SOLOSHOT TERMS AND CONDITIONS
TABLE OF CONTENTS
1. GOVERNING TERMS
2. ACCEPTANCE OF PAYMENT REQUIRED TO CREATE A BINDING ORDER
3. H4 HAS SOLE DISCRETION TO ACCEPT ALL ORDERS
4. EXTENSIONS OF CREDIT
5. H4’S DISCRETION TO SET PRICES
6. RIGHT TO WITHDRAW ORDER
7. RETURN POLICY
8. DELIVERY DATES
9. OWNERSHIP OF PRODUCT IN TRANSIT
10. PURCHASER’S DUTY TO EXAMINE SHIPMENT
11. PAYMENT TERMS
12. SECURITY INTEREST
13. CUSTOMS AND IMPORT/EXPORT CONTROL LAWS
14. LIMITED RIGHT OF RESALE
15. SUGGESTED PRICE GUIDELINES
16. INJUNCTIVE RELIEF
17. WARRANTY POLICY
18. LIMITATIONS OF LIABILITY
19. CUSTOMER INDEMNFICATION PROVISIONS
20. H4 INDEMNFICATION PROVISIONS
21. TRADEMARK, WEBSITE AND INTELLECTUAL PROPERTY MATTERS
22. DMCA TAKEDOWN PROCEDURES
23. NOTICE TO CALIFORNIA USERS
24. NOTICE TO NEW JERSEY USERS
25. CONFIDENTIAL INFORMATION
26. CUSTOMER REPRESENTATIONS
27. FORCE MAJEURE PROVISIONS
28. CLERICAL AND TYPOGRAPHICAL ERRORS
29. LIMITATIONS ON ASSIGNMENT
30. NOTICE PROVISIONS
31. SURVIVAL OF AGREEMENT INEVENT OF PARTIAL INVALIDITY
32. BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER
33. VENUE AND FORUM SELECTION
34. SAFETY INSTRUCTIONS
35. USAGE INSTRUCTIONS
These Terms and the documents referred to herein also govern all purchases (each an “Order”) of goods (“Products”) from H4 Engineering, Inc. d/b/a Soloshot (“H4”) by any Customer (the “Customer”). Submission of an Order to H4 shall constitute acceptance by Customer of these Terms. H4 objects to any terms proposed in Customer’s purchase order, proposal, acknowledgement or other Customer forms that add to, vary from or conflict with these Terms. Any such proposed terms shall be null and void and these Terms constitute the complete and exclusive statement of the terms and conditions between H4 and Customer. These Terms may be modified only by a written instrument executed by authorized representatives of both H4 and Customer. If the Order has been issued by H4 in response to Customer’s offer, then issuance of this Order by H4 constitutes an acceptance of Customer’s offer subject to the express condition that Customer agrees to these Terms and acknowledges that these Terms constitute the entire agreement between H4 and Customer with respect to the subject matter hereof and of Customer’s offer. Customer shall be deemed to have so assented and acknowledged unless Customer notifies H4 to the contrary in a writing signed by Customer’s authorized representative within ten (10) working days of receipt of this Order.
2. No Order shall be binding upon H4 until either payment has been accepted or the order itself accepted and acknowledged in writing by H4 at its principal offices, which may be delivered by mail or electronic communication.
3. Acceptance of any Order is subject to credit approval and acceptance by H4 in its sole discretion. If Customer’s credit becomes unsatisfactory to H4, H4 reserves the right to cancel an Order upon notice to Customer and without liability to H4. Customer shall provide such credit information, references, and assurances as requested by H4 at any time. Customer authorizes such references to release credit information about Customer’s accounts and warrants that all such information and assurances shall be true and correct to the best of Customer’s knowledge. Customer agrees to indemnify and hold harmless such references and H4 and the employees and agents of either from any and all liability resulting from the released information and the extension of credit hereunder. In the case of new Customer, H4 reserves the right to refuse to supply Products in accordance with an Order made by Customer until satisfactory references have been received by H4 and an account has been approved and opened. Customer agrees that the continued solvency of Customer is a precondition to any extension of credit made by H4 to Customer. In the event of a sale of, or a partial or total change in ownership in Customer or any of Customer’s approved locations/outlets, the new owner(s) (or existing owners in the event of a change of location or expansion to additional locations) must apply to H4 for approval as an authorized dealer in each such location; Customer will not be eligible to obtain Products from H4 until each such application is approved in writing by an authorized officer of H4. On request, Customer agrees to provide H4 a statement representing that Customer is and remains solvent. H4 reserves the right where genuine doubts arise as to Customer’s financial position, to suspend delivery or performance of any Order or any part of installment thereof without liability until payment of satisfactory security for payment has been provided.
At this time, we are not accepting orders from the following countries: Afghanistan, Belarus, Brazil, The Democratic Republic of Congo, Fiji, Haiti, Lebanon, Myanmar, Yemen, Russia, Sri Lanka, Syria, Ukraine, Venezuela, Zimbabwe, Burundi, Central African Republic, Cuba, Islamic Republic of Iran, Iraq, Democratic People's Republic of Korea, Libyan Arab Jamahiriya, Somalia, and Sudan.
4. As a condition of the continued extension of credit by H4, Customer agrees, at H4’s request, to provide to H4 updated financial information, and if requested, to provide timely an annual or other periodic financial statement to H4. If any statement of information submitted by Customer to H4 is false when made, H4 may, at its option, declare all indebtedness immediately due and payable, subject to the terms of Clause 11.
5. Except as otherwise specified by H4 in writing all billing for Products will be at the price indicated on the Order. H4’s quotations are not binding on H4, and will only become applicable upon acceptance by H4 of an Order from Customer. If at the date of delivery of any Products, there has been any increase in any costs from the quoted price, the price payable for the Products may, at the request of H4, be increased accordingly, and the price as varied shall be binding on both parties. H4 shall have the right to increase the prices of goods stated on any Order by any amount equal to any additional duty, tariff, tax, or other charge imposed as a result of any action by the U.S. government or any foreign nation’s government, any state or local government, or any agent or agency thereof. Where applicable, quotations in a currency other than U.S. Dollars are based on the rate of exchange at the time of quoting and, unless otherwise states, the price may be subject to revision up or down if a different rate of exchange is in effect at the date of invoice. Unless otherwise stated on the face of an Order, stated prices do not include any customs duties, sales, use, value added, excise, goods and service, federal, state, local or other similar taxes. All such duties or taxes shall be paid by Customer, or in lieu thereof, Customer shall provide H4 with an appropriate exemption certificate.
6. No accepted Order shall be modified or cancelled by Customer, except upon H4’s written agreement, in which case, it shall be subject solely to these Terms, whether or not the change order so states. Cancellation of Orders by Customer may be subject to cancellation charges. H4 may terminate all or any part of any Order of Customer whether or not accepted by H4 at any time upon ten (10) days prior written notice to Customer in the sole and absolute discretion of H4. H4 may immediately, without prejudice to its rights and remedies hereunder, stop all Products in transit and suspend further deliveries and, by notice in writing to Customer, may forthwith terminate completion of an Order if any of the following events occur: (i) Customer enters into bankruptcy; (ii) Customer passes a resolution or a court makes an order that Customer shall be wound up (other than for purposes of consolidation, merger, or reconstruction); (iii) a receiver (including an administrative receiver) is appointed of any of the assets or undertaking of Customer or if circumstances arise which entitle a court or a creditor to appoint a receiver (including an administrative receiver) or a manager or which entitle a court to make a winding up order or if Customer takes or suffers any similar action as a consequence of debt; (iv) the financial position of Customer becomes in the opinion of H4, impaired; (v) Customer fails to pay any indebtedness owed to H4 as and when due; or (vi) Customer commits any breach of any part of these Terms.
7. RETURN POLICY:
If you bought your product directly from SOLOSHOT or SOLOSHOT.com, and you are not satisfied with your purchase within 30 days of receipt, you can return your product for a full refund. Please note associated shipping costs are nonrefundable. For instructions on how to receive your RMA#, please email us through our Contact Us page or call at (866-347-0869) for further instructions. Once your unit is received and inspected, your card will be credited upon receipt of the returned merchandise at SOLOSHOT’s place of business. Please note SOLOSHOT is not responsible for the shipping costs associated with returns. Returned items must be received by SOLOSHOT within 14 days of RMA issuance. If You believe that a product offered by us is not as described, your sole remedy is to return it for a refund.
8. All delivery dates are approximate. All deliveries of Products sold by H4 to Customer pursuant to this Agreement shall be made in accordance with ex works incoterms from H4’s 3PL facility at 455 E. Philadelphia St., Ontario, CA 91761 (the “Shipping Facility”), and title to and risk of loss of Products shall pass from H4 to Customer at the Shipping Facility. Customer shall be responsible for arranging all transportation of Products, but if requested by Customer, H4 shall, at Customer’s expense, assist Customer in making such arrangements. Customer shall also procure insurance for the transportation of the Products, and such insurance shall be of a kind and on terms current at the port of shipment. In the event that H4 assists Customer in arranging for transportation, Customer shall reimburse H4 for all costs incurred by H4 in providing such assistance, including, without limitation, insurance, transportation, loading and unloading, handling and storage. Customer shall pay all charges, including customs duty and sales tax, incurred with respect to the Products following their delivery to the carrier or forwarder. H4 shall pack all Products in accordance with H4’s standard packing procedure. Customer may request different packaging and shall reimburse H4 for any incremental costs associated with such packaging.
9. Legal and beneficial ownership of the Products shall remain with H4 until payment in full has been received by H4. Until ownership in the Products passes to Customer, Customer shall (i) be bailee of the Products; and (ii) not attach the Products to real property. Products shall be deemed sold or used in the order delivered to Customer. At any time prior to ownership passing to Customer, whether or not any payment to H4 is then overdue, if Customer is otherwise in breach of any obligation to H4, H4 may without prejudice to any other of its rights: (i) require delivery up to it of all or any part of the Products; and/or (ii) terminate Customer’s authority to re-sell or use the Products forthwith by written notice to Customer.
10. Promptly upon the receipt of a shipment of Products, Customer shall examine the shipment to determine whether any item or items included in the shipment are in short supply, defective or damaged. Within ten (10) days after receipt of the shipment, Customer shall notify H4 in writing of any shortages, defects or damage that Customer claims existed at the time of delivery. Within sixty (60) days after the receipt of such notice, H4 will investigate the claim of shortages, defects or damage, inform Customer of its findings, and either make an appropriate adjustment in the original sales price of such Products or, at H4’s election, deliver to Customer Products to replace any that H4 determines, in its sole discretion, were in short supply, defective or damaged at the time of delivery. Unless notice is given as provided in this Section, Customer shall be deemed to have accepted such Products and to have waived all claims for shortages, defect or damage.
11. Payment terms shall be as stated on H4’s invoice or as otherwise mutually agreed. A monthly service charge of the greater of 1-1/2% or the maximum permitted by law may be added to all accounts not paid by net due date. In addition, Customer agrees to pay all costs of collection, including costs of litigation and reasonable attorneys’ fees. H4 may accept partial payment in an amount less than the full amount of any invoice, but such acceptance shall not constitute a waiver of H4’s right to collect the balance or accord and satisfaction, notwithstanding H4’s endorsement of a check or other instrument. Each individual shipment shall be invoiced and paid as a separate and independent transaction.
12. H4 reserves a purchase money security interest in the Products sold to Customer, and in the proceeds thereof, including all insurance proceeds, until payment is made in full by Customer. Failure to pay any invoice in accordance with this Clause or other terms specified in these Terms or any Order shall (without prejudice to any other right H4 may have) entitle H4 to suspend further deliveries and work both on the overdue Order and on any other Order from Customer. Customer hereby authorizes H4 to sign and file financing statements and other instruments required to protect and perfect H4’s security interest as described in this paragraph.
13. Customer acknowledges that the Products and the purchase thereof are subject to customs, import and export control laws and regulations of the United States and potentially other countries. Customer will comply with all applicable laws and regulations now or hereafter in effect, including, but not limited to, anti-corruption laws.
14. Customer acknowledges that the Products may only be sold by Customer to retailers for resale to Consumers at approved locations or to Customers for resale to Consumers at approved locations, as agreed to in writing between the Parties prior to such sales. Sale or offer to sell from any other location/ outlet, through any other medium (including, without limitation: mail order, catalog, internet, intranet) is expressly prohibited unless authorized by H4 in writing. H4 expressly reserves the right to limit the amount of Products delivered to Customer to only such quantities as are necessary to meet the reasonably expected demand at Customer’s approved store locations. Unless specifically prohibited by applicable law, sale, resale or transshipment from, in, to or through any unauthorized location, business, medium or to other than Consumers is a violation of this Agreement. Customer acknowledges that H4’s policy against resale is for the purpose of maintaining and enhancing the image and placement of its Intellectual Property and Products throughout the world.
15. In cases of resale, Customers remain free to establish their own resale prices; however, they should not advertise H4 Products below the suggested minimum advertised prices set by H4. H4 will periodically monitor the resale market to make sure dealers are in compliance with the SMAP’s set by H4. Upon verification that such Customer has advertised any of H4’s Products at a price less than the suggested minimum advertised price established and announced by H4 from time to time (the “SMAP”), H4 will, subject to the terms of any applicable retailer agreement, and without assuming any liability, cancel all orders and will indefinitely refuse to accept new orders from any Customer immediately. This H4 policy does not apply to refurbished or discontinued H4 Products. This H4 policy may be modified at any time by H4, and the SMAP may be affected by promotional periods designated by H4. Modifications to prices for Products will be provided to Customer at least 30 days before any changes become effective. All duties and taxes shall be paid by Customer. Any user or resale prices provided are recommend prices only and not binding.
16. In addition to all other rights to which a party is entitled under these Terms, if either party breaches any term of the Order or these Terms, the non-breaching party shall have the right to: (a) terminate the Order immediately upon written notice to the other party; and (b) seek to obtain injunctive relief to prevent such breach or to otherwise enforce the terms of these Terms. Failure to properly demand compliance or performance of any term of the Order or this Agreement shall not constitute a waiver of H4’s rights hereunder and prior to any claim for damages being made for non-conformance or breach, Customer shall provide H4 with reasonable notice of any alleged deficiencies in the Products or H4’s performance under the Order or these Terms and H4 shall have a reasonable opportunity to cure any such alleged non-conformance or breach.
17. WARRANTY POLICY
SOLOSHOT products are guaranteed to be free from defects in materials and workmanship when properly used for their intended purpose and in their intended operating environment for one year from the original purchase date. If any product proves to be defective and is covered by the warranty, we will repair or, at our option, replace your SOLOSHOT unit without charge. We are not responsible for shipping costs associated with warranty returns. For complete details, see the information below which is also located in the manual that comes with each new SOLOSHOT. If your SOLOSHOT needs service, or if you are not sure and want to see if your SOLOSHOT needs to be serviced, please start by contacting our support team through our Contact Us page. Many issues that seem like they may require a SOLOSHOT unit to be repaired or replaced under warranty can actually be solved without sending the unit in. If we need to repair or replace your SOLOSHOT under warranty coverage, our support team will provide you with return shipping instructions and work hard to get you a working SOLOSHOT as quickly as possible.
Please note that any and all SOLOSHOT2 units and accessories purchased after August 15, 2015, whether by direct purchase or with authorized third party retailers, are not covered by the 1 year Limited Warranty due to discontinuation of manufacturing. All repairs that can be made to units purchased after August 15, 2015 will be subject to repair and shipping fees, as well as subject to the availability of remaining parts. Once the remaining parts have been exhausted, we will be unable to make any further repairs.
What is covered by the warranty?
Answer: SOLOSHOT products and accessories (the “Product”) are guaranteed to be free from defects in materials and workmanship when properly used for the Product’s intended purpose and in its intended operating environment. This limited guaranty applies only to the original end user (“you”) of the Product and is not transferable. In the event of such defects during this period, your exclusive remedy and Manufacturer’s entire liability under this warranty will be for Manufacturer to repair or, at its option, replace the Product with a comparable product. Except for such repair or replacement, the sale, processing or other handling of this product is without warranty, even though any defect or loss resulting therefrom is caused by negligence or other fault.
Are there any limitations?
Answer: Damage resulting from ordinary use or normal wear and tear is not covered by this or any warranty, and this warranty does not apply to any Product that has been: (i) altered, repaired or modified, other than by Manufacturer, or (ii) damaged or destroyed by accidents, water damage or similar events or by any intentional, reckless or negligent acts or omissions of any party. Manufacturer assumes no liability, and you release Manufacturer from any liability, for any accident, injury, damage, death, loss, illegal activity or any other claim related to or resulting from or during the use of the Product, whether or not such use is foreseeable by Manufacturer.
ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE LIMITED TO THE DURATION OF THE APPLICABLE EXPRESS WARRANTY. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, ARE DISCLAIMED. Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL MANUFACTURER BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE PRODUCT, EVEN IF MANUFACTURER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MANUFACTURER’S LIABILITY EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCT. The foregoing limitations will apply even if any warranty or remedy provided under this Agreement fails of its essential purpose. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
How Long is the Coverage Period?_Answer: The warranty coverage runs for one year from the date your Product ships._
What will Manufacturer do and not do to correct any defects during the warranty period? Answer: In the event of such defects during the warranty period, your exclusive remedy and Manufacturer’s entire liability under this warranty will be for Manufacturer to repair or, at its option, replace the Product with a comparable product. Except for such repair or replacement, the sale, processing or other handling of this product is without warranty, even though any defect or loss resulting therefrom is caused by negligence or other fault. Damage resulting from ordinary use or normal wear and tear is not covered by this or any warranty, and this warranty does not apply to any Product that has been: (i) altered, repaired or modified, other than by Manufacturer, or (ii) damaged or destroyed by accidents, water damage to the base unit or similar events or by any intentional, reckless or negligent acts or omissions of any party. Manufacturer assumes no liability, and you release Manufacturer from any liability, for any accident, injury, damage, death, loss, illegal activity or any other claim related to or resulting from or during the use of the Product, whether or not such use is foreseeable by Manufacturer.
How do I get service? Answer: In the event of a defect during the period covered by this warranty, contact SOLOSHOT Inc. at through our Contact Us page for instructions. Please note that you shall bear the cost of shipping the product to the warehouse, and SOLOSHOT Inc. shall bear the cost of shipping the product back to you after the completion of service or replacement under this limited warranty.
How does US State law apply? Answer: This warranty gives you certain legal rights, and you may also have other rights which vary from State to State.
H4 MAKES NO OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES, AND SPECIFICALLY DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE.
18. THE TOTAL LIABILITY OF H4 FOR ANY LOSS, DAMAGE OR CLAIM, WHETHER IN CONTRACT, TORT (INCLUDING H4’S ACTIVE OR PASSIVE NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THESE TERMS OR ANY ORDER, OR FROM THE DESIGN, MANUFACTURE, SALE, DELIVERY, RESALE, INSPECTION, ASSEMBLY, TESTING, REPAIR, REPLACEMENT, OPERATION, MAINTENANCE OR USE OF ANY PRODUCT, OR THE SITE, SHALL NOT, IN ANY EVENT, EXCEED THE PURCHASE PRICE FOR SUCH PRODUCT. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT OR WARRANTY OR ALLEGED NEGLIGENCE OR STRICT LIABILITY, SHALL H4 BE LIABLE FOR SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR REVENUE, LOSS OF PRODUCTS OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTED EQUIPMENT OR PARTS, FACILITIES OR SERVICES, DOWN-TIME COSTS, LABOR COSTS, OR CLAIMS OF CUSTOMER.
WE WILL NOT BE LIABLE FOR ANY ECONOMIC LOSSES (INCLUDING WITHOUT LIMITATION LOSS OF REVENUES, PROFITS, CONTRACTS, BUSINESS OR ANTICIPATED SAVINGS) OR ANY LOSS OF GOODWILL OR REPUTATION, OR ANY LOSS OR CORRUPTION OF DATA, OR ANY SPECIAL OR INDIRECT OR CONSEQUENTIAL LOSSES ARISING OUT OF YOUR USE OF THE WEBSITE OR ANY OF OUR PRODUCTS, WHETHER OR NOT SUCH LOSSES WERE WITHIN THE CONTEMPLATION OF US AT THE DATE ON WHICH THE EVENT GIVING RISE TO THE LOSS OCCURRED.
19. Customer will indemnify, defend, and hold harmless H4, and its directors, officers, employees, agents, officials and related companies from and against any and all losses, liability, claims, causes of action, damages and expenses (including reasonable attorneys’ fees and expenses in actions involving third parties or between the parties hereto) that they or any of them may incur or be obligated to pay in any action, claim or proceeding against them or any of them, for or by reason of any acts, whether of omission or commission, that may be committed or suffered by Customer or any of its servants, agents or employees in connection with or in any way related to Customer’s performance of these Terms, including, without limitation, any claim for harm, injury, or death to any person, or damage to property or to the environment arising out of or in connection with any of the following matters: a) Customer’s performance or nonperformance under these Terms, including, without limitation, Customer’s possession, sale, transportation, storage, handling, and use of Products; b) any action or omission of Customer or Customer’s employees, agents, contractors, assigns, or third parties; c) any event or
occurrence at or involving the operation of Customer’s locations where the Products are offered for sale; and d) Customer’s use of the Site or any of our products or services. Customer shall promptly inform H4 by written notice of any suit or claim against Customer in connection with or in any way related to Customer’s performance under these Terms, whether such suit or claim is for personal injury, involves alleged defects in the Products manufactured, sold or distributed hereunder, or otherwise.
20. H4 shall indemnify, defend, and hold harmless Customer against any and all liabilities, damages and expense (including reasonable attorneys’ fees, costs and expenses) which Customer may incur or be obligated to pay in any action or claim against Customer for infringement of any other person’s claimed right to use the SOLOSHOT trademark in the approved locations, including, but not limited to, any claims that H4 does not own the trademark, but only where such action or claim results from Customer’s use of the trademark in the approved locations in accordance with these Terms. Customer will give H4 prompt written notice of any such claim or action, and thereupon H4 will undertake and conduct the defense of any suit so brought. It is understood, however, that if there is a dispute between H4 and Customer as to whether the suit was brought as a result of Customer’s failure to use the trademark in accordance with these Terms, Customer may be required to conduct such defense unless and until it is determined that no such misuse of the trademark occurred. Such indemnification will be deemed to apply solely to the amount of the judgment, if any, against Customer, and sums paid by Customer in connection with its defense, and will not apply to any consequential damages suffered by Customer that are not included in the aforementioned judgment. Such indemnification will not apply to any damages sustained by Customer by reason of claimed infringement other than those specified above. H4 will retain all of its rights and title to and ownership of any and all patents, trade secrets, trademarks, trade dress, copyrights, names, symbols, slogans, designs, styles, and style names and related components or inventions owned or controlled by H4 and which H4 has the exclusive right to use in connection with the manufacture, use, advertising, distribution and/or sale of the Products (“Intellectual Property”). These Terms do not constitute any general authority to make, sell, distribute, or otherwise dispose of any goods or other products incorporating any of the Intellectual Property. Specifically, Customer shall have no right to use any of the Intellectual Property except solely and directly in connection with the sale or advertising of H4 Products on the Order in connection with the resale of such Products by Customer to Consumers as set forth in an Order. Customer will comply with all legal prerequisites governing the proper usage and display of the Intellectual Property. H4 expressly reserves the right to prohibit, restrict, or condition further in any way the use by Customer of any of the Intellectual Property. Customer shall not remove from the Products or otherwise alter or interfere with any Intellectual Property on the Products or any packaging or other materials, and shall not place any other trademarks, names, slogans or logos on the Products or other related materials. Customer agrees that it will at no time, without express written approval from H4, sell, deliver, produce, advertise, or develop any products, other than the Products, that include incorporate or bear any of the Intellectual Property, and further agrees that it shall not sell or distribute any product that includes, incorporates or bears, in the sole opinion of H4, any feature, trademark, symbol, pattern or design that is confusingly similar to or which infringes upon the Intellectual Property, or in the sole opinion of H4, any designs, design concepts, sketches, prints, print screens, patterns, labels, tags and packaging designed by or provided by H4 (“H4 Materials”). Customer acknowledges that: (i) H4 is the exclusive owner of all right, title, and interest in and to the H4 Materials in any form or embodiment thereof; (ii) H4 is the exclusive owner of the goodwill attached, or which becomes attached to the H4 Materials; (iii) H4 is the exclusive owner of the Intellectual Property; (iv) Customer has no right of any kind in or to the H4 Materials or Intellectual Property. Customer shall not, at any time, do or suffer to be done any act or thing which may in any way adversely affect any rights of H4 in and to the H4 Materials or Intellectual Property or which, directly or indirectly, may reduce the value of the H4 Materials. Other than as permitted by these Terms, Customer may not copy, modify, recreate, transfer or sell any of the H4 Materials, or the Intellectual Property. Customer shall not challenge H4’s ownership of or the validity of the Intellectual Property, H4 Materials, or any application for registration thereof with an authorized registering body, or any copyright, trademark, trade dress, or patent registration thereof, or any other intellectual property or other proprietary rights of H4 therein. Customer shall not seek to register or otherwise assert rights over the H4 Materials or any variation or simulation thereof, or any portion of the H4 Materials or other H4 Products. If Customer learns of any infringement, imitation or counterfeiting of the H4 Materials or Intellectual Property or the Products, it shall notify H4 promptly thereof. H4 thereupon shall take such action as it deems advisable in its sole discretion for the protection of its rights in and to the H4 Materials. Should H4 not take action subsequent to notification by Customer as described in this paragraph, H4 will not have waived any rights in or to the H4 Materials or Intellectual Property, or any rights under these Terms. Customer agrees to cooperate with H4 in connection with H4s enforcement of its rights.
21. Trademark License / Use of Website / Intellectual Property Matters.
(a) You acknowledge and agree that our trademarks, logos, copyrights and any and all other intellectual property rights in all material or content contained within this Website shall remain at all times vested in us or, in the cases where we are using such material or content under authority from a third party, in the owner of such material or content.
(b) You may not shall not use, copy, distribute, or exploit any of the Site Content in any manner without our prior written permission.
(c) All Site Content and all materials and content contained within the Website, including but not limited to the text, graphics, logos, icons, images, audio clips, video clips, articles, posts and data appearing on the Website, are owned by us, or used by us under authorization, and are protected by U.S. and foreign trademark and copyright laws. No portion of the materials or content on these pages may be reprinted or republished in any form without our express written permission.
(f) No Other Licenses. The licenses granted hereunder are specifically set forth herein, and no licenses are granted to you by implication or estoppel.
(h) We are not responsible for the availability of any websites owned or controlled by third-parties, including Shopify. We do not endorse and are not responsible or liable, directly or indirectly, for the operation of such third-party websites or the privacy practices or the content (including misrepresentative or defamatory content) of any third party websites, including (without limitation) any advertising, products or other materials or services on or available from such websites or resources, nor for any damage, loss or offense caused or alleged to be caused by, or in connection with, the use of or reliance on any such content, goods or services available on such third-party external sites or resources.
22. DMCA and IP TAKEDOWN POLICY.
(a) Soloshot respects the rights, including intellectual property rights, of others. You may not use, distribute or reproduce in any way any copyrighted material, trademarks, or other intellectual property and/or proprietary rights of others without obtaining the prior written consent of the owner of such rights.
(b) If you believe that your work has been copied and posted on the Website(s) in a way that constitutes copyright infringement, please provide us with the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located on the Website(s); your address, telephone number, and email address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Please send all of the foregoing information to:
By e-mail: firstname.lastname@example.org
85 NE Loop 410
San Antonio, TX 78216
If you do not send the required information to the DMCA Agent, your notice/request may not be valid.
c. If you believe any of your other rights, including intellectual property rights, have been violated, please follow the same procedures and send the same information and a takedown request to: email@example.com
d. Counter-Notice. If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your Content, you may send a counter-notice containing the following information to the Copyright Agent:
Your physical or electronic signature;
Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Bexar County, Texas, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at YouTube's sole discretion.
(e) WEBSITE(S) PROMOTION. Soloshot may make use of or refer to any User-posted content for the purpose of promotion of the Site. Such promotion may involve taking screen shots of a particular area of the Site and/or Content posted by a User(s), and using that screen shot as a graphic in an advertisement. Promotion may also include quoting Content or playing audio or video posted to the public areas of the Site. Soloshot makes no claim of ownership to such user-posted content.
23. NOTICE FOR CALIFORNIA USERS. Under California Civil Code Section 1789.3, residents of California who use the Website(s) are entitled to know that they may file grievances and complaints with: the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs, in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210, or by email at firstname.lastname@example.org.
Under California Civil Code sections 1798.83-1798.84, California residents are also entitled to ask for a notice describing what categories of Personal Information we share with third parties or corporate affiliates for those third parties or corporate affiliates’ direct marketing purposes. That notice will identify the categories of information shared and will include a list of the third parties and affiliates with which it was shared, along with their names and addresses. If you are a California resident and would like a copy of this notice, please submit an email on our Contact Us page and allow 30 days for a response. We do not currently share any Personal Information with any third parties or corporate affiliates for direct marketing purposes.
24. NOTICE FOR NEW JERSEY USERS AND TRANSACTIONS Any disclaimer, limitation of liability, indemnification or damages provisions contained herein shall apply to New Jersey residents or New Jersey transactions only to the extent permitted by New Jersey law or New Jersey public policy.
25. The parties acknowledge that during the course of their relationship, the parties may share certain Confidential Information with each other. “Confidential Information” shall include, without limitation, any technical or non-technical documents or information relating to the actual or anticipated business, technology (or the implementation or exploitation thereof), research or development, information pertaining to clients, customers, accounts, vendors, prices, costs, materials, processes, object or source code, technology, know-how and trade secrets, operations, financial condition, assets, liabilities, prospects or other confidential information of the respective party and its affiliates disclosed by such party or its agents and affiliates in writing, orally, electronically, by drawing or other form. Notwithstanding the foregoing, Confidential Information shall not include information which: (a) is known to the receiving party at the time of disclosure or becomes known to the receiving party without breach of these Terms or any other duty of confidentiality to the disclosing party, or (b) is or becomes publicly known through no wrongful act of the receiving party or any affiliate of the receiving party. The receiving party agrees that it will not disclose any Confidential Information to any third party and will not use any Confidential Information of the disclosing party for any purpose other than for the performance of the rights and obligations hereunder, without the prior written consent of the disclosing party. The receiving party further agrees that Confidential Information shall remain the sole property of the disclosing party and that it will take all reasonable precautions to prevent any unauthorized disclosure of Confidential Information by its employees. Notwithstanding the foregoing, in the event that the receiving party is requested or required in legal, judicial or regulatory proceedings (including by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) or by law, regulation, governmental agency or similar authority or stock exchange rule or regulation, to disclose Confidential Information, it is agreed that the receiving party will, to the extent legally permissible and reasonably practicable, provide the disclosing party with prompt notice of such request(s) or requirement(s), so that the disclosing party may seek, at its sole expense, a protective order or other appropriate remedy, or waive compliance with these Terms. If such protective order or other remedy is not obtained, and the receiving party, based on the advice of receiving party’s counsel, is legally required to disclose Confidential Information, or if the disclosing party waives compliance with these Terms, the receiving party shall be permitted to furnish without liability hereunder only that portion of the Confidential Information which the receiving party is advised by counsel is legally required provided that the receiving party takes reasonable steps to minimize the extent of any such required disclosure. Upon the request of the disclosing party, the receiving party shall promptly return to the disclosing party or, upon request of the disclosing party, destroy all materials containing Confidential Information furnished hereunder and all copies thereof. The terms of this section shall apply for five (5) years following disclosure, except with respect to trade secrets for which the terms of this section shall apply for so long as the Confidential Information remains a trade secret.
26. By placing an Order, Customer warrants and guarantees that: (i) the Products will not be adulterated, misbranded, falsely labeled or advertised, or falsely invoiced within the meaning of any local, state or federal laws and amendments thereof in force as of the date of the Order; (ii) the Products will remain labeled and invoiced in accordance with the requirements of all applicable laws; and (iii) Customer shall conduct business in a manner that will reflect favorably at all times on the good name of H4, its Products and other dealers of H4’s Products, and Customer shall avoid in every way any deceptive, misleading, confusing or illegal advertising or business practices and withdraw any such advertising or promotion on being notified by H4 of an objection thereto. It shall be within the sole discretion of H4 to determine when the above-mentioned warranties and guarantees have been breached.
27. Neither party shall be liable for any delay or failure to perform hereunder (other than Customer’s payment obligations) due to floods and other severe weather, earthquakes, riots, strikes, freight embargoes, acts of war or hostilities of any nature, laws or regulations of any government (whether foreign or domestic, federal, state, county or municipal) or any other similar cause beyond the reasonable control of the party affected. A party relying on such an event to excuse its performance hereunder shall immediately notify the other party in writing of the nature of that event and the prospects for that party’s future performance and shall thereafter, while that event continues, respond promptly and fully in writing to all requests for information from the other party relating to that event and those prospects.
28. Customer may not use the Products for or incorporate the Products in the design, development, production, utilization, maintenance or operation of, or otherwise contribute to, any weapons or goods or systems specially designed or intended for military end-use.
29. All clerical and typographical errors are nonbinding and subject to correction.
30. Customer may not assign, transfer or delegate any Order accepted by H4 or any of its rights, duties, obligations, or related interests without H4’s prior written approval. Orders accepted by H4 are not transferable assets of Customer. Any assignment, transfer, or delegation of Orders for Products accepted by H4 or any interest therein, without H4’s prior written consent, is voidable at its option and cause for termination or cancelation of such Orders. Nothing in these terms will be construed to grant any person or entity, not a party to any Order accepted by H4 for goods, any rights or powers whatsoever. No person or entity will be a third party beneficiary of any Order accepted by H4 for Products. Notwithstanding the foregoing, H4 shall be entitled at any time to assign its rights or obligations hereunder to any third party without Customer’s prior written consent.
31. All notices to be sent to either of the parties shall either be sent by email with confirmed answer-back by email; or mailed by certified mail or by a reputable express courier to Customer as shown on the Order and to H4 at:
520 S. El Camino Real, Suite 816
San Mateo, CA 94402
Email: Contact Us
Or to any such amended address as has been identified in writing by either party via the same communication methods as described above.
31. If any provision of this Agreement is held to be void, the remaining provisions shall remain valid and shall be construed in such a manner as to achieve their original purposes in full compliance with the applicable laws and regulations.
32. CHOICE OF LAW, BINDING ARIBTRATION CLAUSE AND CLASS-ACTION WAIVER
A. These Terms will be interpreted in accordance with the laws of the State of Delaware and the United States of America, without regard to its conflict-of-law provisions.
B. By purchasing one of our Products visiting the Website, agreeing to these Terms or otherwise using this website, you agree that, except as otherwise specified herein, the laws of the State of Delaware without regard to principles of conflict of laws, will govern any dispute of any sort that might arise between us or any of our affiliates regarding your visit and use of the Website and Services.
C. We and you agree that in the event of any dispute, the party wishing to address the dispute must contact the other party in writing, including by e-mail, and advise the other party of the dispute in reasonable detail as well as informing the other party of the remedy being sought. We may send you notices via the email address or physical address you provide to us, and all notices to us shall be sent through our Contact Us page.
The parties shall then make a good faith effort to resolve the dispute before resorting to more formal means of resolution. In the event that the dispute is not resolved within thirty (30) days of receipt of the written notice, the party raising the dispute may proceed to mandatory arbitration as set forth below.
D. UNLESS OTHERWISE PROVIDED IN THIS AGREEMENT, ANY AND ALL DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING ARBITRATION. YOU HEREBY AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under these Terms, except for matters that may be taken to small claims court. Your rights will be determined by a neutral arbitrator, NOT a judge or jury. You agree that any dispute arising out of or relating to these Terms, including with respect to the interpretation of any provision of these Terms or other agreements between you and us, or concerning the performance or obligations of you and us, shall be resolved by mandatory and binding arbitration submitted to JAMS in accordance with its Commercial Arbitration Rules at the request of either us or you pursuant to the following conditions:
E. Place of Arbitration Hearings. Unless you elect to conduct the arbitration by telephone or written submission, an in-person arbitration hearing will conducted at a JAMS facility in your area or at a JAMS facility in New York City.
F. Selection of Arbitrator shall be made pursuant to JAMS’ Streamlined Arbitration Rules & Procedures or JAMS’ Comprehensive Arbitration Rules & Procedures, depending on the amount of the claim as specified herein.
G. Conduct of Arbitration. The arbitration shall be conducted by a single neutral arbitrator under JAMS’ Streamlined Arbitration Rules & Procedures. For claims exceeding $5,000.00, the arbitration shall be conducted under JAMS’ Comprehensive Arbitration Rules & Procedures Subject to the applicable JAMS procedure, the arbitrator shall allow reasonable discovery in the forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the purpose of the arbitration. The arbitrator(s) shall have no power or authority to amend or disregard any provision of this section or any other provision of these Terms of Service, except as necessary to comply with JAMS’ Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness. The arbitration hearing shall be commenced promptly and conducted expeditiously. If more than one day is necessary, the arbitration hearing shall be conducted on consecutive days unless otherwise agreed in writing by the parties.
H. Findings and Conclusions. The arbitrator(s) shall, after reaching judgment and award, prepare and distribute to the parties written findings of fact and conclusions of law relevant to such judgment and award and containing an opinion setting forth the reasons for the giving or denial of any award. The award of the arbitrator(s) shall be final and binding on the parties, and judgment thereon may be entered in a court of competent jurisdiction.
I. Costs and Fees. You will be subject to a filing fee, set by JAMS, to initiate the arbitration. To the extent permitted by JAMS procedures, each party shall bear its own costs and expenses and an equal share of the arbitrators' and administrative fees of arbitration, and we will remain responsible for its share of costs, expenses and fees plus any costs, expenses and fees required under JAMS procedures.
J. Litigation. The Federal Arbitration Act and federal arbitration law apply to these Terms. Either party also may, without waiving any remedy under these Terms, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal's determination of the merits of the controversy). The parties also agree that either party may bring suit in a court, located in New York County, New York to enjoin infringement or other misuse of intellectual property rights. This provision applies to any litigation brought under Paragraph 4 hereof.
K. Other. The Federal Arbitration Act and federal arbitration law apply to these Terms. Both you and we expressly waive any ability to maintain any class action proceedings in any forum. Any arbitration, claim or other proceedings by or between you and us shall be conducted on an individual basis and not in any class action, mass action, or on a consolidated or representative basis. You further agree that the arbitrator shall have no authority to award class-wide relief or to combine or aggregate similar claims or unrelated transactions. You acknowledge and agree that this agreement specifically prohibits you from commencing arbitration proceedings as a representative of others. If for any reason a claim proceeds in court rather than in arbitration, each party waives any right to a jury trial. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
33. For any disputes not covered by the foregoing arbitration provisions, the parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the state courts of the State of Texas located in Bexar county or the United States District Court for the Western District of the State of Texas for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement; (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the state courts of State of Texas located in Bexar county or the United States District Court for the Western District of the State of Texas; and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that these Terms or the subject matter hereof may not be enforced in or by such court.
34. IMPORTANT SAFETY INSTRUCTIONS
Read this manual before using this product. Failure to follow these instructions and safety precautions can result in damage to the product or injury. WARNING: CHOKING HAZARD. Contains small parts. Keep out of reach of children._WARNING: STRANGULATION HAZARD. Contains a long power cord that may cause strangulation if used improperly. Keep out of reach of small children.
WARNING: To reduce risk of re or electric shock, do not expose SOLOSHOT3 Base and/or OpticX Camera to direct rain or moisture.
WARNING: To reduce the risk of electrical shock and prevent undesirable interference, only use manufacturer recommended accessories.
CAUTION: Do not expose this product to excessive heat such as excessive direct sunlight, near a source of excessive heat, or in a car subject to high temperatures. To reduce the risk of electrical shock, do not disassemble the Base, OpticX Camera or Tag. No user-serviceable parts in- side. Do not attempt to service or alter unit yourself. Refer servicing to manufacturer approved service personnel. All warranties are void if any unauthorized service is performed.
CAUTION: The preferred method of mounting the Tag is highly dependent on the sport, activity, terrain and/or specific scenario. Be sure to wear the Tag in such a way that reduces the risk of it becoming dislodged and/or projected into the air where it may cause injury to you or others. Neither the Tag or the Base should be mounted on a helmet or headband as injuries could result to the wearer or others. By using SOLOSHOT3, you, the user agree to assume all risks including risks that may be inherent in the activities being recorded. You further agree to defend, indemnify, and hold SOLOSHOT, Inc., its subsidiaries, affiliates, of officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses and expenses, including and with- out limitation to reasonable legal fees arising in any way connected with the use of SOLOSHOT3, or the violation of these safety and operating instructions.
35. IMPORTANT USAGE INSTRUCTIONS
In these safety instructions the word “product” refers to SOLOSHOT3 including the Base, Tag, OpticX Camera and all of its accessories unless otherwise stated.
Read Instructions: All safety and operating instructions should be read and understood completely before operating the product. Follow Instructions: All operating and maintenance instructions should be followed.
Retain Instructions: These safety and operating instructions should be retained for future reference. The operator of this equipment should, from time to time, review the manufacturers website for any new or revised instructions at soloshot.com/instructions.
Heed Warnings: All warnings on the product and in the operating instructions should be read, understood and adhered to.
Servicing: Do not attempt to service any part of SOLOSHOT3 yourself as opening, removing or altering any component of SOLOSHOT3 may expose you to dangerous voltage or other hazards. Any attempt to access internal components will void manufacturer’s warranty. Servicing is required when the apparatus has been damaged in any way including charging cord or plug damage; the Base, Optic Camera or charging code have been exposed to liquids such as water, rain or moisture; objects have fallen into the Base or Camera or the products do not operate normally due to manufacturing defect or have been dropped or damaged due to user neglect. For servicing information, contact customer service at soloshot.com/contact-us or at 1(866)347-0869.
Heat: Do not place any part of SOLOSHOT3 near any heat sources such as radiators, heat registers, ovens, stoves, or other apparatuses (including amplifiers) that produce heat.
Water and Moisture: Do not expose Base or OpticX Camera directly to water. ELECTRIC SHOCK HAZARD - Do not expose Base, OpticX Camera or power cord to wet environments. The Tag is water resistant up to 50 feet but Base, OpticX Camera, and charging cord are NOT waterproof or water resistant.
Accessories: Only use attachments and accessories specified in this manual or approved by SOLOSHOT as all other accessories may be hazardous. Please reference specific safety information provided with each SOLOSHOT accessory.
Magnetic or Electric Fields: Do not use SOLOSHOT3 close to TV transmitters, portable communication devices or other sources of electric or magnetic radiation. They may cause interference or permanent damage to your SOLOSHOT3. Unplug this apparatus during lightning storms or when unused for long periods of time.
Cleaning: Clean Base, Tag, and OpticX Camera. Unplug Base from the wall outlet and completely detach charging cord from Base before cleaning. Only use a clean dry cloth to clean the external surfaces of Base and OpticX Camera. Do no use liquid or aerosol cleaners on Base or OpticX Camera. Clean the Tag and Armband only by rinsing in fresh water and then dry Tag with a dry non-abrasive cloth. The product should be cleaned only as recommended in this manual.
Power Adapter: The power cord should be routed such that it is NOT likely to be walked on or pinched by items placed upon or against it. Pay particular attention to plugs and the point from which the cords exit the product.
Power Cord Protection: The power cord should be routed such that it is NOT likely to be walked on or pinched by items placed upon or against it. Pay particular attention to plugs and the point from which the cords exit the product. CAUTION: To prevent electric shock, fully insert plug while charging.
Objects and Liquid Entry: Never push objects of any kind into or through opening on the Base OpticX Camera, or Tag as they may touch dangerous voltage point, short out or parts that could result in re, electric shock, or damage to the product. Be careful not to spill liquids of any kind on the Base, Opticx Camera or charging cord.
CONTAINS LI-ION and LI-ION POLYMER BATTERY. Battery must be recycled or disposed of properly.
36. FEDERAL COMMUNICATIONS COMMISSION (FCC) STATEMENT
This device complies with Part 15 of the FCC Rules. Operation is subject to the following two conditions:
(1) This device may not cause harmful interference, and (2) This device must accept any interference received, including interference that may cause undesired operation. This device meets the requirements for RF exposure to humans when worn on the upper arm or against the body. In order to comply with FCC standards, this device should not be used in any other application other than that described in this manual. This device complies with Part 15 of the FCC rules. Changes or modifications to the device not expressly approved by the party responsible for compliance could void the user’s authority to operate the equipment.
COPYRIGHT: Unauthorized recording of copyrighted materials may infringe on the rights of copyright owners and be contrary to copyright laws.
May 19, 2017