use the ORA Solution at Your own risk. The accuracy of the data collected by the ORA Solution is not intended to be medical or scientific data, and cannot and does not match medical or scientific measurement devices. The ORA Solution is not intended to replace any health care or other regimes suggested by medical and other professionals. The ORA Solution does not, and is not intended to diagnose, cure or prevent any disease. You should use common sense and good judgment when relying on any information, data or materials provided by the ORA Solution.
- Warranties. EXCEPT FOR ANY EXPRESS WARRANTIES PROVIDED IN THIS AGREEMENT, THE SOLUTION AND DOCUMENTATION PROVIDED BY KASIEL UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS. KASIEL MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. USE OF THE SOLUTION AND USE OF ANY INFORMATION OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SERVICE IS AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR ANY OTHER LOSS THAT RESULTS FROM DOWNLOADING OR USING ANY SUCH PRODUCT OR MATERIAL.
- Limitation of Liability. IN NO EVENT SHALL KASIEL HAVE ANY LIABILITY UNDER THIS AGREEMENT TO SUBSCRIBER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, COST TO PROCURE REPLACEMENT GOODS, DATA CHARGES, COSTS TO PROCURE HARDWARE NECESSARY FOR USE OF THE SOLUTION, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS), DAMAGE TO YOUR MOBILE DEVICE OR COMPUTER, ERRORS, MISTAKES, OR INACCURACIES IN THE MATERIALS ON THE WEBSITE, ANY BUGS, VIRUSES, TROJAN HORSES, OR ANY OTHER FILES OR DATA THAT MAY BE HARMFUL TO COMPUTER OR COMMUNICATION EQUIPMENT OR DATA THAT MAY HAVE BEEN TRANSMITTED TO OR THROUGH THE WEBSITE OR APP, OR ANY ERRORS OR OMISSIONS IN ANY MATERIAL ON THE WEBSITE OR ANY OTHER LOSS OR DAMAGE OF ANY KIND ARISING FROM OR RELATING TO YOUR USE OF THE SERVICE, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN THE EVENT THAT KASIEL IS FOUND LIABLE UNDER ANY THEORY OF LIABILITY, OUR TOTAL AGGREGGATE LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED THE TOTAL AMOUNT OF MONIES PAID BY YOU TO US IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.
- Term and Termination.
a. Term. This Agreement is effective as of the date that it is entered into by You, and continues in full force and effect until You terminate Your subscription or we terminate this Agreement in accordance with section 10(b), below.
c. Survival. The following clauses will survive termination of this Agreement: Proprietary Rights, Confidentiality, Disclaimer, Warranties, Limitation of Liability, Survival and General.
- Availability and Updates. Kasiel may alter, suspend, or discontinue the ORA Solution or any part thereof at any time and for any reason or no reason, without notice. The Website, Service and/or the App may be unavailable from time to time due to maintenance or malfunction of computer or network equipment or other reasons. Kasiel may periodically add or update the information and materials on this Website and/or the App without notice.
- Security. Information sent or received over the Internet is generally unsecure and Kasiel cannot and does not make any representation or warranty concerning security of any communication to or from the Website or the App or any representation or warranty regarding the interception by third parties of personal or other information. You are responsible for safeguarding the password that You use to access the Service and You are responsible for any activities or actions under Your password. You agree to keep Your password secure. Kasiel will not be liable for any loss or damage arising from Your failure to comply with these requirements.
LAST UPDATED: January 19, 2017.