TritonWear Terms of Service
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING AND/OR USING THE TRITON AND ITS RELATED WEBSITE, APPLICATION AND TOOLS. THIS IS INTENDED TO BE A BINDING AGREEMENT, ENFORCEABLE AGAINST YOU, AND BY CLICKING THE “ACCEPT” BUTTON BELOW, YOU AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS SET FORTH HEREIN.
These Purchase Terms & Conditions (the “Agreement”) by and between TritonWear Inc., an Ontario corporation (“TritonWear”), and you as the identified customer that has accepted this Agreement (the “Customer"). This Agreement is entered into as of the day that the Customer clicks the “accept” button (the “Effective Date”).
WHEREAS TritonWear has developed a wearable device for aquatic athletes (the “Triton”). The Triton measures a swimmer’s individual performance and may gather other analytics, and transmits that data (the “Data”) in real-time to the TritonWear application (the “App”) which is accessible on a tablet or other smart device. All of an individual swimmer’s key performance metrics are calculated, logged, and tracked on the App through unique swimmer profiles (“Profiles”) which provide in-depth insight into an athlete’s performance over time; and
WHEREAS the Customer intends to purchase one or more Tritons pursuance to the electronic purchase confirmation or communication to which these Purchase Terms & Conditions are attached and have been accepted (the “Purchase Confirmation”).
NOW THEREFORE in consideration of the mutual covenants and obligations contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, TritonWear and the Customer (collectively, the “Parties”) agree as follows:
ARTICLE 1 – CAPACITY; USERS
1.1 Capacity. The word “you” in this Agreement refers to the Customer. In accepting this Agreement you hereby represent and warrant that you have the capacity to enter into a legal agreement in the province, state, territory or country in which you reside. If you do not have the capacity to enter into a legal agreement, you may not purchase the Triton and/or access to the App unless a parent or legal guardian agrees and consents to the terms and conditions set forth herein on your behalf. In allowing an individual who lacks capacity to purchase the Triton and/or access to the App, the parent or legal guardian is hereby bound by this Agreement.
1.2 Users. You, as the Customer, hereby acknowledge and agree that you will not cause or permit any Triton to be used by any individual except in connection with a properly created Profile in the name of such individual.
ARTICLE 2 – SCOPE
2.1 Purchase and Sale. TritonWear agrees to sell to the Customer, and the Customer agrees to purchase, the number of Tritons and Profiles as set forth in the Purchase Confirmation.
2.2 Profile Availability. TritonWear further agrees to make all Profiles purchased as set forth in the Purchase Confirmation available promptly following shipment of the applicable Triton’s purchased as set forth in the Purchase Confirmation.
2.3 Priority of Terms. For the avoidance of doubt, if any terms and/or conditions set forth in the Purchase Confirmation are in conflict with terms and/or conditions set forth in this Agreement, the terms and/or conditions set forth in the Purchase Confirmation shall control.
ARTICLE 3– PRICE/PAYMENT
3.1 Package & Pricing.
In consideration of the fulfillment of TritonWear’s obligations in accordance with this Agreement, the Customer agrees to pay TritonWear the purchase price set forth in the Purchase Confirmation (the “Purchase Price”), which shall include the cost of the Triton and any fees for the period(s) of service set forth in the Purchase Confirmation. Unless otherwise set forth in the Purchase Confirmation, all prices and amounts are set forth in United States Dollars.
You will be required to pay the Purchase Price as set forth in the Purchase Confirmation at such times as set out in the Purchase Confirmation. Unless otherwise specified in your Purchase Confirmation:
if you elect a Monthly service package option, you will be required to pay on a monthly basis for the period set out in such Purchase Confirmation for the length of time set out in the Purchase Confirmation. For the avoidance of any doubt, no refund will be available for any advance payment; and
if you elect an Annual or Bi-Annual service package option, you will be required to pay annually or bi-annually, in advance, for the period set out in the Purchase Confirmation. For the avoidance of any doubt, no refund will be available for any advance payment.
If you fail to pay any portion of the Purchase Price set out in section (b) above in a timely manner, or attempt to terminate the Purchase Confirmation in advance of the completion of the Term, the fees for the remainder of the Term shall become immediately due and payable, together with any additional costs that TritonWear may incur in collection of the overdue fees.
In consideration of your payment of the Purchase Price, you will receive one (1) Triton unit in accordance with the service package option selected.
We will arrange shipment of your Triton as promptly as possible, but TritonWear does not guarantee any particular date for shipment and will have no liability if shipment is later than any particular target. Unless otherwise set forth in the Purchase Confirmation, any taxes or duties payable in connection with the shipment of a Triton shall be the responsibility of the Customer.
If you elect to terminate this Agreement prior to shipment of a purchased Triton, you will not be entitled to a refund of all or any portion of the Purchase Price; provided, that if the Triton is not shipped within thirty (30) days from the date of your order (or the specified target date of your order, if any), then you shall be entitled to terminate this Agreement with respect to such Triton and will receive a full refund of the Purchase Price.
Any annual fees associated with the use of a Triton shall be in accordance with TritonWear’s subscription pricing. Such pricing may be adjusted from time to time by TritonWear in connection with any general adjustment to the pricing of TritonWear’s products and services; provided, that the pricing offered to you will never be more than the pricing offered to other TritonWear customers receiving similar products and services, and any adjustment to pricing will be published on our website and/or communicated to you at least two (2) weeks prior to the effective date of any such adjustment.
3.2 Payment. Unless otherwise set forth in the Purchase Confirmation (which shall control in the event of any discrepancy), payments will be due on the Effective Date and on each period following the Effective Date, based on the purchase period selected (monthly, annually, or bi-annually) so long as the subscription is maintained. All amounts referred to in this Agreement are in the form of currency set forth in the Purchase Confirmation and are payable in that form of currency by credit card or bank transfer unless otherwise agreed to by the Parties in writing.
3.3 Additional Costs. You hereby acknowledge and agree that you will be responsible for all shipping and handling costs, and for any duties, tariffs or other taxes payable in connection with the transactions contemplated in the Purchase Confirmation, whether or not such costs and/or other amounts are set forth or specifically contemplated in the Purchase Confirmation.
ARTICLE 4– GENERAL PROVISIONS
4.1 Warranty. Subject to the exceptions listed below, TritonWear warrants each Triton to be free from defects in material and workmanship for a period of one (1) year (the “Warranty Period”) covering parts and labour from the commencement of the Warranty Period. The Warranty Period shall commence on the date of shipment by TritonWear. The Customer acknowledges that EXCEPT AS STATED ABOVE, ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESSED OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED AND THE CUSTOMER ASSUMES ALL RISKS AND LIABILITY RESULTING FROM USE OF ALL GOODS. TRITONWEAR NEITHER ASSUMES NOR AUTHORIZES ANY PERSONS TO ASSUME FOR TRITONWEAR ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OR USE OF THE GOODS SOLD, AND THERE ARE NO VERBAL AGREEMENTS OR WARRANTIES COLLATERAL TO OR AFFECTING THIS WRITTEN WARRANTY. THE PARTIES ACKNOWLEDGE THAT THIS EXCLUSION OF WARRANTIES AND THE LIMITATION OF LIABILITIES BELOW ARE REASONABLE AND CONSTITUTE THE BASIS OF THE BARGAIN.
4.2 Limitation of Liability. TRITONWEAR’S LIABILITY WITH RESPECT TO ANY TRITON AND THE APP, AND OTHERWISE PURSUANT TO THIS AGREEMENT, IS LIMITED TO THE REPAIR OF ANY DEFECTS OR, AT TRITONWEAR’S OPTION, THE REPLACEMENT OF THE DEFECTIVE PRODUCT WITH THE SAME OR SIMILAR PRODUCT. REPLACEMENT AND EXCHANGE PARTS / PRODUCTS WILL BE WARRANTED FOR THE REMAINDER OF THE ORIGINAL WARRANTY PERIOD. IN NO EVENT SHALL TRITONWEAR BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY GENERAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, IN EXCESS OF SUCH REPAIR OR REPLACEMENT, ARISING OUT OF OR RELATING TO THE TRANSACTIONS CONTEMPLATED HEREIN EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.3 TritonWear IP. Each Triton and the App, and all intellectual property rights therein (including without limitation, copyrights, patents, trade secrets, trademarks, moral rights and other intellectual property rights, in and to each Triton and the App, all modifications, changes, enhancements, or additions thereto) are owned by TritonWear.
4.4 Aggregation of Data. The Customer grants TritonWear the right to anonymize the Data (including without limitation all Data collected in connection with all users of any purchased Triton) so that it does not identify specific individuals, nor contains any personal and confidential information of the Customer (“Anonymous Data”). Customer agrees that TritonWear (i) will own the Anonymous Data, (ii) may create derivative works from and extract information from the Anonymous Data and combine Anonymous Data (hereafter “Aggregate Data”), to use the Aggregate Data on an Aggregate Basis (as defined below) in the furtherance of TritonWear's current and/or future business activities, and (iii) may disclose and publish Aggregate Data on an Aggregate Basis to any party through any means. “Aggregate Basis” means that TritonWear combines parts of information collected or processed from Customer (that does not contain any individual’s name) with other information from any or all other customers and users that use its products or in a manner that does not disclose any individually identifiable information about the Customer or its users or any specific transactions the Customer has engaged in.
4.5 Marketing. The Customer agrees that TritonWear may, and is entitled to, exploit, publish and otherwise use the Customer’s name, any names associated with purchased Profiles, and any logo, trademark or other information identified in the Purchase Confirmation as Marketing Information (collectively, “Marketing Information”) in connection with the marketing of TritonWear and its business. The Customer hereby perpetually licenses to TritonWear the Customer’s right, title and interest (if any) in, to, and under any such Marketing Information including, but not limited to, privacy, copyright, moral rights, and rights to publicity, and the Customer hereby represents to TritonWear that it has the right to grant such license and agrees to indemnify TritonWear for any costs and/or damages incurred by TritonWear in connection with any claim with respect to the use of such Marketing Information pursuant to this Agreement. TritonWear may use such Marketing Information, without additional consideration, for any advertising, publishing or other business purposes on behalf of TritonWear during or after the term of this Agreement.
4.6 Term. The terms of this Agreement shall remain in effect, on the same terms and conditions as provided herein, unless, one Party notifies the other Party in writing of the termination of this Agreement at least 30 days prior to the effective date of such termination (the period from the date hereof to the date of such termination, the “Term”). If the Purchase Confirmation shall specify a term of service, the neither Party may notify the other Party or terminate this Agreement prior to the term of service set out therein. Upon termination by either Party, all unpaid charges related to the Triton and App become immediately due and payable, together with any fees set out in 3.1(c) herein. Except as set forth in Section 3.1(d), upon termination by the Customer, any amounts paid by the Customer to TritonWear prior to termination shall be non-refundable.
4.7 Survival. The provisions of Articles 1 and 4 herein shall survive the termination of this Agreement.
4.8 Waiver; Amendment. No waiver, modification or amendment to any of the terms and conditions of this Agreement shall be effective unless agreed in writing by all of the Parties.
4.9 Assignment. The Customer may not assign any of its rights or obligations under this Agreement, whether by merger, consolidation, operation of law or otherwise; any attempted assignment shall be null and void and shall result in the termination of this Agreement.
4.10 Severability. If any part of this Agreement is found to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of this Agreement which shall remain in full force and effect.
4.11 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. The Parties hereby irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Ontario and located in the City of Kitchener for any legal proceedings arising out of this Agreement or the performance of the obligations hereunder.
4.12 Notices. All notices under the terms of this Agreement shall be given in writing and sent by email, registered mail or facsimile transmission or shall be delivered by hand to the addresses set forth in the Purchase Confirmation. All notices shall be presumed to have been received on the business day (in the Province of Ontario) after they are hand delivered or confirmed received by nationally recognized courier service, confirmed email or other electronic communication mechanism, or five (5) business days (in the Province of Ontario).
4.13 Entire Agreement. This Agreement together with the Purchase Confirmation and any other documents referred to herein shall constitute the entire agreement between the Parties with respect to the subject matter hereof and shall replace all prior promises or understandings, oral or written.