Tonal commercial purchase and subscription terms
ORDER FORM TERMS ADDENDUM
THIS ORDER FORM ADDENDUM (the “Addendum”) is made by and between Tonal Systems, Inc. (“Tonal”), and Participant, and is entered into pursuant to that certain Order Form entered into by the parties. The Agreement is effective as of the date of Participant’s initial Order Form (the “Effective Date”) and runs coterminous with any active Order Form. Defined terms used herein but not defined shall retain the meanings provided to them in the Purchase and Subscription Agreement or in the Order Form, as Applicable.
Use by Participant Personnel – Participant agrees that the use of Tonal Trainers and Services, as used by employees and independent contractors of the Participant (“Participant Personnel”), shall be governed by this Agreement (“Participant Personnel Use”). Participant acknowledges that, with respect to Participant Personnel Use, Tonal: (1) is providing its Services to Participant for Participant’s own business purposes and objectives; and (2) Participant is solely responsible for any and all Participant Personnel Use.
Use by Non-Participant Personnel – Participant agrees that any and all uses by anyone other than Participant who uses Participant’s Tonal Trainer(s) and Services (“Non-Participant Personnel”), is governed by Tonal’s Terms of Service, located at https://www.tonal.com/terms/ (“Terms of Service”) and Privacy Policy, located at https://www.tonal.com/privacy (the “Privacy Policy”).
PURCHASE AND SUBSCRIPTION AGREEMENT
This PURCHASE AND SUBSCRIPTION AGREEMENT (the “Agreement”) is made by and between Tonal Systems, Inc. (“Tonal”), and Participant. This Agreement incorporates by reference and governs each Order Form, including any addenda or exhibits, and each amendment to any of the foregoing. This Agreement is effective as of the date of Participant’s initial Order Form (defined below) or the date of Participant’s initial access to the Services, whichever is earlier (the “Effective Date”). For purposes of this Agreement, “Order Form” means Tonal’s ordering document signed by Participant that identifies the equipment and the services ordered by Participant. By submitting an Order Form, Participant agrees to all the terms set forth below.
1. Subscription and Services.
a. General. Each Order Form will set forth the number of Tonal fitness trainer systems (each, a “Tonal Trainer”) ordered by Participant, as well as the related subscription services and options provided by Tonal during the subscription period described in the Order Form (the “Subscription Period”), including (a) details regarding delivery to and installation at the premises identified in the Order Form or an attachment thereto (the “Premises”), (b) subscription details, which may include user/account volume, content access, and servicing (including Extended Servicing) (collectively, the “Services”). and (c) commercial limited warranty terms, .
b. Subscription Period. The Subscription Period set forth in the Order Form shall represent the minimum commitment term, irrespective of any shorter billing cycle (e.g. annual billing cycle). By accepting the Order Form, Participant is agreeing to be billed for the duration of the Subscription Period and cannot terminate or cancel the subscription prior to the expiration of the Subscription Period except as otherwise expressly permitted in this Agreement.
c. Extended Servicing. Tonal will make available to Participant one (1) pre-scheduled service visit at the Premises every 12-month period during the Subscription Period (“Extended Servicing”), subject to the terms and conditions of the Agreement. Contact Tonal customer support at hospitality.support@tonal.com for questions regarding Extended Servicing. During Extended Servicing, Tonal will inspect the Tonal Trainer and perform servicing deemed necessary by Tonal to maintain good working order of the Tonal Trainer. Failure to provide Tonal’s representatives with full access to the Tonal Trainer at the Premises at the scheduled time may result in forfeiture of Extended Servicing for the applicable 12-month period. Any unused Extended Servicing will be forfeited and will not carry over to subsequent 12-month periods. Extended Servicing is not a substitute for Participant’s proper maintenance and use of the Tonal Trainer in accordance with the Agreement; Participant must follow Tonal’s product specifications and operating procedures as further described in Section 3.c., which includes regularly inspecting the Tonal Trainer for damage, loose parts or other signs of wear and tear. Any improperly maintained or operated Tonal Trainer, as determined in Tonal’s sole discretion, is not eligible for Extended Servicing.
2. Shipping.
a. Title. Title to the Tonal Trainer and risk of loss will pass to Participant upon delivery of the Tonal Trainer to a carrier. b. Shipping Terms. Participant acknowledges that all scheduled shipment dates are estimates only. Tonal will make commercially reasonable efforts to meet the scheduled shipment dates, but in no event will Tonal be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery. Any estimated arrival or delivery date provided by Tonal is not a guarantee. Although Tonal will make commercially reasonable efforts to meet estimated delivery dates, delivery of the Tonal Trainer may take more or less time than estimated and Tonal disclaims any loss, damages, or liability from a delay in arrival or delivery. Participant represents that it will not refuse delivery of the Tonal Trainer and acknowledges that it is not entitled to a refund for any deliveries of the Tonal Trainer that are refused by Participant and returned by a carrier to Tonal.
c. United States Only. The Tonal Trainer is not offered or intended for sale outside of the United States. Tonal will not ship any Tonal Trainer outside of the United States, and Participant is solely and completely responsible for any purchase or use of the Tonal Trainer outside of the United States. To the extent permitted by applicable law, Tonal is not responsible or liable for any loss, damage, or other injury arising from, related to, and/or caused by Participant’s purchase or use of the Tonal Trainer outside of the United States. Participant is responsible for complying with (i) all U.S. export laws, regulations and restrictions, and (ii) all applicable laws and regulations of the country for which the Tonal Trainer is destined or in which the Tonal Trainer is used. Tonal is not liable or responsible if Participant violates any such laws and regulations.
3. Installation, Operation, and Removal of the Tonal Trainer; Promotion.
Upon Participant’s acceptance of an Order Form, Tonal will deliver the Tonal Trainer to Participant at the Premises in accordance with the delivery terms and timeline set forth in the Order Form. a. Self-Installation. If Participant elects to self-install, Participant is responsible for installation of the Tonal Trainer in accordance with the installation instructions provided by Tonal. Any liability, loss or damage resulting from Participant’s installation of the Tonal Trainer that is not strictly in accordance with Tonal’s instructions shall be the sole responsibility of Participant.
b. Tonal Installation. If Participant chooses the Tonal installation option on an Order Form, Tonal will arrange and be responsible for professional installation of the Tonal Trainer.
c. Installation and Operation Requirements. Participant is responsible for (i) maintaining the Premises and the Tonal Trainer in good working order and posting all appropriate health and safety notices; (ii) providing an installation location consistent with the specifications provided by Tonal, including the Installation Requirements located at https://knowledge.tonal.com/s/article/Installation-Requirements, incorporated herein by reference; and (iii) determining the suitability of the Products and Services for use by Participant and its users. Tonal shall not be responsible for any damages or liabilities arising from such commingling of equipment or accessories. Participant is solely responsible for itself and for any third parties it permits to use the Tonal Trainer and must ensure the Tonal Trainer is used in accordance with the safety and other specifications provided with the Tonal Trainer when shipped and as specified on Tonal’s website at https://knowledge.tonal.com/s/article/Safety-Recommendations.
d. No Refunds; Removal. Participant’s purchase of the Tonal Trainer(s) is final; Tonal does not issue refunds and does not permit returns (excluding any replacements issued under the applicable commercial limited warranty terms). Participant is responsible for the removal of the Tonal Trainer from the Premises. Any liability, loss or damage resulting from Participant’s removal of the Tonal Trainer that is not strictly in accordance with Tonal’s instructions shall be the sole responsibility of Participant. Participant is responsible for any restoration of paint or wall material or other work needed after any deinstallation of the Tonal Trainer.
e. Promotional Activities. Upon written approval by Tonal in accordance with (i) Tonal’s brand and marketing guidelines all (ii) all applicable state and federal law and regulation, Participant will have during the Term of this Agreement a limited right to use Tonal’s trademark, logos and other marketing collateral located at https://www.tonal.com/press/ (i.e., brand and imagery) (the “Tonal Material”) solely to engage in marketing and promotion of the Tonal Trainer located at Participant’s Premises via Participant’s website, app, social media accounts, signage and brochures. Any goodwill arising out of Participant’s use of the Tonal Material shall inure to Tonal’s benefit. In no event shall Participant depict Tonal or the Tonal Materials in any manner that suggests an endorsement of Participant’s Premises, product or services by Tonal.
4. Participant Representations and Warranties’s Personnel.
Participant hereby acknowledges and agrees that:
a. Participant is solely responsible for any and all uses by Participant Personnel of the Tonal products and Services, and assumes any and all liability resulting from such use by Participant Personnel.
b. Participant agrees not to make any representations, statements or claims with respect to Tonal or the Tonal products and services that exceed or are inconsistent with Tonal's own marketing materials or product documentation.
5. Insurance.
During the Term of this Agreement and for a period of one (1) year thereafter, Participant shall, at its own expense, maintain and carry in full force and effect the following insurance coverages with a reputable carrier satisfactory to Tonal:
a. Commercial General Liability with limits of not less than Two Million Dollars ($2,000,000) per occurrence and Three Million Dollars ($3,000,000) in the aggregate, including bodily injury, property damage, personal and advertising injury, products and completed operations coverage.
b. Workers' Compensation with coverage as required by applicable law.
c. Cyber Liability covering claims involving privacy violations, information theft, damage to or destruction of electronic information, intentional and/or unintentional release of private information, alteration of electronic information, extortion, and network security, with limits of not less than Two Million Dollars ($2,000,000) per occurrence.
d. Umbrella/Excess Liability with limits of not less than Five Million Dollars ($5,000,000) per occurrence, in excess of and following form of the underlying insurance described above.
e. Property Insurance covering all property owned or provided by Participant and used in connection with this Agreement against all risks of loss or damage with sufficient coverage amounts to replace such property.
Participant shall name Tonal as an additional insured on all liability policies. Prior to commencement of services under this Agreement and upon renewal of any policy, Participant shall provide Tonal with certificates of insurance evidencing the required coverage. Participant's insurance shall be primary and non-contributory with respect to any other insurance available to Tonal. Participant shall provide Tonal with thirty (30) days' prior written notice of any material change, cancellation, or non-renewal of the insurance coverage.
6. Fees and Payment.
a. General. Participant will pay Tonal the applicable fees described in the Order Form (the “Fees”). Participant will be responsible for full payment of the Fees whether or not it has installed Tonal Trainer hardware or commenced Services. Tonal reserves the right to change the Fees or applicable charges and to institute new charges at the end of the initial Subscription Period or then-current renewal Subscription Period, as the case may be. Full payment for invoices must be received by Tonal within thirty (30) days of Participant’s receipt of the invoice. Except as otherwise set forth herein or where set forth in an applicable Order Form, payment obligations are non-cancelable, Fees are non-refundable, and failure to use the Tonal Trainer and the Services is not a basis for refusing to pay Fees. Without limiting Tonal’s rights or remedies, unpaid amounts are subject to a finance charge of 2.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection (including reasonable attorneys’ fees).
b. Payment Methods. Payment must be made by ACH (automatic payment method). Participant will be responsible for the payment of any fees associated with an electronic funds transfer (ACH, bank institution fees). In the event Participant’s payment method is via credit card, Participant will be responsible to the issuer of the credit card for any transaction fees or related charges. Participant authorizes the card issuer to bill Fees to the credit card designated by Participant and pay all such amounts. Participant authorizes Tonal to charge the credit card account until either party cancels or terminates the applicable Order Form as set forth herein; provided that if payment is not received from the credit card issuer, the transaction is returned after the payment has been settled, otherwise known as chargeback, or if there are insufficient funds in the case of check or debit card payments, Participant agrees to pay all amounts due under the Order Form plus any applicable transaction fees.
7. Term and Termination.
a. Term. This Agreement, with respect to the Services, will continue from the Effective Date through the period specified in the Order Form (the “Term”) and will renew in accordance with applicable renewal terms in this Agreement. Tonal may terminate this Agreement at any time at the end of the then-current Subscription Period. If Participant materially breaches this Agreement, Tonal may terminate all or part of this Agreement at any time upon written notice to Participant.
b. Effect of Termination. Upon the effective date of termination of this Agreement, if Participant has failed to pay any Fees due under an Order Form, Tonal will have the right to immediately cease providing Services, in addition to any other rights (i.e., repossession of the Tonal Trainer, requiring return delivery to Tonal at Participant’s expense, retention of a security interest in the Tonal Trainer with the rights and remedies of a secured party under the applicable Uniform Commercial Code, and payment collections rights). Provisions of this Agreement that by their nature survive termination will continue in full force and effect.
8. Indemnification.
Participant agrees to indemnify, defend, and hold harmless Tonal, its employees, contractors, agents, officers, directors, successors and assigns, from any and all liability, claims, demands, damages (whether direct or indirect, incidental, consequential or otherwise), causes of action and expenses (including any court costs, witness costs, and attorneys’ fees) of any type or kind, alleging death, bodily harm, or property damage as a result of use of the Tonal Trainer where Participant failed to comply with the provisions of this Agreement. In the event of such claim Tonal will tender control of the defense to Participant and provide reasonable cooperation at Participant’s expense as requested by Participant.
9. Confidentiality.
Each party agrees that it will hold in strict confidence and not disclose the other party’s Confidential Information (as defined below) to any third party and to use the Confidential Information of the disclosing party only as expressly authorized and only for purposes of the services contemplated by this Agreement. Each party shall only permit access to the other party’s Confidential Information to those of its employees, officers, directors, consultants, agents and contractors having a legitimate need to know and who have signed confidentiality agreements containing terms at least as restrictive as those contained herein. Any reproduction of any Confidential Information of the other party by a receiving party shall contain any and all confidential or proprietary notices or legends which appear on the original. The receiving party may disclose Confidential Information of the other party if required pursuant to judicial order, a requirement of a governmental agency or by operation of law, provided that the receiving party notifies the disclosing party of any such requirement, and takes commercially reasonable measures to limit the disclosure to the extent disclosure is reasonably required. “Confidential Information” means any and all information whether commercial or technical relating to the business of the disclosing party, including without limitation, the details of any pilot program for the use of the Tonal Trainers at the Premises, business plans, technology, know-how, data, processes, methods, designs, specifications, customers and development plans, which are, when reasonably feasible, marked with an indicator such as “Confidential” or “Proprietary” or of a nature that a reasonable person would deem such information to be confidential; provided that Confidential Information does not include information which the receiving party can document: (a) is in the public domain or becomes public knowledge, through no fault of the receiving party; (b) was known to the receiving party at the time of disclosure or becomes known to the receiving party without breach of any confidentiality agreement; or (c) is independently developed by the receiving party without any use of or reference to the Confidential Information.
10. Disclaimers; Limitations of Liability.
AS FAR AS PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, (I) THE TONAL TRAINER AND ALL OTHER PRODUCTS AND SERVICES PROVIDED BY TONAL ARE PROVIDED ON AN “AS-IS” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR, AND (II) TONAL DISCLAIMS, AND PARTICIPANT IS SOLELY RESPONSIBLE FOR, ANY AND ALL LOSS, LIABILITY, OR DAMAGES RESULTING FROM ANY USE OF THE TONAL TRAINER OR THE SERVICES, INCLUDING INJURY, DAMAGE OR LOSS TO PARTICIPANT PERSONNEL, INVITEES, LICENSEES, GUESTS, THE PREMISES, THE TONAL TRAINER, AND ALL OTHER ITEMS AT THE PREMISES. IN NO EVENT WILL TONAL BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, EVEN IF ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES, FOR ANY CLAIM ARISING FROM OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, LOST REVENUE, LOST PROFIT, LOST DATA, OR PRIVACY, OR ANY OTHER CAUSE OF ACTION OR LEGAL OR EQUITABLE THEORY. WITHOUT LIMITING THE FOREGOING, TONAL WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM PARTICIPANT’S, PARTICIPANT’S PERSONNEL’S OR ANY THIRD PARTY’S USE OF OR INABILITY TO USE THE TONAL TRAINER OR SERVICES, INCLUDING DATA, INTERNET OR SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE. IN NO EVENT SHALL TONAL BE LIABLE FOR ANY DIRECT DAMAGES RELATED TO THIS AGREEMENT IN EXCESS OF THE FEES PAID BY PARTICIPANT TO TONAL FOR THE PRODUCTS AND SERVICES DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM.
11. Data Protection.
When Participant executes an Order Form and accepts this Agreement, Participant will enter certain identifying information such as name, phone number, email address, payment information, and shipping and billing address. Participant agrees on behalf of its employees, contractors, and other representatives that (a) Tonal or a third-party provider may store, process, and use that information for purposes of fulfilling Participant’s order; and (b) the information Participant provides is true and complete. Tonal’s Privacy Policy provides information about how Tonal collects, uses, and discloses personal information related to Participant’s order under this Agreement, which may include installation of Tonal’s apps, account creation, viewing Tonal’s products and services, making a purchase, or otherwise using the Tonal Services. Participant acknowledges on behalf of its Personnel that Tonal will collect, use, and disclose the personal information of Personnel as described in Tonal’s Privacy Policy.
12. Third-Party Software and Applications.
Participant agrees not to download and/or install any third-party software and/or applications on any Tonal hardware that are not expressly authorized by Tonal. The unauthorized downloading and/or installing of any such third-party software and/or applications is at Participant’s own risk and may void any applicable warranty, including the Tonal Commercial Limited Warranty (attached hereto), and Tonal disclaims all responsibility for any damage or injury that may result.
13. Arbitration Clause and Class Action Waiver.
a. Disputes That Must Be Arbitrated. The terms of this Section 13 apply to all Disputes between Participant and Tonal. “Dispute” means any disputes or claims (excluding those exceptions listed below) arising out of or related to this Agreement, the Tonal Trainer, the Services, or any aspect of the relationship between Participant and Tonal, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, including, without limitation, disputes or claims arising out of or relating to interpretation, application, enforceability, revocability or validity of these arbitration terms. The terms of this Section 13 do not apply to the following exceptions: (a) claims that qualify for small claims court, (b) claims exclusively related to the intellectual property or intellectual property rights of Participant or Tonal, (c) claims and/or equitable relief exclusively related to the Confidential Information of Participant or Tonal, and (d) an action for injunctive relief in a court of law to preserve the status quo while an arbitration proceeds. Nothing in this Agreement will preclude Participant from bringing issues to the attention of federal, state or local agencies and, if the law allows, Participant can seek relief against Tonal. This Section 13 only applies to Disputes and does not prevent either party from taking unilateral actions either is entitled to take under this Agreement. Likewise, Tonal may enforce the Agreement through actions like terminating or suspending Participant's use of the Service at any time without needing to arbitrate the decision first. If Participant or Tonal believe that the other has made a mistake about what actions this Agreement allows them to take (e.g., Participant disagrees with Tonal suspending or terminating Participant's access to the Services), that disagreement is a Dispute to which the binding individual arbitration requirements in this Section 13 would apply.
b. Informal Dispute Resolution. If Participant has a Dispute with Tonal, Tonal would like the opportunity to talk to Participant about it before Participant initiates an arbitration proceeding. Participant can send a notice of Participant's Dispute to Tonal at legal@tonal.com or by certified mail to the attention of Tonal’s Legal Department at: 69 Converse Street, Suite 200, San Francisco, CA 94103. In Participant's notice, Participant should include Participant's business and contact names, business address, and other contact information, a description of the nature and basis of Participant's dispute and the relief Participant is seeking.
c. Agreement to Binding Arbitration. DISPUTES WILL BE RESOLVED SOLELY THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND TONAL AND PARTICIPANT AGREES THAT TONAL AND PARTICIPANT ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.
d. Arbitration Procedures. Disputes may only be submitted to the American Arbitration Association (“AAA”) for resolution through binding arbitration in English before one arbitrator. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by Participant or by Tonal that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court of competent jurisdiction.
e. Federal Arbitration Act. This Agreement affects interstate commerce, and the enforceability of this Section 13 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq., to the extent permitted by law. As limited by the FAA, this Agreement, and the AAA rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability.
f. Waiver of Class or Consolidated Actions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PARTICIPANT AND TONAL WILL ONLY BRING DISPUTES OR CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE TONAL TRAINER, THE SERVICES, OR ANY ASPECT OF THE RELATIONSHIP BETWEEN PARTICIPANT AND TONAL IN AN INDIVIDUAL CAPACITY AND SHALL NOT SEEK TO BRING, JOIN OR PARTICIPATE IN ANY CLASS ACTIONS; CLASS ARBITRATIONS OR ANY OTHER KIND OF CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE PROCEEDINGS. If this Waiver of Class or Consolidated Actions is found to be unenforceable or unlawful such that any claims may proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction under the terms of Section 16 below and not brought in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration.
14. Notices.
Any notice required or permitted to be given under this Agreement shall be given in writing to the addresses above and may be delivered by (i) personal service, (ii) registered mail, postage prepaid, addressed to the other Party, (iii) overnight delivery services such as Federal Express, (iv) email with a follow-up copy by regular mail address to the other party; or (v) by any other mutually agreed method. Notices are effective once received.
15. Independent Contractors.
Neither party is, by reason of this Agreement or for any other reason, an agent or franchisee of the other party for any purpose whatsoever and neither party has any authority either expressed or implied to bind the other party on any obligation or undertaking. It is specifically understood that the relationship of the parties is that of independent contractors.
16. Applicable Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of California (including federal arbitration law), excluding its conflicts of law provisions, and regardless of Participant’s location. Any suit or proceeding arising out of or relating to this Agreement that is not subject to arbitration pursuant to Section 13 above, shall be brought only in a court located in the City and County of San Francisco, California, and the parties irrevocably submit to the personal and subject matter jurisdiction and venue of such courts and waive any objections as to inconvenient forum. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be awarded its costs and attorneys’ fees.
17. Assignment.
Participant may not assign, transfer or sublicense any of its rights or obligations under this Agreement without Tonal’s express prior written consent, which will not be unreasonably withheld.
18. Force Majeure.
Tonal will not be responsible for any failure to fulfill any obligation due to any cause beyond its control. Tonal will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations that is caused by an act or event beyond Tonal’s reasonable control, including acts of God, strikes, lock-outs or other industrial action by third parties, civil commotion, riot, terrorist attack, war, fire, explosion, storm, flood, earthquake, pandemic, epidemic or other natural disaster, failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
19. Entire Agreement.
This Agreement, together with the Order Form, Order Form Addendum and Tonal Terms of Service and Privacy Policy, is the entire agreement and understanding of the parties relating to its subject matter, and supersedes all prior agreements, communications and other understandings, whether written or oral, relating to that subject. Preprinted terms in Participant’s purchase orders, or other Participant ordering documents, or terms referenced or linked therein, will have no effect on this Agreement and are hereby rejected, regardless of whether they are signed, clicked through, or otherwise agreed to by Tonal and/or purport to take precedence over this Agreement. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) any exhibit, schedule or addendum to the Order Form or this Agreement, (3) the body of this Purchase and Subscription Agreement, and (4) the Tonal Terms of Service (excluding references to Limited Warranty and Terms of Sale) and Privacy Policy. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.” No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default. Failure or delay by Tonal to enforce any part of this Agreement will not constitute a waiver of Tonal’s rights against Participant and does not affect Tonal’s right to require future performance thereof.
20. Amendment.
From time to time Tonal may modify this Agreement. Unless another agreement in writing supersedes this Agreement, changes become effective for Participant upon renewal of the then-current subscription term or entry into a new Order Form after the updated version of this Agreement goes into effect.
LinkedIn(Participant):
SIGNATURE: _______________________________
NAME:_______________________________
TITLE: _______________________________
DATE:_______________________________
TONAL COMMERCIAL LIMITED WARRANTY
WHO DOES THIS WARRANTY COVER?
This commercial limited warranty (the “Warranty”) is issued by Tonal Systems, Inc. (“Tonal”, “we”, or “us”) to you, Participant, a commercial customer who purchased a new Tonal trainer or new Tonal-branded accessories directly from us (the “Product”). The Warranty covers only you, the original Product purchaser, and does not extend to any territories or countries outside the United States. This Warranty is in lieu of any other terms about the Product’s materials and workmanship and performance. The Warranty cannot be assigned or transferred to any subsequent purchaser or user and is not available to products that were purchased from any source other than Tonal.
WHAT DOES THIS WARRANTY COVER?
Tonal warrants that the Product is free from defects in materials and workmanship and will, under normal and intended use, function substantially in accordance with our Product documentation and technical specifications.
WHAT IS NOT COVERED BY THE WARRANTY?
Regardless of the above, the Warranty does not cover the following:
• Anything that is disclaimed in the Purchase and Subscription Agreement or Order Form between you and Tonal. • Software and software functionality.
• Damage or loss of access as a result of the termination, expiration or suspension of your account or applicable agreement. • Data loss and any costs associated with data recovery.
• Defects or malfunctions experienced during or caused by use not in conformity with Product documentation and technical specifications provided or made available by Tonal.
• Damage caused by misuse, accident, neglect, abuse, improper or unauthorized modification, alteration, handling or tampering, abnormal environmental conditions or acts of God.
• Damage to your property (including cosmetic or structural) that may result from installation or removal of the Product. • Damage caused by a Product that was not purchased directly from Tonal.
• Damage caused by improper or incorrect maintenance or repair carried out by a person not authorized by Tonal. • Damage caused by improper installation, relocation, or uninstallation carried out by a person not authorized by Tonal. • Damage caused by use with any third-party product.
• Damage caused to the Product in a location outside of the United States.
WHAT IS THE WARRANTY PERIOD?
The Warranty period starts on the date of your purchase of the Product and lasts until expiration of the applicable Subscription Period (as specified in the Order Form to which this Warranty is attached) for such Product. This period is not extended if Tonal repairs or replaces the Product.
HOW DO YOU SUBMIT A WARRANTY CLAIM?
Contact Tonal at hospitality.support@tonal.com to report any Product issues immediately upon discovery. Additionally, please copy your commercial sales representative on any service communication. Our team will reach out to you to attempt to help resolve your issue. If the issue cannot be addressed remotely, Tonal may dispatch a technician to further investigate and troubleshoot.
If your Product has a defect or malfunction covered by this Warranty, Tonal will repair, replace, or refund the purchase price of the Product at the sole discretion of Tonal. If Tonal determines that a Product should be replaced, the replacement may be a new, refurbished or comparable product. Tonal may not return the original Product to you.
Do not return any Product to Tonal without first receiving a Return Material Authorization (RMA) number and instructions for how to proceed. Tonal may require you to furnish proof of purchase and/or comply with other requirements before receiving Warranty service.
WHAT LAW GOVERNS THE WARRANTY?
The laws of the State of California, USA, govern this Warranty, without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction.
REPAIR, REPLACEMENT OR REFUND UNDER THIS WARRANTY IS YOUR SOLE AND EXCLUSIVE REMEDY AND TONAL’S SOLE LIABILITY. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, ANY IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR BASED ON COURSE OF DEALING OR TRADE, ARE DISCLAIMED, OR IF INCAPABLE OF BEING DISCLAIMED, LIMITED IN DURATION TO THE DURATION OF THIS WARRANTY. LIABILITY FOR LOST PROFITS, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, AND SPECIAL DAMAGES IS HEREBY EXPRESSLY EXCLUDED, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, LOST REVENUE, LOST PROFIT, LOST DATA, PRIVACY, OR ANY OTHER CAUSE OF ACTION OR LEGAL OR EQUITABLE THEORY. IN NO EVENT SHALL TONAL’S LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS WARRANTY EXCEED THE PRICE PAID BY YOU FOR PURCHASE OF THE PRODUCT. Some states do not allow limitation of implied warranty, so the limitations in this Warranty may not apply to you. This Warranty gives you specific legal rights, and you may also have other rights, which vary from state to state and country to country.