DATE OF LAST UPDATE: JUNE 1, 2017
TERMS & CONDITIONS
THIS DOCUMENT IS A BINDING CONTRACT (the “Agreement”) between you and DH Cubed, LLC. (“DH Cubed, LLC”, “we”, or “us”). It governs your purchase of the enclosed OneTen (“The Device(s))” or any other device DH Cubed may own, your use of our (and our licensors’) software and firmware in the device(s), (“Licensed Software”), and related matters. The agreement is comprised of these Terms; the OneTen (Devices) Disclosures, Warranty & Returns policy attached to these Terms (“Disclosures”); and DH Cubed’s Terms of Service, www.dhcubed.com/terms-of-service (“TOS”). The Disclosures and TOS are incorporated by reference and are to be read together with these Terms, and you agree to operate the Device(s) in accordance with the instructions in the Disclosures. The OneTen is a “product” under the TOS. In the event of a conflict among components of the Agreement, the order of precedence is, first, these Terms of Sale; second, the Disclosures; and third, the TOS.
YOUR PURCHASE OR USE OF THE ONETEN (DEVICE) WILL CONSTITUTE YOUR ACCEPTANCE OF THIS AGREEMENT IN FULL.
ARBITRATION NOTICE: THESE TERMS CONTAIN AN ARBITRATION CLAUSE. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND WE AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND WE WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
- Arbitration, Class waiver, Jury Waiver.
- All claims and disputes, including all statutory claims and disputes, arising out of or relating to this agreement or your use of the product will be resolved by binding arbitration on an individual basis, except that you and we are not required to arbitrate any dispute in which either party seeks equitable relief for alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents, and either you or we may resolve disputes in small claims court on an individual basis where small claims court proceedings are available.
- Arbitration Rules. The Federal Arbitration Act governs this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association (“AAA”). If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of arbitration, except to the extent they conflict with this Agreement. The AAA Consumer Arbitration Rules are available online at adr.org or by calling AAA at 1-800-778-7879. The arbitration will be conducted by a single neutral arbitrator. Any claims or disputes involving less than $10,000 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the amount sought is $10,000 USD or more, the right to a hearing will be determined by the arbitral forum’s rules. Judgement on an arbitral award may be entered in any court of competent jurisdiction.
- Non-appearance Arbitration. If non-appearance arbitration is elected, the arbitration will be conducted by phone, online, written submissions, or a combination of the three, at the election of the party initiating arbitration. The arbitration will not involve personal appearance by parties or witnesses unless the parties mutually agree otherwise.
- Arbitrator’s Authority. The arbitrator will decide the arbitrator’s jurisdiction and the rights and liabilities, if any, of you and us. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have authority to grant motions dispositive of all or part of any claim or dispute, to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s award is final and binding upon you and us.
- Waiver of Jury Trial. YOU AND WE WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and we are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited and more efficient than rules applicable in court and are subject to very limited review by the court. In any litigation between you and us over whether to vacate or enforce an arbitration award, YOU AND WE WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATOR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, and notwithstanding anything else to the contrary in this Agreement, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in Section 2 of these Terms.
- No part of the procedures will be open to the public or the media. All evidence discovered or submitted at the hearing is confidential and may not be disclosed, except by written agreement of the parties, pursuant to court order, or unless required by law. Notwithstanding the foregoing, no party will be prevented from submitting to court of law any information needed to enforce this arbitration agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- Right to Waive. Any rights and limitations set forth in this arbitration agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this arbitration agreement.
- Opt-Out. You may opt out of this arbitration agreement. If you do so, neither you nor we can force the other to arbitrate. To opt out, you must notify us in writing no later than 30 days after first becoming subject to this arbitration agreement. Your notice must include your name and address, your DH Cubed username and the email address you used to set up your account (if you have one), and an unequivocal statement that you want to opt out of this arbitration agreement. Send your notice to: DH Cubed, LLC, ATTN: Arbitration Opt-Out, 5118 2nd Ave NW, Seattle, WA 98107
- Small Claims. Notwithstanding the above, either you or we may bring an individual action in small claims court.
- Arbitration Agreement Survival. This arbitration agreement will survive the expiration of the OneTen (Device(s)) warranty and termination of your relationship with us.
- Notwithstanding any provision in the Agreement, we agree that if DH Cubed, LLC makes any future material change to this arbitration provision, it will not apply to any individual claim(s) of which you had already provided us notice.
- Exclusive Venue. To the extent, the parties are permitted under this Agreement to initiate litigation in a court, you and we agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in small claims court, if small claims court proceedings are available for the dispute, or the U.S. District Court of Washington. If, however, the Federal Court would lack original jurisdiction, then all such claims and disputes will be litigated exclusively in small claims court (if available) or Superior Court of Washington, King County. You and we consent to the personal jurisdiction of both courts.
- Licensed Software Grant, Restrictions, Waivers, & Disclaimers. We grant you a personal, worldwide, royalty-free, non-assignable, non-exclusive, revocable, non-sub-licensable license to use the Licensed Software and accompanying documentation (“Documentation”) on the following terms. This license terminates automatically if you fail to comply with the restrictions described below. You may use the Licensed Software solely as incorporated into the OneTen (Device(s)) and for your personal use. You may not, and will not allow any third party to (or facilitate their ability to): (i) alter, modify, adapt, translate, reverse engineer, decompile, or disassemble (except to the extent applicable laws specifically prohibit such restrictions) the Licensed Software.; (ii) attempt (a) to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection mechanisms in the Licensed Software, including without limitation any such mechanism used to restrict or control the functionality of the Licensed Software, or (b) to derive the source code or the underlying ideas, algorithms, structure or organization from the Licensed Software; (iii) create derivative works based on the Licensed Software, or any portion thereof or of the Documentation; (iv) copy the Software or the Documentation; (v) remove any proprietary notices or labels on the Licensed Software or Documentation; or (vi) use the Licensed Software in any manner other than as embedded in the OneTen (Device(s)). None of the Licensed Software may be downloaded, exported, or re-exported in contravention of applicable laws and regulations. The Licensed Software is licensed, not sold, here-under. Title, ownership rights, and IP rights in and to the Software and Documentation shall remain in (as applicable) DH Cubed, LLC and its licensors. NONE OF DH CUBED, LLC, DH CUBED’S LICENSORS, OR THEIR REPSECTIVE LICENSORS, MAKES ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED, WITH REPSECT TO THE LICENSED SOFTWARE, AND WITHOUT LIMITING THE FOREGOING, EACH EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS WITH REPSECT TO THE LICENSED SOFTWARE. (THE FOREGOING DOES NOT LIMIT OUR OWN, SEPARATE WARRANTY WITH RESPECT TO THE ONETEN (DEVICE(S)) AS SET OUT IN THE DISCLOSURES.) UNDER NO CIRCUMSTANCES SHALL ANY OF DH CUBED, LLC, DH CUBED, LLC’S LICENSORS, OR THEIR REPSECTIVE LICENSORS BE LIABLE TO YOU FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
- Subject to subsection 1.f of these terms, if any provision of this Agreement is found to be unenforceable, then that provision will be severed from this Agreement and not affect the validity and enforceability of any remaining provisions.