Terms & conditions

Thank you for reading these Terms of Use (“Terms”). This serves as an agreement between you and Tower Road, Inc., doing business as Biocadence, (“Biocadence”, “We” or “Us”) for the use of the Biocadence Wearable Devices (the “Device”) and the related Biocadence application (the “App”) and any web or mobile sites (the “Sites”) which will collectively be referred to as the “Biocadence Service.” You accept these terms by accessing any portion of the Biocadence Service; if you do not agree do not use Biocadence Service.

Please note these terms include a waiver of jury trials, a class-action waiver, and require binding arbitration on an individual basis to resolve disputes.

We may modify these Terms of Use at any time by updating this posting. You are bound by any such modification and should therefore visit this page periodically to review these Terms of Use. Your continued use of the Biocadence Service following the posting of the revised Terms constitutes acceptance of the modified terms.

Eligibility

You must be 13 years of age or older to use the Biocadence Service.

Privacy Policy

Please refer to our Privacy Policy to learn how we collect, use and disclose information from users of the Biocadence Service.

Medical Warnings and Disclaimer

Use of the Biocadence Service is at your own risk. The Biocadence Service is intended for recreational use only and is not intended to diagnose, treat, prevent, or cure any disease. You should always consult with your physician or other qualified healthcare provider before significantly changing your diet, lifestyle or engaging in strenuous or increased physical activity. If you have any specific questions about your use of the Biocadence Service or your health and fitness, you should consult your doctor or other healthcare provider. If you experience a medical emergency or medical symptoms, stop using the Biocadence Service and consult with a medical professional. We are not responsible for any health problems that may result from your use of the Biocadence Service or injuries due to the physical nature of wearing a device during any activity. We are not responsible for wellness programs, consultations, recommendations, advice, tips, content, products, services, or events you learn about through the Biocadence Service.

Prolonged contact with wearable devices may contribute to skin irritation or allergies in some users. If you notice any skin irritation, remove your device. If symptoms persist longer than 2-3 days after removing the device, consult your doctor.

Copyright and Limited License

(a) The Biocadence Service and all content and other materials contained in the Biocadence Service, including, without limitation, the Biocadence logo, user interface, and all text, designs, photos, graphics, videos, articles, tips, comments, information, data, software, sound files, and the selection and arrangement thereof (the “Biocadence Content”) are the proprietary property of Biocadence and its licensors and users and are protected by patent, copyright and other intellectual property laws and treaties. You agree not to use the Biocadence Service except in its intended manner in accordance with these Terms. The App and the Biocadence Content are licensed and not sold to you.

(b) Subject to the terms, conditions and limitations set forth in these Terms, Biocadence grants you a limited, non-exclusive, non-transferable, and non-sublicensable license to install and use the App on any mobile device that you own or control and to access and use the Biocadence Service, solely for your personal, noncommercial use and enjoyment. We reserve the right to terminate this license at any time in our sole discretion.

License Limitations

You agree not to do, or authorize or permit others to do, any of the following: (i) rent, lease, lend, sell, redistribute or sublicense the App or the Sites or make any commercial use thereof or of the Biocadence Service; (ii) copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify or tamper with any portion of the App, the Sites or other aspects of the Biocadence Service (except to the extent any such restrictions are prohibited by applicable law); (iii) modify, alter or create any derivative works of the App or the Sites; (iv) modify or attempt to modify the Device or circumvent any technological measure implemented by Biocadence or third parties to protect the Biocadence Service or any users; (v) access the Biocadence Service or any Biocadence Content through the use of any mechanism other than through the use of an Authorized Device and the App in the form provided by Biocadence; (vi) remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in the App or the Sites; (v) use any data mining, robots or similar data gathering or extraction methods; or (vi) use the Biocadence Service other than for their intended purpose or in a manner that interferes with the use of the Biocadence Service by other users.

DMCA/Copyright

If you believe that anything on the Biocadence Service infringes upon any copyright which you own or control please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You may file a notification of such infringement with our Designated Agent at info@biocadecnce.com.

Third Party Sites and Services

The Biocadence Service contains links to third party content, data, information, events, applications or materials, including tips, factoids, recommendations, advice, and articles that may be accessed through the Biocadence Service (collectively the “Third Party Materials”) and may also link to third party web sites, applications, service providers, or other third party products and services (“Third Party Services”). Biocadence does not endorse and makes no representations or warranties of any kind regarding any Third Party Materials or Third Party Services. If you access or use any third party web site, you should be aware that Biocadence’s terms and policies no longer govern.

Termination or Modification of Biocadence Service

Biocadence reserves the right to modify, suspend, remove, or discontinue the Biocadence Service or to terminate your account or disable or suspend your access to the App or the Sites at any time without notice. In no event will Biocadence be liable for the removal of or disabling of access to the App or the Sites.

Trademarks

Biocadence, the Biocadence logos and any other Biocadence product or service name or slogan contained in the Biocadence Service are trademarks of Biocadence, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Biocadence or the applicable trademark holder. You may not use any metatags or any other “hidden text” utilizing “Biocadence” or any other name, trademark or product or service name of Biocadence without our prior written permission. In addition, the look and feel of the Biocadence Service, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Biocadence and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Biocadence Service are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.

Indemnification

You agree to defend, indemnify and hold harmless Biocadence, and its employees, contractors, service providers, consultants, directors, agents, successors, and assigns, from and against all claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to: (a) your conduct in connection with the Biocadence Service; (b) your violation of these Terms; or (d) your violation of the rights of any third party.

LIMITED DEVICE WARRANTY AND DISCLAIMERS

Biocadence provides a limited one year warranty on Devices purchased directly from it or its authorized dealers, as described on our Warranty provided with each device. EXCEPT FOR THE DEVICE WARRANTY, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE BIOCADENCE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. EXCEPT FOR THE DEVICE WARRANTY, BIOCADENCE HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WITH RESPECT TO THE BIOCADENCE SERVICE, EITHER EXPRESS, IMPLIED OR ARISING BY LAW, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE BIOCADENCE SERVICE IS AT YOUR SOLE RISK.

BIOCADENCE CANNOT AND DOES NOT WARRANT THAT THE BIOCADENCE SERVICE WILL FUNCTION CORRECTLY AND WITHOUT DELAYS OR DISRUPTIONS, WILL AT ALL TIMES BE SECURE, ERROR FREE AND PREVENT UNAUTHORIZED ACCESS, OR THAT ALL DEFECTS IN THE BIOCADENCE SERVICE WILL BE CORRECTED. NO ORAL OR WRITTEN STATEMENTS, INFORMATION, GUIDELINES OR ADVICE GIVEN BY BIOCADENCE OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE ANY WARRANTY. YOU UNDERSTAND THAT THE DATA GENERATED THROUGH THE BIOCADENCE SERVICE IS MERELY AN ESTIMATE, AND BIOCADENCE IS NOT RESPONSIBLE FOR, AND MAKES NO WARRANTIES OF ANY KIND REGARDING, THE ACCURACY, QUALITY, RELIABILITY, EFFECTIVENESS, TIMELINES, TRUTHFULNESS, COMPLETENESS OR CORRECT USE OF INFORMATION YOU RECEIVE THROUGH THE BIOCADENCE SERVICE.

LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BIOCADENCE BE LIABLE FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE DEVICE, THE APP, THE SITES OR ANY OTHER ASPECT OF THE BIOCADENCE SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE), AND OTHER USER CONTENT, EVEN IF BIOCADENCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT SHALL BIOCADENCE’S TOTAL LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE APP, THE SITES OR THE BIOCADENCE SERVICE EXCEED THE GREATER OF TEN DOLLARS OR THE TOTAL AMOUNT, IF ANY, THAT YOU HAVE PAID FOR THE DEVICE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

Export Limitations

You may not use or otherwise export or re-export the Device or the App except as authorized by United States law and the laws of the jurisdiction in which the Licensed App was obtained. In particular, but without limitation, neither the Device nor the App may be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Biocadence Service, you represent and warrant that you are not located in any such country or on any such list.

Arbitration Agreement; Class Waiver; Waiver of Trial by Jury

PLEASE READ THE FOLLOWING CAREFULLY BECAUSE THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH BIOCADENCE, AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

(a) Applicability of Arbitration Agreement. All claims and disputes in connection with the Terms or the use of the Biocadence Service or any other product or service provided by Biocadence that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms set forth below (the “Arbitration Agreement”), except that neither of us are required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. This Arbitration Agreement applies to you and Biocadence, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.

(b) Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules conflict with the Terms (“Arbitration Rules”). The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than ten thousand U.S. dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is ten thousand U.S. dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

(c) Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected as provided above, the arbitration shall be conducted by telephone, online, and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.

(d) Authority of the Arbitrator. The arbitrator will decide the rights and liabilities, if any, of you and Biocadence, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Biocadence.

(e) Waiver of Jury Trial. YOU AND BIOCADENCE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Biocadence in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND BIOCADENCE WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

(f) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Notwithstanding any other provision in these Terms, in the event that this subparagraph is deemed invalid or unenforceable, neither you nor we are entitled to arbitration and instead all claims and disputes shall be resolved in a court located in the State of Wyoming.

(g) Confidentiality. No part of the procedures shall be open to the public or the media. All evidence discovered or submitted at the hearing is confidential and may not be disclosed, except by written agreement of the parties, pursuant to court order or unless required by law. Notwithstanding the foregoing, no party shall be prevented from submitting to a court of law any information necessary to enforce this Arbitration Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.

(h) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.

(i) Small Claims Court. Notwithstanding the foregoing, either you or Biocadence may bring an individual action in small claims court.

(j) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in the State of Wyoming, for such purpose.

(k) Survival. This Arbitration Agreement will survive the termination of your relationship with Biocadence.

Governing Law

The laws of the State of Wyoming, excluding its conflicts of law rules, govern your use of the Biocadence Service. Your use of the Biocadence Service may also be subject to other local, state, national, or international laws. You agree that any action at law or in equity arising out of or relating to the Biocadence Service or this agreement shall be filed only in the state and federal courts located in Wyoming, and you irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of the Biocadence Service.

Severability

If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.

Note to International Users

The Biocadence Service is hosted in the United States. If you are a user accessing the Biocadence Service from the European Union, Asia, or any other region with laws or regulations governing personal data collection, use, and disclosure that differ from United States laws, please be advised that through your continued use of the Biocadence Services, which are governed by U.S. law, you are transferring your personal information to the United States and you consent to that transfer.

ADDITIONAL TERMS APPLICABLE TO IPHONE, IPOD TOUCH OR IPAD APPLICATIONS

Notwithstanding anything to the contrary in the terms set forth above, the following additional terms shall apply to any Applications downloaded for use on the iPhone, iPod Touch, or iPad:

1. Acknowledgement: The parties acknowledge that this User Agreement is concluded solely between such parties, and not with Apple, and Biocadence, not Apple, is solely responsible for the Application and the content thereof. You further acknowledge that the usage rules for the Application are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service as of the date you download the Application, and in the event of any conflict, the Usage Rules in the App Store shall govern if they are more restrictive
   

2. Scope of License: The license granted to you is limited to a non-transferable license to use the Applications on any iPhone, iPod touch, or iPad that you own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
   

3. Maintenance and Support: The parties acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
   

4. Warranty: You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the Applications. In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the Application to that end-user; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of Biocadence. However, you understand and agree that in accordance with the User Agreement, Biocadence has disclaimed all warranties of any kind with respect to the Application, the Site and the Biocadence Service, and therefore, there are no warranties applicable to the Applications.
   

5. Product Claims: The parties acknowledge that as between Apple and Biocadence, Biocadence, not Apple, is responsible for addressing any claims of the end-user or any third party relating to the Application or the end-user’s possession and/or use of that Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
   

6. Intellectual Property Rights: The parties acknowledge that, in the event of any third party claim that the Application or the end-user’s possession and use of that Application infringes that third party’s intellectual property rights, Biocadence, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under the User Agreement.
   

7. Legal Compliance: You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
   

8. Developer Name and Address: Any end-user questions, complaints, or claims with respect to the Application should be directed to info@biocadence.com

9. Third Party Beneficiary: The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the User Agreement, and that, upon the end-user’s acceptance of the terms and conditions of the User Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the User Agreement against the end-user as a third party beneficiary thereof).