THE BRAIN STIMULATOR, INC. TERMS & CONDITIONS OF SALE
PLEASE READ THIS DOCUMENT CAREFULLY!
IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT ORDER/KEEP YOUR PRODUCT.
NOTE: These Terms of Sale apply to purchases made from The Brain Stimulator, Inc. by phone, email or the internet.
These Terms of Sale (“Agreement”) apply to your purchase of products and/or services and support (collectively “Product”) sold by The Brain Stimulator, Inc. (“The Brain Stimulator”). By placing your order for Product, you accept and are bound to the terms of this Agreement. If you have placed an order but do not wish to be subject to these Terms of Sale, you must promptly cancel your order before it enters production and becomes non-cancelable.
1. Payment Terms; Orders; Quotes; Interest. Terms of payment are within The Brain Stimulator’s sole discretion and unless otherwise agreed to by The Brain Stimulator, payment must be received by The Brain Stimulator prior to The Brain Stimulator’s acceptance of an order. Payment for the products will be made by credit card or some other prearranged payment method unless credit terms have been agreed to by The Brain Stimulator. Invoices are due and payable within the time period noted on your invoice, measured from the date of the invoice. The Brain Stimulator may invoice parts of an order separately. Your order is subject to cancellation by The Brain Stimulator, in The Brain Stimulator’s sole discretion. The Brain Stimulator is not responsible for pricing, typographical or other errors in any offer by The Brain Stimulator and reserves the right to cancel any orders arising from such errors. Invoices must be paid within 30 days of the invoice date.
2. Shipping Charges; Taxes; Title; Risk of Loss. Shipping, handling and tax are additional unless otherwise expressly indicated at the time of sale. Title to products passes from The Brain Stimulator to the customer upon shipment to the customer. Loss or damage that occurs during shipping by a carrier selected by The Brain Stimulator is The Brain Stimulator’s responsibility. You must notify The Brain Stimulator within 30 days of the date of your purchase, invoice or acknowledgement if you believe any part of your purchase is missing, wrong or damaged. Unless you provide The Brain Stimulator with a valid and correct tax exemption certificate applicable to your purchase of Product and the Product ship to location, you are responsible for sales, duties, import fees, and any and all other taxes associated with the order. Shipping and delivery dates are estimates only.
3. Not For Resale or Export. You agree to comply with all applicable laws and regulations of the various states and of the United States. You agree and represent that you are buying for your own internal use only, and not for resale or export.
4. Product Not A Medical Device. YOU THE PURCHASER AND ALL USERS (COLLECTIVELY THE “USER”) UNDERSTAND AND AGREE THAT ALL ELECTRONIC DEVICES SOLD BY THE BRAIN STIMULATOR ARE NOT PROFESSIONAL MEDICAL DEVICES, AND HAVE NOT BEEN REVIEWED OR APPROVED BY THE US FOOD AND DRUG ADMINISTRATION. THE BRAIN STIMULATOR MAKES NO REPRESENTATION OR CLAIM THAT ANY ELECTRONIC DEVICE SOLD BY THE BRAIN STIMULATOR ASSISTS, TREATS, CURES, PREVENTS OR PROVIDES ANY THERAPEUTIC BENEFITS FOR ANY MEDICAL CONDITION OR AILMENT. THE USER FURTHER UNDERSTANDS AND AGREES THAT USER SHALL CONSULT USER’S PHYSICIAN REGARDING THE POTENTIAL BENEFITS AND RISKS OF TRANSCRANIAL DIRECT CURRENT STIMULATION (“tDCS”), PROPER SAFETY PROTOCOLS FOR tDCS AND USER’S PHYSICAL AND MENTAL CONDITION BEFORE ATTEMPTING USE OF ANY ELECTRONIC DEVICES SOLD BY THE BRAIN STIMULATOR FOR tDCS PURPOSES.
5. WARNING. DO NOT USE ANY ELECTRONIC DEVICES SOLD BY THE BRAIN STIMULATOR IF YOU HAVE A HISTORY OF EPILEPSY, OR ANY METALLIC OR ELECTRONIC IMPLANTS SUCH AS A PACEMAKER OR A HEART RATE MONITOR. ADDITIONALLY, DO NOT USE ANY ELECTRONIC DEVICES SOLD BY THE BRAIN STIMULATOR IF YOU ARE UNDER THE AGE OF 18 (EIGHTEEN) YEARS OLD.
6. 30 DAY RETURN POLICY. If you are unsatisfied with your purchase from The Brain Stimulator for any reason, you have 30 days from the date of purchase to request a full refund. You may return any Product (excluding electrodes) purchased directly from The Brain Stimulator. To qualify for a refund, all the following conditions must be met: (a) a Return Merchandise Authorization (RMA) must be requested from The Brain Stimulator’s customer service team within 30 days of your purchase date (to request an RMA, contact The Brain Stimulator directly at [email protected]); (b) Returned Product must be in good physical condition (not physically broken or damaged); and, (c) all accessories originally included with your purchase must be included with your return, unless otherwise directed by The Brain Stimulator. The RMA number must be included along with your returned Product. Shipping and handling charges, gift-wrap fees, and taxes paid (e.g., state, customs, VAT) are not refundable. You are responsible for and must prepay all shipping charges and you shall assume all risk of loss or damage to the Product while in transit to The Brain Stimulator. If you return Product to The Brain Stimulator (a) without an RMA from The Brain Stimulator or (b) without all parts included in the original package, The Brain Stimulator retains the right to either refuse delivery of such return or charge you a restocking fee of 15% of the original price of the product or the retail value of the missing accessories, whichever is higher. Refunds will be processed and paid within 2 weeks of The Brain Stimulator’s receipt of Product. For quality control reasons, this 30 day return policy does not apply to electrodes which have been removed from their original packaging.
7. 365 DAY LIMITED WARRANTY. The Brain Stimulator warrants the electronic devices and other products manufactured byThe Brain Stimulator (for purposes of this section, the “The Brain Stimulator Manufactured Products”), and only theThe Brain Stimulator Manufactured Products, against defects in materials and workmanship under normal use for a period of ONE YEAR (365) days from the date of retail purchase by the original purchaser (“Warranty Period”). Under this Limited Warranty, if a hardware defect arises and a valid claim is received by The Brain Stimulator within the Warranty Period, at its option and to the extent permitted by law, The Brain Stimulator will either (1) repair the The Brain Stimulator Manufactured Products at no charge, using new or refurbished replacement parts or (2) exchange the The Brain Stimulator Manufactured Products with new or refurbished The Brain Stimulator Manufactured Products. In the event of a defect, to the extent permitted by law, these are your sole and exclusive remedies.
A replacement The Brain Stimulator Manufactured Product or part assumes the remaining warranty of the original Product or one year (365) days from the date of replacement or repair, whichever is longer. When a The Brain Stimulator Manufactured Product or part of the The Brain Stimulator Manufactured Product is exchanged, any replacement item becomes your property and the replaced item becomes The Brain Stimulator’s property. Parts provided by The Brain Stimulator in fulfillment of its warranty obligation must be used in The Brain Stimulator Manufactured Products for which warranty service is claimed.
Instructions to Obtain Warranty Service: To obtain warranty service, you must first contact The Brain Stimulator directly, then deliver the The Brain Stimulator Manufactured Product, freight prepaid, in either its original packaging or packaging providing an equal degree of protection, to the address specified by The Brain Stimulator. In accordance with applicable law, The Brain Stimulator may require that you furnish proof of purchase details and/or comply with registration requirements before receiving warranty service.
The Limited Warranty does not apply to any (a) products and services other than the The Brain Stimulator Manufactured Product, (b) non-The Brain Stimulator hardware products, (c) consumables (such as batteries), or (d) software, even if packaged or sold with the The Brain Stimulator Manufactured Product or embedded in the The Brain Stimulator Manufactured Product. Refer to any licenses accompanying the software for details of your rights with respect to its use.
The Brain Stimulator does not warrant that the operation of the The Brain Stimulator Manufactured Product will be uninterrupted or error-free. The Brain Stimulator is not responsible for damage arising from failure to follow instructions relating to the The Brain Stimulator Manufactured Product’s use.
This warranty does not apply to a The Brain Stimulator Manufactured Product or part of the The Brain Stimulator Manufactured Product that has been altered or modified (e.g., to alter functionality or capability) by anyone who is not an authorized representative of The Brain Stimulator or if the The Brain Stimulator Manufactured Product is coupled or connected to any device, or inserted or installed in a system, not provided by The Brain Stimulator. In addition, this Limited Warranty does not apply: (a) to damage caused by use with non-The Brain Stimulator products; (b) to damage caused by accident, abuse, misuse, flood, fire, earthquake or other external causes; (c) to damage caused by operating the The Brain Stimulator Manufactured Product outside the permitted or intended uses described by The Brain Stimulator or with improper voltage or power supply; or (d) to damage caused by service (including upgrades and expansions) performed by anyone who is not an authorized representative of The Brain Stimulator. Recovery and reinstallation of software programs and user data are not covered under this Limited Warranty.
This Limited Warranty does not cover the cost of returning the The Brain Stimulator Product to The Brain Stimulator; this is your responsibility.
EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY INCLUDING THE WARRANTY OF MERCHANTABILITY, THE WARRANTY OF FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE, THE WARRANTY OF NON-INFRINGEMENT, AND OF ALL OTHER OBLIGATIONS OR LIABILITIES OF THE BRAIN STIMULATOR, AND IT NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR THE BRAIN STIMULATOR ANY OTHER LIABILITIES IN CONNECTION WITH THE SALE OF THE PRODUCTS.
THIS LIMITED WARRANTY STATES THE EXCLUSIVE AND SOLE REMEDY, WHETHER FOR BREACH OF WARRANTY, CONTRACT, OR IN TORT (INCLUDING STRICT LIABILITY AND NEGLIGENCE) AND THE ENTIRE EXTENT OF THE BRAIN STIMULATOR’S LIABILITY FOR DEFECTIVE OR INOPERATIVE PRODUCTS. IN NO EVENT SHALL THE BRAIN STIMULATOR BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. IF FOR ANY REASON ANY OF THE FOREGOING LIMITATIONS ARE VOIDED OR ARE NOT EFFECTIVE, THE BRAIN STIMULATOR’S LIABILITY FOR DAMAGES, IF ANY, SHALL NOT EXCEED THE PAYMENTS MADE TO THE BRAIN STIMULATOR FOR THE PRODUCTS.
Some states do not allow the exclusion or limitation of incidental or consequential damages, or allow limitations on how long an implied warranty lasts, so the above limitations or exclusions may not apply to you. This warranty gives you specific legal rights, and you may also have other rights that vary by state to state.
8. ASSUMPTION OF RISK. YOU THE PURCHASER AND ALL USERS (COLLECTIVELY THE “USER”) IS AWARE OF THE INHERENT RISKS OF INJURY, INVOLVED IN TRANSCRANIAL DIRECT CURRENT STIMULATION (“tDCS”), INCLUDING WITHOUT LIMITATION RISKS DUE TO, EXPOSURE TO ELECTRICAL CURRENTS APPLIED IN tDCS. USER IS AWARE OF THE RISKS OF INJURY AND PROPERTY DAMAGE THAT MAY RESULT FROM, AMONG OTHER CAUSES, THE ACTIVE OR PASSIVE NEGLIGENCE OF THE BRAIN STIMULATOR AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (COLLECTIVELY, “RELEASED PARTIES”), INCLUDING WITHOUT LIMITATION THE RISK OF DEFECTS IN THE DESIGN OR MANUFACTURE OF THE PRODUCT OR THE ABSENCE OF WARNINGS OR INSTRUCTIONS REGARDING PROPER USE OF THE PRODUCT FOR tDCS PROCEDURES. USER IS VOLUNTARILY ENGAGED IN tDCS WITH KNOWLEDGE OF THE RISKS OF INJURY, AND OTHER RISKS, AND ASSUMES ANY AND ALL KNOWN AND UNKNOWN RISKS OF INJURY AND PROPERTY DAMAGE THAT MAY RESULT FROM USE OF THE PRODUCT FOR tDCS.
9. RELEASE OF LIABILITY. USER RELEASES RELEASED PARTIES FROM ALL LIABILITY TO USER AND USER’S PRINCIPALS, EMPLOYEES, AGENTS, REPRESENTATIVES, GUARDIANS, SUCCESSORS, ASSIGNS, HEIRS, CHILDREN, AND NEXT OF KIN FOR ALL LIABILITY, CLAIMS, DAMAGE, OR DEMANDS FOR PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE, ARISING FROM OR RELATED TO THIS AGREEMENT OR TO USE OF THE PRODUCT, WHETHER THE INJURY, DEATH, OR PROPERTY DAMAGE RESULTS FROM USE OF THE PRODUCT FOR tDCS OR ANY OTHER PURPOSE. THIS RELEASE INCLUDES, WITHOUT LIMITATION, ANY PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE CAUSED BY THE ACTIVE OR PASSIVE NEGLIGENCE OF ANY OF THE RELEASED PARTIES. USER BEARS SOLE RESPONSIBILITY FOR ANY LOSS.
10. KNOWING AND VOLUNTARY AGREEMENT. USER ACKNOWLEDGES THAT USER HAS CAREFULLY READ THIS AGREEMENT, UNDERSTANDS ITS CONTENTS, AND UNDERSTANDS THAT THIS AGREEMENT INCLUDES AN ASSUMPTION OF THE RISK OF THE RELEASED PARTIES’ NEGLIGENCE AND A RELEASE OF THEIR LIABILITY. USER ACKNOWLEDGES THAT THE BRAIN STIMULATOR IS MATERIALLY RELYING ON THIS WAIVER.
11. Governing Law; Jurisdiction. This Agreement shall be governed by and enforced in accordance with California law as applied to contracts entered into in California by California residents to be performed entirely within the State of California.
12. Limitation of Actions. No action, regardless of form, arising out of or in any way connected with any of the transactions under this Agreement or the articles sold hereunder may be brought by you or any user of the Product more than one year after such cause of action shall have accrued.
13. Entire Agreement This Agreement constitutes the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or understandings, inducements or conditions, express or implied, written or oral, between the parties with respect hereto. The express terms hereof control and supersede any course of performance or usage of the trade inconsistent with any of the terms hereof.
14. Dispute Resolution and Binding Arbitration. YOU AND THE BRAIN STIMULATOR ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN USER AND THE BRAIN STIMULATOR, its agents, employees, successors, assigns, direct and indirect subsidiaries, and any third party providing any products or services to you in connection with your purchase (collectively “The Brain Stimulator”) arising from or relating in any way to the purchase or use of Product, this Agreement, its interpretation or the breach, termination or validity thereof, the relationships which result from this Agreement (including relationships with third parties who are not signatories to this Agreement), The Brain Stimulator’s advertising or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION in San Jose, California. The arbitrator shall have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitration shall be administered by the American Arbitration Association (AAA) (or a substitute forum if AAA is unavailable). Arbitration proceedings shall be governed by this provision and the applicable procedures of the selected arbitration administrator, including any applicable procedures for consumer-related disputes, in effect at the time the claim is filed.
User agrees to an arbitration on an individual basis. In any dispute, NEITHER USER NOR THE BRAIN STIMULATOR SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER USERS, OR ARBITRATE OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration).
The arbitrator shall be empowered to grant whatever relief would be available in court under law or in equity. This transaction shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (FAA). Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. The Brain Stimulator will be responsible for initial payment of all arbitration/arbitrator fees. The arbitrator may apportion arbitration fees and award reasonable fees under the standards for fee shifting provided by law. Information on AAA rules is available at the following telephone number and URL: American Arbitration Association, (800) 778-7879, www.adr.org.