Last update: 01 October 2020
1.1 These Terms and Conditions (Terms) are between BlisterPod LLC, its successors and assignees (referred herein as “we”, “us” or “our”) and you, the user of our prevention services (herein as “you” or “your”). These Terms will apply when you engage us in our blister prevention services.
1.2 You have requested specific blister prevention services, described on and able to be ordered via our Website (collectively, “Services”). You accept these Terms by: (a) ticking the online acceptance box; (b) confirming that you accept the Terms; (c) instructing us to proceed with the Services; or (d) making payment for the Services as set out in our tax invoice to you (Invoice).
1.3 You agree that these Terms form the agreement under which we will supply the Services to you. Please read these Terms carefully, and contact us if you have any questions. Using our Services indicates that you have had sufficient opportunity to read these Terms and that you have accepted to be bound by them.
To use the Services, you must be 18 years of age (or the legal age of majority in your location). If you are below 18 years of age (or the legal age of majority in your location), at least a parent or legal guardian must supervise your use of our Services. by requesting to use our Services, you warrant to us that you are 18 years of age (or the legal age in your location) and that you are able to enter a legally binding agreement.
The below words have the meanings attached to them under these Terms:
2.1 “Confidential Information” includes confidential information about the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know-how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, Intellectual Property, technology, and other information, whether or not such information is reduced to a tangible form or marked in writing as “confidential”.
2.2 “Intellectual Property” includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.
2.3 “Moral Rights” means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined under the United States’ law and other jurisdictions.
2.4 “Website” means the website, available at blister prevention.us and blisterprevention.com.au.
2.5 “Invoice” means a statement of the services provided to you and the amount due for payment.
2.6 “Fees” means the amount specified in the Invoice as the payment for the Services, including any applicable tax.
3.1 We agree to perform the Services with due care and skill.
3.2 Upon your request and payment for our Services, we will be in touch within 24 hours to ask initial questions.
3.3 We may, from time to time, refer you to third party specialists (Third Party Specialists). Such Third Party Specialists are not our employees or our direct contractors, and you are required to assess the suitability of the Third Party Specialists and make your own arrangements with the Third Party Specialists. We are not responsible for the services provided by Third Party Specialists, and will not be liable for any losses or damages suffered from using them.
3.4 For the avoidance of doubt, the Services we provide relate to friction blisters on the feet only. Our Services are not suitable for:
(a) other foot problems including, but not limited to, burns, allergies and insect bites; or
(b) blisters on any part of your body aside from your feet.
4. PRICE, INVOICING AND PAYMENT
4.1 You agree to pay us the Fees set out on our Website or Invoice, for the chosen Services. We will not provide or perform the Services unless the Fees specified on the Website or Invoice has been paid. All amounts are stated in the United States dollars (USD). Any applicable tax will be separately shown to you.
4.2 You acknowledge and agree that no Services will be provided to you until the payment specified on the Invoice is received and processed.
4.3 Our pricing structure, payment methods and these Terms may be amended from time to time at our discretion. The pricing changes will apply to you for Services provided to you after the date of the change. All other changes will apply from the date that the amended or new Terms are posted on the Website or are provided to you, whichever is earlier.
5. YOUR OBLIGATIONS AND WARRANTIES
5.1 You warrant that throughout the duration of these Terms that:
(a) there will be no legal restrictions preventing you from agreeing to these Terms;
(b) you will cooperate with us and provide us with information that is reasonably necessary to enable us to perform the Services as requested by us from time to time, and comply with these requests in a timely manner;
(c) the information you provide to us is true, correct and complete;
(d) you will not infringe any third party rights in working with us and receiving the Services;
(e) you will inform us if you have reasonable concerns relating to our provision of Services under these Terms, with the aim that you and we will use all reasonable efforts to resolve your concerns;
(f) you are responsible for obtaining any consents, licences and permissions from other parties necessary for the Services to be provided (at your cost) and for providing us with the necessary consents, licences and permissions;
(g) if applicable, you hold a valid business identity, which has been advised to us; and
(h) if applicable, you are registered for the relevant tax purposes.
6. OUR INTELLECTUAL PROPERTY
6.1 The work and materials that we provide to you in carrying out the Services, including our advice to you and email correspondence between you and us, contains material which is owned by or licensed to us and is protected by Australian, the United States and international laws (Materials). We own the intellectual property rights in the Materials, including but not limited to, copyright which subsists in all creative and literary works incorporated into our Materials.
6.2 You agree that, as between you and us, we own all Intellectual Property rights in our Materials, and that nothing in these Terms constitutes a transfer of any intellectual property rights in our Materials, except as stated in these Terms or with our written permission.
6.3 Your use of our Materials does not grant you a licence or act as a right to use any Intellectual Property in the Materials, whether registered or unregistered, except as stated in these Terms or with our written permission.
6.4 Our Materials are provided based on your personal needs. Our Materials should be for your personal use only and should not be shared with third parties. You must not breach our Intellectual Property rights by, including but not limited to:
(a) altering or modifying any of the Materials;
(b) creating derivative works from the Materials; or
(c) using our Materials for commercial purposes such as on-sale to third parties.
7. YOUR INTELLECTUAL PROPERTY AND MORAL RIGHTS
7.1 You agree to provide information, including any Intellectual Property (for example, copyright in photographs that you have taken) to us to enable us to provide the Services. You:
(a) warrant that you have all necessary rights to provide the Intellectual Property to us; and
(b) grant us a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable licence to use the Intellectual Property in any way we require to provide the Services to you.
8. CONFIDENTIAL INFORMATION
8.2 You, including your employees and contractors, agree not to disclose our Confidential Information to any third party; to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; and only to use the Confidential Information for the purpose for which it was disclosed or provided by us to you, and not for any other purpose.
8.3 These obligations about Confidential Information do not apply to Confidential Information that:
(a) is authorised to be disclosed;
(b) is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms;
(c) is received from a third party, except where there has been a breach of confidence; or
(d) must be disclosed by law or by a regulatory authority including under subpoena or court order.
8.4 The obligations about Confidential Information under this clause will survive the termination of these Terms.
9. FEEDBACK AND DISPUTE RESOLUTION
9.1 Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about the Services, please contact us. 9.2 If you are unsatisfied with the Services, please notify us in writing to [email protected] We will arrange to provide you with a refund of the Fees you paid for our Services. Any refund we make will be by the same payment method used to purchase the Services.
9.3 If there is a dispute between you and us in relation to these Terms or your use of the Services, you agree to the following dispute resolution procedure:
i. You must submit the nature of your claims in writing to us via [email protected] and the actions you think will settle your claims. You agree to meet with us via Skype or phone conference in good faith to seek to resolve the dispute by agreement (Initial Meeting).
ii. if the dispute is not resolved after the Initial Meeting, you and we both agree to settle any dispute by binding arbitration rather than in court. However, you may assert your claims in small claims court if they qualify. The arbitration and these Terms shall be governed by the Federal Arbitration Act and federal arbitration law of the United States.
To commence an arbitration, you must send a notice to us via [email protected] or our address below. The arbitration shall be conducted under the American Arbitration Association (AAA) under its arbitration rules (including the AAA’s Supplementary Procedures for Consumer-Related Disputes), which are found at its website at www.adr.org. The payment of filing and arbitration fees shall be governed by the AAA’s rules. If the costs are determined to be excessive by the arbitrator, we will pay the costs. The arbitration may be conducted by phone, written submissions or in-person, as agreed to between the parties.
Parties agree that no dispute shall be brought on class action, representative or consolidated capacity but as an individual basis. If a claim is subject to court rather than binding arbitration, then you and we both waive any right to a jury trial.
You and we both agree that the following disputes shall not be subject to binding arbitration:
i. Any dispute seeking to enforce our right and intellectual property;
ii. Any dispute relating to theft, privacy or unauthorised use; or
iii. Any claims seeking injunctive relief.
10.1 Either party may terminate these Terms if there has been a material breach of these Terms by one party.
10.2 We may terminate these Terms immediately, at our sole discretion, if:
(a) we consider that a request for the Service is inappropriate, improper or unlawful;
(b) you fail to provide us with clear or timely instructions to enable us to provide the Services;
(c) we consider that our working relationship has broken down, including a loss of confidence and trust; or
(d) for any other reason outside our control, which has the effect of compromising our ability to perform the work required within the required timeframe.
10.3 On the completion of the Services, we will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to these Terms constitute your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
10.4 The accrued rights, obligations and remedies of the parties under these Terms are not affected by the termination of these Terms.
11. CONSUMER LAW, LIMITATION OF LIABILITY AND DISCLAIMERS
11.1 Consumer Law: Certain legislation including the Federal Trade Commission (FTC) and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of goods or services to you by us via the Website, which cannot be excluded, restricted or modified. Our liability is governed solely by the FTC and these Terms.
11.2 Services: If you are a consumer as defined in the FTC, the Services come with guarantees that cannot be excluded under the FTC. You are entitled to a refund or reprovision of the Services for major failures and for compensation for any other loss or damage. You are also entitled to have the Services remedied if they fail to be of acceptable quality. To the extent we are able to exclude liability, our total liability for loss or damage you suffer or incur from the Services is limited to us re-providing the Services to you, or, at our option, us refunding to you the Fees you have paid us for the Services to which your claim relates.
11.3 Delay: Where the provision of the Services depends on your information or response, we have no liability for a failure to perform the Services in the period estimated, where it is affected by your delay in response or supply of incomplete or incorrect information.
11.4 Referral: On request by you, we may provide you with contact details of third party specialists. This is not a recommendation by us for you to seek their advice or to use their services. We make no representation or warranty about the third party advice or provision of services, and we disclaim all responsibility and liability for the third party advice or provision of services, or failure to advise or provide services.
11.5 Warranties: To the extent permitted by any applicable law, we exclude all express and implied warranties, and all Material and work are provided to you without warranties of any kind, either express or implied. We expressly disclaim all warranties, including but not limited to, implied warranties of merchantability, accuracy, fitness for a particular purpose or non-infringement.
11.6 Liability: To the extent permitted by any applicable law, we exclude all express or implied representations, conditions, guarantees and terms relating to the Services and these Terms, except those set out in these Terms, including but not limited to:
(a) implied or express guarantees, representations or conditions of any kind, which are not stated in these Terms;
(b) the Services being unavailable; and
(c) any loss, damage, costs (including legal costs) or expense, whether direct, indirect, special, consequential and/or incidental, including, without limitation, loss of profits, revenue, production, opportunity, access to markets, data, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, or otherwise suffered by you or claims made against you, arising out of or in connection with your inability to access or use the Services, and the late supply of Services, even if we were expressly advised of the likelihood of such loss or damage.
11.7 Limitation: Our total liability arising out of or in connection with the Services, however arising, including under contract, tort, including negligence, in equity, under statute or otherwise, will not exceed the amount recoverable under our existing professional indemnity insurance.
10.8 Disclaimer: Our Services include advice in relation to foot blisters. You acknowledge and agree that the quality of the advice that we provide is dependent on the information that you provide. As our Services are provided via email correspondence, we accept no responsibility and will not be liable for any harm or damage that you suffer directly or indirectly, as a result of any advice that is inaccurate, incomplete or incorrect, due to your failure to provide us with accurate, complete and correct information and images.
11.9 Survival: This section 11 shall survive the termination of these Terms.
12.1 You are liable for and agree to indemnify, defend and hold us harmless for and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
(a) any information that is not accurate, up to date or complete or is misleading or a misrepresentation;
(b) any breach of these Terms, any other agreements provided by us or any applicable law, statute, ordinance, rule or regulation;
(c) any claims arising from Intellectual Property theft; and
(d) any misuse of the Services from or by you, your employees, contractors or agents. 12.2 You agree to cooperate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of the Services, including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.
12.3 The obligations under this section 12 shall survive the termination of these Terms.
13.1 Privacy: We comply with the US privacy laws and the GDPR in relation to the personal information or data you submit to us when you use the Website.
13.2 Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
13.3 Applicable tax: If and when applicable, the tax payable on the Services will be set out in the Invoice provided to you. By accepting these Terms, you agree to pay us an amount equivalent to the tax imposed on these charges.
13.4 Relationship of parties: These Terms are not intended to create a relationship between the parties of partnership, joint venture, or employer-employee.
13.5 Assignment: These Terms are personal to the parties. A party (you or us) must not assign, transfer, licence or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other party (such consent not to be unreasonably withheld).
13.6 Severability: If any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms, and the remaining provisions (and remaining part of the provisions) of these Terms shall remain valid and enforceable.
13.7 Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control. If we are delayed from performing our obligations due to such a circumstance for a period of at least 2 months, we may terminate our agreement with you by giving you 5 business days’ notice in writing. Circumstances beyond our control may include, without limitation, pandemics (such as COVID-19), wars, riots, civil unrest, governmental actions and acts of God (such as earthquake, tsunami, monsoon and flood).
13.8 Notice: Any notice required or permitted to be given by you or us under these Terms will be in writing addressed to the intended party at the email address the party provides. We will provide any notice to you through the email address you submit when you request for the Services. Our email address is set out at the end of these Terms. Any notice may be sent by email, and notice will be deemed to have been served at the time of transmission in the case of transmission.
13.9 Jurisdiction & Applicable Law: These terms are governed by the laws of the State of Delaware, the United States without regard to conflict of law and its provisions. You hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating within the State of Delaware.
13.10 Entire Agreement: These Terms (along with any agreement or policy referenced therein or on the Website) represent the entire agreement between you and us, and they supersede any prior agreement, understanding or arrangement between you and us, whether oral or in writing.
14. CONTACT US
16192 Coastal Highway, Lewes, Delaware 19958
Phone: 1 (302) 608-0773
Email: [email protected]