The Web site located at www.trysensa.com (this "Site") is owned and operated by Sensa Products, LLC ("Company"). Use of this Site, and any purchases made through this Site, are governed by the terms of service, use and purchase described below ("Terms"). Your use of the Site constitutes your agreement to be bound by the Terms.
You must be at least 18 years old to purchase products from this Site. Company reserves the right in its discretion to revise the Terms from time to time so please check back here periodically for updates. By using this Site, you accept and agree to Company’s right to revise the Terms from time to time and to be bound by such changes, so long as they are promptly posted on the Site or emailed to the email account we have on record for you. If you do not wish to be bound to these Terms (or any revisions to these Terms), please do not use this Site or purchase any products through this Site.
Your use of this Site for any illegal or unauthorized purpose is expressly prohibited.
You represent and agree to: (a) provide true, accurate, current and complete information about yourself when creating an account and password with the Site ("Account") and (b) maintain and promptly update your Account to keep it true, accurate, current and complete. If you provide or Company has reasonable grounds to suspect that you have provided information that is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your Account and refuse any and all current or future access to the Site (or any portion thereof).
You are solely responsible for maintaining the confidentiality of your Account, all activities occurring under your Account and all access to and use of the Site by anyone using your Account, whether or not such activities and access are actually authorized by you, including but not limited to all communications, transactions and obligations. Company shall not be liable or responsible for any loss or damage arising from any unauthorized use, access or any other breach of security of your Account, including but not limited to your member sign-in password and email address. You acknowledge and accept that your use of the Site is in compliance with these Terms. You further acknowledge and accept that Company shall have no obligation to investigate the authorization or source of any Account activity, including purchase activity following a proper log-in to the Site, which is defined as a matching and current member sign-in and user password. You shall notify Company immediately of any unauthorized access to your Account or any other unauthorized use of the Site.
You agree that Company may, without prior notice, immediately terminate, limit your access to or suspend your Account based on any of the following: (a) breach or violation of these Terms; (b) upon request by law enforcement; (c) unforeseeable technical or security issues or problems; (d) extended periods of inactivity; and/or (e) fraudulent or illegal activity, or any other activity which Company believes is harmful to this Site or its business interests. You agree that all terminations, limitations of access and/or suspensions shall be made in Company's sole discretion and that Company shall not be liable to you or any third party for any termination, limitation on access to, or suspension of your Account.
Company reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Site (or any part thereof) with or without notice. You agree that Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site (or any part thereof). The following sections shall survive any termination of these Terms: "Copyright Infringement Notice and Procedure," "Indemnification," "Disclaimer of Warranties; Limitation of Liability," "Disputes and Dispute Resolution" (including all subsections) and "General".
You acknowledge, consent and agree that Company may access your Account for any reason in its sole and absolute discretion. You further acknowledge, consent and agree that Company may disclose your Account (and its contents) if required to do so by law or if it has a good faith belief that such disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce these Terms; (iii) respond to claims; and/or (iv) protect the rights, property or personal safety of Company, its users and/or the public.
The Site may provide links to other websites. You acknowledge and agree that Company is not responsible for the availability of such external websites, and does not endorse and is not responsible or liable for any content, advertising, products and/or other materials on or available from such websites. You further acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such website.
Prices, descriptions and availability of products on this Site are subject to change without notice. Errors may be corrected when discovered, and Company reserves the right to revoke any stated offer in order to correct any errors or inaccuracies.
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials ("Content"), whether publicly posted or privately transmitted, is the sole responsibility of the person from whom such Content originated. You, and not Company, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available on the Site.
You acknowledge that Company may or may not pre-screen Content, and that Company shall have the right in its sole discretion and for any reason to pre-screen, refuse, or remove any Content that is available on the Site. You agree that you alone must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
You acknowledge, consent and agree that Company may access and/or disclose your Content for any reason in its sole and absolute discretion.
By submitting, posting or displaying Content on the Site, you grant Company, its parent, and affiliates the perpetual, irrevocable, worldwide, royalty-free, non-exclusive license to use, copy, display, reproduce, publish and distribute such Content in any form of media.
You acknowledge and agree that Company owns all right, title and interest in and to the Site. You agree that all of Company's trademarks, trade names and other Company logos, brand features, and product names are trademarks and the property of Company ("Company Marks"). You agree not to display or use in any manner Company Marks without Company's prior written approval.
You agree not to engage in the following activities: (a) upload, post, email, transmit or otherwise make available any Content that is fraudulent, deceptive, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or is otherwise objectionable; (b) impersonate any person, business or entity, including, but not limited to, Company and its employees or agents; (c) victimize, harass, degrade, intimidate, or "stalk" an individual or group of individuals whether on the basis of religion, gender, sexual orientation, race, ethnicity, age, disability or otherwise; (d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content; (e) upload, post, email, transmit or otherwise make available: (i) any Content that you do not have a right to make available under any law or contract, (ii) any Content that infringes any intellectual property or proprietary rights of any third party, including but not limited to, patent, trademark, trade secret, copyright, and/or publicity rights, or (iii) any material that contains software viruses or any other computer codes, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (f) interfere with or disrupt the Site or servers or networks connected to the Site, or interfere with any other party's use and enjoyment of the Site; (g) gain or attempt to gain unauthorized access to the Site, Accounts, computer systems or networks via hacking, password mining or any other means; (h) transmit, directly or indirectly, any unsolicited bulk communications, including emails and instant messages; (i) violate any applicable local, state, or federal laws, rules and/or regulations; or (j) violate these Terms or any policy posted on the Site.
You also agree to not engage in or attempt to engage in the following activities: (a) market, promote, advertise, sell or offer for sale any business, product or service through the Site or to users on the Site, or (b) post, transmit, store or otherwise publish Content, links or any other material on the Site that directly or indirectly markets, promotes, advertises, sells or offers for sale third party products or services.
You agree to indemnify and hold Company and its subsidiaries, affiliates, officers, agents, and employees harmless from any and all liabilities, claims, demands, actions, suits, losses, obligations, judgments, proceedings, damages, expenses and costs (including reasonable attorneys' fees), based upon, arising from or related to (a) Content submitted, transmitted, posted or otherwise made available on or through this Site by you or any other person accessing the Site using your Account; (b) the use of, or connection to, this Site by you or any other person accessing the Site using your Account (including negligent or wrongful conduct); (c) your breach or attempted breach of these Terms; or (d) your violation of any third party rights.
YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THE SITE AND THE PRODUCTS OFFERED ON THE SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND ON YOUR USE OF THE SITE OR ANY PRODUCTS PURCHASED THROUGH THE SITE, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY DOES NOT REPRESENT OR WARRANT THAT YOUR USE OF THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR FREE FROM ERROR OR THAT ANY ERRORS WILL BE CORRECTED.
COMPANY DOES NOT CONTROL THE CONTENT POSTED BY USERS AND DOES NOT GUARANTEE THE ACCURACY, INTEGRITY OR QUALITY OF SUCH CONTENT. YOU UNDERSTAND THAT BY ACCESSING THE SITE, YOU MAY BE EXPOSED TO CONTENT THAT YOU MAY FIND OFFENSIVE, INDECENT OR OBJECTIONABLE. UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE IN ANY WAY FOR ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE AND/OR VIEWING OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE ON THE SITE.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT COMPANY SHALL NOT BE LIABLE TO YOU FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), BASED UPON, ARISING FROM OR RELATED TO: (A) THE USE OR THE INABILITY TO USE THE SITE; (B) UNAUTHORIZED ACCESS TO, DELETION, CORRUPTION OR ALTERATION OF YOUR CONTENT OR ACCOUNT; (C) YOUR FAILURE TO KEEP YOUR ACCOUNT SECURE AND CONFIDENTIAL; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; OR (E) ANY OTHER MATTER RELATING TO THE SITE.
CERTAIN STATE LAWS MAY NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
Company respects the intellectual property of others, and we ask our users to do the same. Company may, in appropriate circumstances and at its discretion, disable and/or terminate the Accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide the following information:
(1) a description of the copyrighted work that you believe has been infringed upon and a description of the infringing activity;
(2) a description of the location of the material that you believe is infringing;
(3) your contact information, including address, telephone number and email address;
(4) a 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;
(5) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner;
(6) a physical or electronic signature by you; and
(7) send the written notice to the following address:
Sensa Products, LLC
Attn: Copyright Agent
2301 Rosecrans Ave., Suite 1150
El Segundo, CA 90245-4967
OR Fax to:
(310) 727-0854, Attn: Copyright Agent
OR email to:
Use of this Site, your Account, any purchases made through this Site, and any controversy, claim or dispute arising out of or relating in any way to your use of the Site, your Account, or products purchased through the Site shall be governed by the laws of the your home state of residence without respect to its choice (or conflict) of laws rules.
Both you and Company waive the right to bring any controversy, claim or dispute arising out of or relating in any way to your use of the Site, your Account, or products purchased through the Site as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any such claim brought by anyone else. (This waiver, and the similar waiver specified for arbitration proceedings, are generally referred to herein as "the class action waiver.")
Jurisdiction and venue for any dispute shall be in Los Angeles, California. Each party submits to personal jurisdiction and venue in that forum for any and all purposes.
AGREEMENT TO PRE-ARBITRATION NOTIFICATION
These Terms provide for final, binding arbitration of all disputed claims (discussed immediately below). Company and you agree, however, that it would be advantageous to discuss and hopefully resolve any disputes before arbitration proceedings are initiated. In the event of a dispute, the claimant – whether you or Company – shall send a letter to the other side briefly summarizing the claim and the request for relief. If Company is the claimant, the letter shall be sent, via email, to the email account listed in your Account. If you are the claimant, the letter shall be sent to Sensa Products, LLC, Attn: General Counsel, 2301 Rosecrans Avenue, Suite 1150, El Segundo, California 90245. If the dispute is not resolved within 60 days after the letter is sent, the claimant may proceed to initiate arbitration proceedings.
AGREEMENT TO ARBITRATE CLAIMS
Any controversy, claim or dispute arising out of or relating in any way to your use of the Site, your Account, or products purchased through the Site shall be resolved by final and binding arbitration.
The arbitration shall take place in Los Angeles County, California in accordance with the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures of the American Arbitration Association. Unless either party or the arbitrator requests a hearing, the parties will submit their arguments and evidence to the arbitrator in writing. The arbitrator will make an award based only on the documents. This is called a Desk Arbitration. If any party makes a written request for a hearing within ten days after the American Arbitration Association acknowledges receipt of a claimant's demand for arbitration (or the arbitrator requests a hearing), the parties shall participate in telephone hearing. In no event shall the parties be required to travel to Los Angeles to participate in the arbitration.
If you decide to commence arbitration, the provider will require to you to pay a filing fee (which currently is $125 for claims under $10,000). If your filing fee is more than $125, Company will reimburse you for any excess fee promptly after it receives notice of your arbitration. If the arbitrator ultimately rules in your favor, Company will also reimburse you for the $125 base fee.
If the arbitrator rules in your favor in any respect on the merits of your claim and issues you an award that is greater than the value of the Company’s last written settlement offer made before an arbitrator was selected (or greater than zero if no offer was made), then Company will pay you the amount of the award or $500, whichever is greater (in addition to reimbursing you for the base fee).
This arbitration agreement is subject to the Federal Arbitration Act and is enforceable pursuant to its terms on a self-executing basis. Either party may seek enforcement of this provision in any court of competent jurisdiction.
The arbitrator shall determine any and all challenges to the arbitrability of a claim.
The arbitral award shall be judicially enforceable. Any court of competent jurisdiction may, and upon request shall, enter judgment on the arbitral award. Either party may seek confirmation (judgment on the award) and/or enforcement in any court of competent jurisdiction.
Notwithstanding any provision in the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures to the contrary, and with the exception of Desk Arbitrations, the Federal Rules of Evidence shall govern the admissibility of evidence in any arbitral proceeding.
Both you and Company waive the right to bring any claim covered by this dispute resolution provision as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any claim covered by this dispute resolution provision brought by anyone else.
Notwithstanding any provision in the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures to the contrary, the arbitrator shall not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or otherwise combine the claims of different persons into one proceeding.
If a proposed class, consolidated, representative, collective, or private attorney general action arbitration is initiated notwithstanding the above prohibition and it is finally determined by the arbitrator (or a court of competent jurisdiction) that the waiver specified herein is not enforceable, then the arbitration proceedings shall be bifurcated as follows and notwithstanding any provision in the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures to the contrary: 1. The issue of arbitrability shall be determined by the Arbitrator pursuant to the applicable rules and substantive law. 2. Assuming the Arbitrator concludes that the arbitration may proceed, said arbitration shall be stayed, and the issue of whether to certify any alleged or putative class for a class action (or other representative) proceeding shall be presented to and decided by a court of competent jurisdiction. The arbitrator shall not have authority or jurisdiction to decide class certification (or any similar representative action) issues. The decision to certify or not certify a class action (or to otherwise permit the action to proceed on a representative basis) shall be appealable in the judicial proceedings consistent with the rules and law governing the appeals of interlocutory decisions or class certification (or similar) rulings specifically, if appropriate. 3. Once any issues regarding class certification (and/or similar representative requirements) have been finally decided by the court, the arbitrator will have authority to decide the substantive claims on an individual or a class (or other representative) basis, as may be determined and directed by the court.
The arbitrator(s) shall not have the power to commit errors of law or legal reasoning, make clearly erroneous factual findings, or abuse his or her discretion, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.
You may elect to opt out (exclude yourself) from the final, binding arbitration procedure and the class action waiver specified in these Terms by doing the following. Within 15 days of the earlier of first setting up your Account or making your first purchase, you must send a letter to Sensa Products, LLC, c/o Legal Department, 2301 Rosecrans Avenue, Suite 1150, El Segundo, California 90245 that specifies (1) your name, (2) your account number or account member name, (3) your mailing address, and (4) your request to be excluded from the final, binding arbitration procedure and class action waiver specified in these Terms. All other Terms shall continue to apply to your Account, including the requirement to participate in pre-dispute mediation. Notwithstanding any provision in these Terms to the contrary, Company agrees that if Company makes any future change to the dispute resolution procedure and class action waiver provisions (other than a change to Company’s address), you may reject any such change (but only that change)by sending a letter to Company (to the address provided above) within 15 days of Company providing notice of the change.
Your letter must be postmarked by the applicable 15-day deadline to be effective. You are not required to send the letter by confirmed mail or return receipt requested, but it is recommended that you do so. Your request to be excluded will only be effective and enforceable if you can prove that the request was postmarked within the applicable 15-day deadline.
These Terms constitute the entire agreement between you and Company and governs your use of the Site and supersedes any prior version of these Terms between you and Company with respect to the Site.
The failure of Company to exercise or enforce any right or provision of these Terms shall not constitute a waiver or relinquishment to any extent of Company's right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect. If any provision of these Terms is found by the arbitrator or (if proper) a court of competent jurisdiction to be invalid, the parties nevertheless agree that the remaining provisions shall not be affected thereby and shall continue in full force and effect, and such provision may be modified or severed from these Terms to the extent necessary to make such provision enforceable and consistent with the remainder of these Terms.
Except where otherwise specified, Company may deliver notice to you by means of electronic mail, a general notice on the Site or by other reliable method.