FYNS Terms of Sale
Online Terms Last updated: December 20, 2017
Please review these Terms of Sale carefully as these terms govern your purchase of the products and services in your order (the “System”) from FYNS, Inc. (“Find Your Natural Strengths”) and set out your rights and obligations with respect to your purchases, including important limitations and exclusions, such as those contained in our product warranties. These are the Terms of Sale under which we are willing to provide you with the System and requires the use of binding arbitration to resolve disputes rather than jury trials or class actions (described in detail below). Please be certain you understand them.
By clicking the “Submit” button below or using the System, you agree that you have read these Terms of Sale and are legally bound by these Terms of Sale, including the disclaimers, limitations of liability and indemnity obligations below. You may print these Terms of Sale by clicking the print button on your Internet browser.
U.S. Sales Only
Purchases from FYNS are available only in the United States. You agree not to use or attempt to use any FYNS product or service from outside of the United States or for any illegal or unlawful purpose.
Sales to End Users Only
Purchases made through the fyns website are for end user customers only. Sales to dealers, resellers or distributors or any other third-party are prohibited.
FYNS accepts credit cards as forms of payment. FYNS may obtain a pre-approval from the credit card company for an amount up to the amount of the order. Billing to your credit card occurs at the time of purchase or when the order is shipped.
FYNS accepts the following credit cards: Visa, MasterCard, American Express, and Discover. We are unable to accept credit cards issued by banks outside of the United States.
Your total price will include the price of the products in your order plus any applicable sales tax and shipping charges, less any discounts offered. FYNS reserves the right to change prices for products offered at any time, and does not provide price protection or refunds in the event of a price drop or promotional offering. In the event a product is listed at an incorrect price due to typographical error or error in pricing information received from our suppliers, we shall have the right to refuse or cancel any orders placed for product / service listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit has already been charged for the purchase and your order is canceled, we shall immediately issue a credit to your credit card account in the amount of the incorrect price.
FYNS website transactions will include sales tax based on the delivery address and the sales tax rate in effect at the time your transaction is completed. If the sales tax rate for the state to which your order is being shipped changes before the product is shipped, the rate in effect at the time your order was received will apply. You are responsible for all applicable sales taxes, and FYNS has the right to collect any tax it believes it is obligated to collect.
Electronic delivery is used for delivering FYNS products. You assume sole risk of loss or destruction to the System during transmission.
FYNS warrants to you, the initial purchaser of the System, that the System will be free from defects in materials and workmanship under normal use and service for 30 days from the date that you purchase the product.
FYNS’s sole obligations shall be limited within the warranty period to accepting return of the defective product or part and delivering to you an equivalent product or part to replace the defective item. Replacement products may be new or reconditioned, at the sole option of FYNS. FYNS’s warrants any replaced product for 30 days from the time of replacement.
For warranty service, please contact FYNS Customer Support link or visit www.pdpfyns.com/customer-support and click on “Contact Us”. If FYNS is unable to address the issue that you are facing, FYNS will send you a replacement product electronically.
This Limited Warranty does not apply in the following cases: failure to follow interpretation or operating instructions, misuse (which includes, without limitation, using products for measuring abnormalities in people), alteration, abuse, accident or tampering, or damage or non-performance resulting from use of any item or repair services not provided by FYNS. This Limited Warranty also does not apply if damage was caused by Acts of God, natural disasters, labor disputes, war, terrorism, civil strife, or other causes beyond FYNS’s control. Device replacement is excluded from this Limited Warranty. Products that are tested and found to be in good working condition (not defective) are not covered by this Limited Warranty.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THIS LIMITED WARRANTY IS EXCLUSIVE AND EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, OBLIGATIONS OR LIABILITIES, WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE. FYNS DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES TO THE EXTENT PERMITTED BY LAW. INSOFAR AS SUCH WARRANTIES CANNOT BE DISCLAIMED, FYNS LIMITS THE DURATION AND REMEDIES OF SUCH WARRANTIES TO THE DURATION OF THE LIMITED WARRANTY DESCRIBED ABOVE OR THE SHORTEST PERIOD ALLOWED BY LAW. IN NO CASE SHALL FYNS OR ANY OF ITS AFFILIATES, DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, SUBCONTRACTORS, AGENTS OR REPRESENTATIVES (EACH, A “FYNS PARTY” AND COLLECTIVELY, THE “FYNS PARTIES”) BE LIABLE TO YOU OR ANYONE ELSE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES FOR BREACH OF THIS LIMITED WARRANTY OR ANY OTHER WARRANTIES WHATSOEVER. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS AND DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. THEREFORE, THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
FYNS does not represent that the System may not be compromised or circumvented; that the System will prevent any personal injury or device loss; or that the System will in all cases provide adequate warning or protection. You understand that the System may be interrupted, circumvented, unavailable (for a limited or extended time period) or otherwise compromised, including as a result of equipment designed or used by a third party for the purpose of causing false use or gaining unauthorized access to or otherwise affecting or controlling the System.
CONSEQUENTLY, NO FYNS PARTY, AS DEFINED ABOVE, SHALL HAVE ANY LIABILITY FOR ANY LOSS, DAMAGE OR EXPENSE (COLLECTIVELY, “LOSSES”), INCLUDING ANY DEVICE DAMAGE, PERSONAL INJURY (INCLUDING DEATH), ECONOMIC LOSSES OR ANY OTHER FORM OF LOSS, DAMAGE OR EXPENSE ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY A CLAIM. HOWEVER, IF ANY FYNS PARTY, AS DEFINED ABOVE, IS HELD LIABLE, WHETHER DIRECTLY OR INDIRECTLY, FOR ANY LOSS ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY THIS LIMITED WARRANTY OR OTHERWISE, THE AGGREGATE LIABILITY OF ALL FYNS PARTIES, AS DEFINED ABOVE, SHALL BE LIMITED TO THE PURCHASE PRICE OF THE SYSTEM, WHICH SHALL BE THE COMPLETE AND EXCLUSIVE REMEDY AGAINST THE FYNS PARTIES, AS DEFINED ABOVE. YOU ACKNOWLEDGE AND AGREE THAT IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO DETERMINE THE ACTUAL DAMAGES, IF ANY, THAT MAY RESULT FROM A FAILURE OF THE SYSTEM TO GIVE WARNING. THIS AGREED-UPON AMOUNT (THE PURCHASE PRICE OF THE SYSTEM) IS NOT A PENALTY, AND IS THE SOLE REMEDY.
By purchasing from FYNS, you acknowledge that you have had an opportunity to review FYNS’s warranty terms, have done so to the degree you feel you need to be familiar with them, and you accept their terms and conditions, including the limitations, exclusions, and disclaimers.
THE PRICE OF THE SYSTEM IS UNRELATED TO THE VALUE OF DEVICE LOCATED ON OR NEAR YOUR PREMISES AT WHICH THE SYSTEM IS LOCATED. NO PORTION OF THE PURCHASE PRICE IS FOR INSURANCE OR SHALL BE DEEMED OR CONSIDERED INSURANCE PREMIUMS. YOU ACKNOWLEDGE AND AGREE THAT FYNS IS NOT AN INSURER AND SHALL NOT PROVIDE INSURANCE COVERAGE AGAINST ANY LOSSES, AS DEFINED ABOVE. TO THE EXTENT YOU WISH TO HAVE ANY INSURANCE COVERAGE FOR LOSSES, AS DEFINED ABOVE, IT IS YOUR RESPONSIBILITY TO PROCURE AND MAINTAIN SEPARATE INSURANCE POLICIES FROM AN INSURANCE COMPANY OR COMPANIES, SOLELY AT YOUR COST AND EXPENSE, FOR COVERAGE AGAINST ALL LOSSES, AS DEFINED ABOVE, INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY (I) THESE TERMS OF SALE, INCLUDING ANY BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR OBLIGATION ARISING HEREUNDER (II) THE SYSTEM, (III) THE ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE, (IV) THE IMPROPER OPERATION OR NON-OPERATION OF THE SYSTEM, (V) BREACH OF CONTRACT, EXPRESS OR IMPLIED, WHICH OCCURS BEFORE OR AFTER THE SIGNING OF THIS AGREEMENT (VI) BREACH OF WARRANTY, EXPRESS OR IMPLIED, (VII) PRODUCT OR STRICT LIABILITY (VIII) LOSS OR DAMAGE TO OR MALFUNCTION OF FACILITIES NECESSARY TO OPERATE THE SYSTEM, TRANSMIT ANY DATA TO OR RECEIVE DATA AT ANY OTHER FACILITY, (X) A CLAIM FOR SUBROGATION, INDEMNIFICATION OR CONTRIBUTION, OR (XI) A VIOLATION OF ANY APPLICABLE CONSUMER PROTECTION LAW OR ANY OTHER THEORY OF LIABILITY OR ALLEGED FAULT ON THE PART
OF ANY FYNS PARTY, AS DEFINED ABOVE (COLLECTIVELY, THE “COVERED CLAIMS”). RECOVERY FOR ANY LOSS, AS DEFINED ABOVE, SHALL BE LIMITED TO THE INSURANCE YOU PURCHASE SEPARATELY FROM AN INSURANCE COMPANY, IF ANY.
LIMITATIONS OF LIABILITY AND RELEASE
FYNS does not accept liability for Systems purchased hereunder beyond the remedies set forth herein and in FYNS’s limited warranty. In particular, as described in FYNS’s limited warranty, FYNS does not represent that the System may not be compromised or circumvented; that the System will prevent any personal injury or device loss; or that the System will in all cases provide adequate warning or protection. You understand that the System may be interrupted, circumvented, unavailable (for a limited or extended time period) or otherwise compromised, including as a result of equipment designed or used by a third party for the purpose of causing false alarms or gaining unauthorized access to or otherwise affecting or controlling the System. You understand that a properly used product is all your responsibility to use the product for the results you require, but it is not an insurance or a guarantee that such will or will not occur or that there will be no personal injury or device loss as a result.
BY AGREEING TO THESE TERMS, YOU ARE RELEASING EACH FYNS PARTY, AS DEFINED ABOVE, ON YOUR BEHALF AND ON BEHALF OF ALL OTHERS WHO MAKE CLAIMS UNDER THE TERMS OF SALE FROM ALL LOSSES, AS DEFINED ABOVE, ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY ANY COVERED CLAIM, AS DEFINED ABOVE. UNDER NO CIRCUMSTANCES WILL ANY FYNS PARTY, AS DEFINED ABOVE, BE RESPONSIBLE OR LIABLE TO YOU FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES INCLUDING WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, DEATH OR DAMAGES TO DEVICE. NOTWITHSTANDING THE FOREGOING, EVEN IF A FYNS PARTY, AS DEFINED ABOVE, IS FOUND LIABLE FOR ANY LOSSES, AS DEFINED ABOVE, ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY ANY COVERED CLAIM, AS DEFINED ABOVE, ANY SUCH LIABILITY IN THE AGGREGATE OF ALL FYNS PARTIES, AS DEFINED ABOVE, SHALL BE LIMITED TO THE PURCHASE PRICE OF THE SYSTEM, WHICH SHALL BE THE COMPLETE AND EXCLUSIVE REMEDY AGAINST ALL FYNS PARTIES, AS DEFINED ABOVE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Release of Insured Losses; Waiver of Subrogation
You release all FYNS Parties for all Losses covered by your insurance policies and for all insurance deductibles. You also waive and release any subrogation and other rights you or your insurance company may have against any FYNS Party for money paid to you or on your behalf.
IF ANYONE OTHER THAN YOU (INCLUDING YOUR INSURANCE COMPANY) ASKS ANY FYNS PARTY, AS DEFINED ABOVE, TO PAY FOR ANY LOSSES, AS DEFINED ABOVE, INCLUDING ATTORNEYS’ FEES ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY ANY COVERED CLAIM, AS DEFINED ABOVE, YOU SHALL INDEMNIFY, DEFEND AND HOLD EACH FYNS PARTY, AS DEFINED ABOVE, HARMLESS (WITHOUT ANY CONDITION THAT ANY OF THEM FIRST PAY), FOR ALL LOSSES, AS DEFINED ABOVE, INCLUDING ATTORNEYS’ FEES, ASSERTED AGAINST OR INCURRED BY SUCH PARTIES. THE DUTY
TO DEFEND ARISES UPON THE ASSERTION OF A CLAIM OR DEMAND AGAINST FYNS AND DOES SO REGARDLESS OF WHETHER FYNS HAS BEEN FOUND LIABLE OR WHETHER FYNS HAS INCURRED ANY EXPENSE. THE FOREGOING INDEMNIFICATION OBLIGATIONS MAY NOT BE ENFORCEABLE IN SOME STATES, SO SUCH OBLIGATIONS MAY NOT APPLY TO YOU.
Software embedded within any FYNS System is licensed to you under this section on a non-exclusive and limited basis, and not sold. You may use such software only in connection with the product in which it is embedded, and may not modify, distribute, copy or reverse engineer such software. All rights with respect to such software not licensed to you hereunder are fully reserved by FYNS and/or its licensors.
Dispute Resolution and Arbitration
PLEASE READ THIS SECTION CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. Certain portions of this section are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and FYNS agree that FYNS intends that this section satisfies the “writing” requirement of the Federal Arbitration Act. In the event of any dispute or disagreement between the parties, or claim or question by a party, arising from or relating to these Terms of Sale or the breach hereof (collectively, a “Dispute”), the parties hereto shall use their best efforts to settle the Dispute. To this effect, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If the parties do not reach such solution within a period of 60 days then, upon notice by either party to the other, such Dispute shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Consumer Arbitration Rules. Once the Dispute is submitted to the AAA for arbitration and each party pays the appropriate filing fees, the parties agree to equally share all costs of AAA arbitration, including Arbitrator fees and expenses. The parties will remain individually responsible for their own attorney costs or other non-AAA required costs. If an in-person arbitration hearing is required, then it will be conducted at the American Arbitration Association’s office in Boston, Massachusetts.
The arbitration will be heard and determined by a single neutral arbitrator selected by the AAA who is a retired judge or a lawyer with not less than 15 years of experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA’s Consumer Arbitration Rules. The arbitrator will apply applicable law and the provisions of these Terms of Sale and will determine any Dispute according to the applicable law and facts based upon the record and no other basis. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
You can obtain the AAA procedures, rules, and fee information as follows:
- AAA: 800.778.7879
- http://www.adr.org/In arbitration, as with a court, the arbitrator must honor the terms of these Terms of Sale and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. The parties agree that the arbitration shall be confidential. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing.TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR FYNS WANT TO ASSERT A DISPUTE AGAINST THE OTHER, THEN YOU OR FYNS MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN THE SECTION ENTITLED “OTHER TERMS AND CONDITIONS”) WITHIN 1 YEAR AFTER THE DISPUTE ARISES — OR IT WILL BE FOREVER BARRED.NOTWITHSTANDING THE FOREGOING, THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS ACTION BASIS OR ON ANY BASIS INVOLVING ANY DISPUTE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC, OTHER PERSONS OR ENTITIES DOING BUSINESS WITH FYNS, OR OTHER PERSONS OR ENTITIES SIMILARLY SITUATED. FURTHERMORE, ANY DISPUTE BROUGHT BY OR AGAINST FYNS MAY NOT BE JOINED OR CONSOLIDATED IN THE ARBITRATION WITH CLAIMS BROUGHT BY OR AGAINST ANY OTHER FYNS SUBSCRIBER, UNLESS OTHERWISE AGREED BY THE PARTIES. FURTHER, THE PARTIES ACKNOWLEDGE THAT THEY WAIVE ANY RIGHT TO PARTICIPATE IN A REPRESENTATIVE CAPACITY OR AS A MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY DISPUTE SUBJECT TO ARBITRATION. YOU SHALL HAVE THE RIGHT TO OPT OUT OF THIS AGREEMENT TO ARBITRATE BY PROVIDING WRITTEN NOTICE OF YOUR INTENTION TO DO SO BY EMAILING firstname.lastname@example.org WITHIN 60 DAYS OF THESE TERMS OF SALE BECOMING BINDING UPON YOU FOR THE FIRST TIME. OPTING OUT OF THIS AGREEMENT TO ARBITRATE HAS NO EFFECT ON ANY PREVIOUS, OTHER, OR FUTURE ARBITRATION AGREEMENT(S) THAT YOU MAY HAVE WITH FYNS. IF THIS AGREEMENT TO ARBITRATE BECOMES BINDING, YOU CAN NOT CHANGE, MODIFY OR REVOKE IT (INCLUDING BY ATTEMPTING TO OPT OUT IN CONNECTION WITH ANY CONFIRMATION OF THE THESE TERMS OF SALE, AS AMENDED FROM TIME TO TIME) WITHOUT AN AGREEMENT IN WRITING SIGNED BY FYNS. IN THE EVENT THAT YOU OPT OUT OF THIS AGREEMENT TO ARBITRATE IN ACCORDANCE WITH THIS SECTION: YOU AND FYNS EACH HEREBY IRREVOCABLY AGREE THAT ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING (“SUIT”) ARISING OUT OF OR IN CONNECTION WITH OR DUE TO ANY CLAIM OR DISPUTE THAT HAS ARISEN OR MAY ARISE BETWEEN YOU AND FYNS MUST BE RESOLVED EXCLUSIVELY BY A STATE OR FEDERAL COURT LOCATED IN BOSTON, MASSACHUSETTS; YOU AND FYNS EACH CONSENT TO THE EXCLUSIVE JURISDICTION AND VENUE OF EACH SUCH COURT IN ANY SUCH SUIT AND WAIVE ANY OBJECTION THAT YOU OR FYNS MAY HAVE TO JURISDICTION OR VENUE OF ANY SUCH SUIT; YOU AND FYNS EACH CONSENT TO SERVICE OF PROCESS IN ACCORDANCE WITH THE NOTICE PROVISIONS OF THIS AGREEMENT; AND YOU AND FYNS EACH HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY SUCH SUIT.Other Terms and ConditionsYou understand and agree that sales made by FYNS-authorized distributors, resellers or retailers shall be subject to these Terms of Sale, notwithstanding that the ultimate sale may have been made by
authorized distributors, resellers or retailers. Moreover, the initial sales made to you by such FYNS- authorized distributors, resellers or retailers shall be deemed an “initial sale” for the purpose of the Limited Warranty specified herein, and as such the Limited Warranty specified herein shall similarly apply to products sold to you in this manner.
These Terms of Sale and all transactions on the FYNS website are governed by Colorado law without reference to its conflicts of law rules. The interpretation of the Terms of Sale shall not be construed against the drafter.
FYNS will not be liable for any failure to discharge its obligations under the Terms of Sale due to strikes, accidents, fires, or shutdowns of its manufacturing plant or plants supplying it or other contingencies beyond the control of FYNS, including those arising out of or in connection with, due to, or caused in whole or in part by emergency conditions.
All claims, actions or proceedings against fyns must be commenced in court within one (1) year after the cause of action has accrued, without judicial extension of time, or such claim, action or proceeding is barred. The time period in this paragraph must be complied with strictly.
Unless otherwise expressly provided herein, (i) all notices required to be given to fyns shall be deemed to have been duly given if in writing and mailed by regular mail, postage prepaid, or overnight delivery, by a reputable, national overnight delivery service to FYNS’s then current principal place of business and (ii) all notices required to be given to Subscriber shall be deemed to have been duly given if in writing and sent to the e-mail address Subscriber provided to FYNS.
Should any provision of the Terms of Sale (or portion of the Terms of Sale), or its application to any circumstances, be held illegal, invalid or unenforceable to any extent, the validity and enforceability of the remainder of the provision and the Terms of Sale, or of such provisions as applied to any other circumstances, shall not be affected thereby, and shall remain in full force and effect as valid, binding and continuing. When used in these Terms of Sale, the word “including” shall mean “including, but not limited to.”