SOAPEN TERMS OF US
Effective Date: October 15, 2018
Last Updated Date: October 15, 2018
Thank you for visiting the SoaPen website (https://soapen.com/) (“Site”). We’ve designed this Site as: (i) a tool to assist parents, teachers and other adults teach children about proper hygiene and handwashing techniques, and (ii) a resource where parents, teachers and other adults may purchase SoaPen products (“Products”).
PLEASE BE AWARE THAT THE “ARBITRATION AGREEMENT; CLASS WAIVER; WAIVER OF TRIAL BY JURY” SECTION OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
When you use the Site or order the Products, you agree to these Terms. If you don’t agree with the Terms, or if you can’t agree to a valid and mutually binding, and enforceable agreement, then don’t use the Site or order Products.
SOAPEN SITE USERS
You may simply browse the Site or you may order Products, including posters created by SoaPen (“Poster”), or you may do both. If we think that your information is not accurate, current or complete, we may withdraw our permission for you to access our Site. We may change the Site or stop providing access to the Site.
These Terms also govern any order you make on our Site (“Order”). While we hope to expand our services, currently SoaPen only ships to addresses in the United States. We make no representations that the Site or our Products are available for use in other locations besides the United States.
[When you complete the Order for Products you have to provide us with accurate, current and complete information, and when you place an Order, we may confirm your address by sending an email to the email address you have provided and/or calling you to verify your Order.]
When you place an Order to purchase the Products, we may accept your Order by processing your payment and shipping the Product. We deem your Order accepted upon our delivery of the Products that you have ordered. We may require additional verifications or information before accepting any Order.
You accept the Products when you receive the shipment, and the title, and risk of loss, of the Products passes to you when we send the Product(s) to a common carrier. Any estimates for shipping depend on Product availability and payment processing time, and do not include the transit time.
All sales of Products are non-refundable.
You acknowledge and agree that the Products are currently in development and may be different than as described when shipped.
HOW TO PURCHASE PRODUCTS
1. General. You’ll need to provide us with the information to process your Order, including your shipping address and your billing information.
3. Orders. We reserve the right to refuse any Order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per Order. These restrictions may include Orders placed by or under the same customer account, the same credit card, and/or Orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an Order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the Order was made. We reserve the right to limit or prohibit Orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
4. Taxes. SoaPen’s fees are net of any applicable Sales Tax. If any Products, or payments for any Products or services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to SoaPen, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify SoaPen for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that SoaPen is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
5. Withholding Taxes. You agree to make all payments of fees to SoaPen free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to SoaPen will be your sole responsibility, and you will provide SoaPen with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
PRODUCT APPEARANCE AND PRICES
The Products, and certain products or services may be available exclusively online through the Site. These Products or services may have limited quantities and are subject to our return policy (see Limited Warranty section). We try to display our Products and their colors as accurately as possible. Having said that, the displayed colors of the Products will depend upon your computer monitor and we cannot guarantee that your monitor will accurately portray the actual colors of the Products. We reserve the right, but are not obligated, to limit the sales of our Products, or any applicable services, to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of the Products, or any other products or services that we offer. All descriptions of Products or Product pricing are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any Product at any time. Any offer for any Product or service made on this Site is void where prohibited.
It’s possible that the Site may display Products that are out-of-stock or discontinued, and Product prices are always subject to change. Unless we say otherwise when you submit your Order, all prices exclude shipping and handling or sales taxes, if applicable, which will be added to your total purchase price. You will use the Product only for non-commercial use and not for resale. You will not reverse engineer any Product or use the Product to create a competitive product.
YOUR RIGHTS AND RESTRICTIONS WHEN USING OUR SITE
We own all the software, code, proprietary methods and systems that we use on our Site (“Our Technology”). Our Technology is copyrighted by us under United States [and international copyright laws] and is subject to other intellectual property and proprietary rights and laws.
You must abide by all copyright notices, information, or restrictions contained in or attached to any of Our Technology. Furthermore, nothing in these Terms will grant you a license to Our Technology. Certain of the names, logos, and other materials displayed on Products and our Site constitute trademarks, tradenames, service marks or logos (“Marks”) of SoaPen. You are not allowed to use any of these Marks.
Ownership of all of the Marks and the goodwill related to the Marks remains with us. Any use of third party software provided in connection with the Site will be governed by such third parties’ licenses and not by these Terms.
Subject to these Terms, we grant you a limited license to use the Site for your non-commercial purposes. Unless we say otherwise in a separate license, your right to use any materials that you access or download through the Site is subject to the Terms. As a part of the Site, you may have access to materials that are hosted by another party.
You may not copy, modify, reproduce, republish, post, transmit, sell, offer for sale, or redistribute Our Technology or the Site any way without our prior written permission and the prior written permission of our applicable licensors.
Subject to the rights granted above, you agree not to revise any images, video, audio, data, and other information and materials that appear on our Site (“Content”), and you represent and warrant that you will not use any Content in any manner that:
Infringes the copyright, trademark, trade secret, or other intellectual property or proprietary right of others;
Is false or inaccurate or becomes false or inaccurate at any time;
Is discriminatory, unlawful, tortious, obscene, fraudulent, defamatory, harmful, threatening, pornographic, indecent, vulgar, harassing, discourteous, hateful, abusive or racially, ethnically, religiously, sexually or otherwise offensive, as determined by us in our sole discretion;
Discloses or provides information protected under any law, agreement or fiduciary relationship, including but not limited to proprietary or confidential information of others;
Misrepresents your identity in any way;
Contains any viruses, Trojan horses, spyware. malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
Advocates or encourages any illegal activity; or
Has the potential to create liability for us or cause us to violate the requirements of or to lose the services, in whole or in part, of our Internet service providers or other suppliers.
GENERAL RULES FOR YOUR CONDUCT
We want you and others to have a good experience on our Site. So, you agree not to, and represent and warrant that you will not do any of the following:
Conduct or promote any illegal activities while using the Site;
Attempt to reverse engineer or jeopardize the correct functioning of the Site, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Site;
Attempt to gain access to secured portions of the Site to which you do not possess access rights;
Use any high volume automatic, electronic or manual process to access, search or harvest information from the Site (including without limitation robots, spiders or scripts);
Interfere in any way with the proper functioning of the Site or interfere with or disrupt any servers or networks connected to the Site or disobey any requirements, procedures, policies or regulations of networks connected to the Site;
Use any robot, spider, other automatic device, or manual process to extract, “screen scrape,” monitor, “mine,” or copy any static or dynamic web page on the Site or the Content contained on any such web page for commercial use without our prior express written permission;
Impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or
Mirror or frame the Site or any Content, place pop-up windows over its pages, or otherwise affect the display of its pages.
LICENSE TO SOAPEN POSTERS
We own the copyright to the SoaPen Posters. You may order Posters and may use them under the Creative Commons license described here. The Posters, audio and video files, transcripts and/or information about a poster, are licensed to you via the Creative Commons license (CC BY -- NC -- ND 4.0 International). This means that you can use the SoaPen Posters for educational purposes as long as these license terms, and other terms in these Terms, are followed.
You can volunteer to give us ideas, thoughts, criticisms, improvements or other feedback related to Products or the Site (collectively “Feedback”). If you do volunteer to give us Feedback, then we can use the Feedback without compensating you, and you allow us to use the Feedback to modify our Products and the Site, and for no compensation.
DISCLAIMER OF WARRANTIES
SITE, AND ALL CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE ARE PROVIDED BY SOAPEN “WITH ALL FAULTS” AND ON AN “AS IS” AND “AS AVAILABLE” BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. SOAPEN MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS SITE OR THE CONTENT INCLUDED ON, OR OTHERWISE MADE AVAILABLE TO YOU THROUGH, THIS SITE, UNLESS OTHERWISE SPECIFIED IN WRITING, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ACCURACY. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE IS AT YOUR SOLE RISK. This section does not affect in any way our limited warranty for the Products purchased on the Site.
Limited Warranty: If a Product or its bottle or packaging is damaged upon your receipt of the Product, you may return the Product and we will replace it for you.
We make no warranty that the Site will meet your requirements, or that the Site will be uninterrupted, timely, secure, or error free; nor do we make any warranty as to the results that may be obtained from the use of the Site, or that defects in the Site will be corrected. You understand and agree that you will be solely responsible for any damage to your computer or loss of data that results from the download of any material. No advice or information, whether oral or written, obtained by you from us through the Site or otherwise will create any warranty, representation or guarantee not expressly stated in these Terms. This section does not affect in any way our limited warranty for the Products purchased on the Site.
LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT WE ONLY SELL THE PRODUCTS, LICENSE THE PRODUCTS, AND PROVIDE ACCESS TO THE SITE IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, LOST OPPORTUNITIES, OR BUSINESS INTERRUPTIONS OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO (I) YOUR USE OF OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE SITE, OR (II) YOUR LICENSING OF THE PRODUCTS, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THIS SITE, OR THE PRODUCTS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE, OR TERMINATE USE OF THE PRODUCTS. OUR TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE SITE OR USE OF THE PRODUCTS, IS LIMITED, IN AGGREGATE, TO THE GREATER OF (I) THE TOTAL AMOUNT OF THE ORDER GIVING RISE TO OUR LIABILITY AND (II) TEN DOLLARS (U.S. $10.00). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
You agree, to the extent permitted by law, to indemnify, defend and hold harmless SoaPen, our parents, subsidiaries, affiliates, officers, directors, co-branders and other partners, employees, consultants and agents (“SoaPen Parties”), from and against any and all third-party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) that such parties may incur as a result of or arising from: (i) your use of the Products, Site (except to the extent prohibited by law) or Products; (ii) your violation of these Terms; or (iii) your violation of any rights of any other person or entity.
This section explains your rights when receiving communications from us electronically. Since we conduct our business through the Internet, you need to consent to us providing you communications electronically. You (i) consent to receive communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that we provide to you electronically satisfy any legal requirement that such Communications would satisfy if it were in writing. Your consent to receive Communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us. Nothing stated in this section affects your non-waivable rights. You may withdraw your consent, but that withdrawal won’t change the legal validity and enforceability of any prior obligations communicated through the electronic Communications between us. Please keep us informed of any changes in your email or mailing address so that you continue to receive all Communications without interruption.
Assignment. These Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without SoaPen’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Dispute Resolution and Compliance. If you believe that SoaPen has not adhered to these Terms, please contact SoaPen by emailing us at info@SoaPen.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
Limitations Period. YOU AND SOAPEN AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS, THE PRODUCTS, OR THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this section (“Arbitration Agreement”) carefully. It is part of your contract with SoaPen and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Any claim or dispute in connection with your use of SoaPen, SoaPen’s Site (www.soapen.com), or any products or services sold or distributed by SoaPen, which cannot be resolved informally or in small claims court, will be resolved by binding arbitration on an individual basis rather than in court. The Federal Arbitration Act and federal arbitration law apply to this agreement.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. The award of the arbitrator is final and binding upon you and SoaPen.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to [Amanat Anand, CEO, SoaPen Inc. 16 Charles Place, Apt 3 D, Brooklyn, NY 11221]. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879.
The AAA’s rules govern payment of all filing, administration and arbitrator fees. SoaPen will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. SoaPen also will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
SoaPen and you agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. In the event that this class waiver is deemed invalid or unenforceable, neither SoaPen nor you are entitled to arbitration and instead claims and disputes will be resolved in a court located in New York, New York. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
Release. You hereby release the SoaPen Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Site, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Site. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
Force Majeure. SoaPen will not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Notice. Where SoaPen requires that you provide an e-mail address, you are responsible for providing SoaPen with your most current e-mail address. In the event that the last e-mail address you provided to SoaPen is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, SoaPen’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to SoaPen at the following address: SoaPen, [SoaPen Inc. 16 Charles Place, Apt 3 D, Brooklyn, NY 1122] Attn: [Amanat Anand]. Such notice will be deemed given when received by SoaPen by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.