The Services are owned and operated by FluxWear, Inc., and its affiliates (collectively “FluxWear”). In this Agreement, we refer to ourselves as “FluxWear” or “us” or “we”; we refer to you as “you” or “Customer.” FluxWear and Customer are referred to in this Agreement individually as a “Party” and collectively as the“Parties.”
Phone number: (866) 743-1662
Physical address: 191 West 2nd Street, Santa Ana CA 92701,United States
From time to time, FluxWear will post and update its policies on its website. Those policies will be found at:
Refunds,exchanges, and warranty coverage: www.fluxwear.com/refunds-exchanges-warranty
Intellectual Property Coverage: www.fluxwear.com/patents
Access and Use
FluxWear grants you a limited license to access the Site and/or use the Products subject to this Agreement. You acknowledge and agree that FluxWear may modify, update, and otherwise change the Services at any time and in its sole discretion. You represent and warrant that you are at least 18 years of age and have the legal authority to accept this Agreement on your behalf or on behalf of any party you represent. You alone are responsible for your activities and interaction with the Services. You shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit or enable any third-party to: (i) copy, modify, or create derivative works of the Services, in whole or in part; (ii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any component of the Services, in whole or in part; or (iii) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person (including but not limited to web scraping), or that otherwise violates any law, regulation, or other legal requirement. Purchases are intended for you as the end user only and are not authorized for resale, without FluxWear’s express authorization. We reserve the right to refuse or cancel your order if we suspect you are purchasing Services for resale. Title for Products purchased from FluxWear passes to you at the time of delivery by FluxWear or our designated carrier. Except for the limited license to access the Site and/or use the Products identified above, you acknowledge that nothing contained in this Agreement shall be construed as granting or conferring, by implication, estoppel, or otherwise, any right, title, or interest to any intellectual property, including any (i) inventions (whether patentable or not in any country), patents, patent applications, invention disclosures, improvements, trade secrets, proprietary information, know how, information, or technical data; (ii) copyright protected works, copyright registrations, mask works, mask work registrations, or applications in the United States or any foreign country; (iii) trademarks, trademark registrations, service marks, logos, or applications therefor in the United States or any foreign country; (iv) trade secrets; or (v) any other tangible or intangible proprietary rights anywhere in the world. You acknowledge and agree that at times the Services may be inaccessible or inoperable for any reason whatsoever, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which FluxWear may undertake from time to time without notice to you; or (iii) causes which are beyond the control of FluxWear or which are not reasonably foreseeable.
You acknowledge that you are solely responsible and liable for your use of the Services, directly or indirectly, including understanding whether such access or use is permitted by or in violation of this Agreement. You are further solely responsible for compliance with all applicable laws relating to your use of the Services. You shall further use the Services solely for lawful purposes and shall conduct all business through the Services in accordance with all applicable laws and regulations, including but not limited to all applicable federal and state laws and regulations governing the offer and sale of securities, money laundering, and counterterrorism. You alone are responsible for ensuring and maintaining that you are able to access and use the Services. FluxWear shall have no responsibility to provide any additional software, hardware, or accessories. You further agree that FluxWear shall have no responsibility for any data loss or other damage or loss suffered in connection with your use of the Services, including any failure to provide adequate security or backup devices or services. You are responsible for ensuring FluxWear has accurate and current information for your Customer account, including current contact and payment information. You are further responsible for regularly reviewing the associated Customer email account for any communications from FluxWear. You are also solely responsible for properly and accurately measuring your head size and requesting the right size SHIFT for your use. If you repeatedly fail to do so, which you believe necessitates more than one return, FluxWear reserves the right to deny such requests. If you are provided with a username, password, credentials file, or any other piece of information as part of any security procedure(“Credentials”), you must treat such information as confidential, and must not disclose Credentials to any other person or entity. You acknowledge that your account and Credentials are personal to you, and further agree not to provide any other person with access to the Services or portions of the Services using your username, password, or other security information. You shall notify FluxWear immediately of any unauthorized access to or use of your Credentials or any other breach of security. FluxWear has the right to disable any username, password, credentials file, or other identifier at any time, whether chosen by you or provided by FluxWear. FluxWear shall make commercially reasonable efforts to provide adequate support services for the Services. Notwithstanding the foregoing, this Agreement does not entitle you to any guaranteed level, availability, or turnaround time of support services for the Services.
Payment and Fees
Paid Services include one-time purchases of SHIFT and/or SHIFT accessories (“Paid Services”). We may make changes to, suspend, or discontinue Paid Services at any time for any reason, and FluxWear reserves the sole discretion to determine which Services or portions thereof require payment. Paid Services may include pre-ordered Products that will be produced for you in the future (“Pre-Order”). You will be charged a Pre-Order fee when placing your Pre-Order. The actual date for shipping any accepted Pre-Order will depend on a variety of factors, including but not limited to, the date of payment of your Pre-Order fee and FluxWear’s manufacturing schedule. There is no shipping date guarantee for Pre-Orders. You agree to pay all applicable fees for Paid Services including, without exclusion, any upfront or installment payment plans and any fees or costs associated therewith that you agree to purchase as part of the Paid Services during the checkout process (“Fees”). You agree to pay all Fees and all applicable taxes incurred prior to termination or cancellation of the Agreement. You authorize FluxWear to charge your designated payment method for Paid Services. By providing an acceptable payment method, you represent and warrant that you are authorized to use the designated payment method and that you authorize us or our third-party payment processor to charge your payment method for the total amount of your purchase, including any applicable taxes and other charges. If the payment method cannot be verified, is invalid, or is otherwise not acceptable, your Paid Service may be suspended or canceled. You must resolve any problem we encounter in relation to the payment method you provide in order to proceed with your use of the Service. If you accept a promotional offer or make changes to your Paid Services, the Fees, taxes, and amounts billed may vary. Billing amounts may also vary due to changes inapplicable taxes or currency exchange rates. You authorize us or our third-party payment processor to charge your payment method for the corresponding amount. Refunds will not be issued unless required by law. This payment obligation shall survive termination or cancellation of this Agreement for any reason whatsoever. If you choose to finance a purchase through our third-party payment processor and one or more items in your order has an extended ship date, your loan payment(s), including interest, may be due before we ship all of the items. Please note that you may not receive a rebate of any interest that may have already accrued on an amount that is later refunded.
Data and Communications
Intellectual Property Rights
FLUXWEAR and SHIFT are trademarks of FluxWear, Inc. FluxWear’s Services, and our underlying technology, are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. All rights reserved. You are not granted, by implication or otherwise, any license or right to use any inventions claimed in any domestic or foreign patents or patent applications owned or exclusively licensed to FluxWear (“Patents”). Additionally, you are not granted, by implication or otherwise, any license or right to use any marks appearing on, or used or displayed in connection with, the Services (“Trademarks”). The Services may also contain or refer to third-party trademarks, trade names, product names, and logos that may be registered trademarks of their respective owners. Under no circumstances may you use or copy any of the Trademarks. Nothing herein should be construed as granting any license or right to use any Trademarks displayed in connection with the Services without FluxWear’s express written permission.
All content provided in association with the Services and this Agreement, including, but not limited to, the Site and the Product, all text, graphics, user interfaces, visual interfaces, photographs, images/video, electronic art, sounds/audio, data, communications programs, executable code, computer code, and data (collectively, “Content”) formatted, organized, and collected in a variety of forms, including design, structure, selection, coordination, expression, “look and feel,” arrangement, layouts, pages, screens, and databases of such Content, contained in the Content, Services, and underlying technology, and any and all other copyright-protected work associated with the Services (“Copyrighted Works”), are exclusively owned, controlled, or licensed by or to FluxWear and are protected by U.S. and international copyright laws.
You agree you will not directly or indirectly copy, reproduce, modify, create derivative works from, distribute, or publicly display the Copyrighted Works without the prior express written permission of FluxWear. If you provide any communications or materials to FluxWear by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), FluxWear is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. FluxWear is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although FluxWear is not required to use any Feedback. FluxWear respects the intellectual property rights of others and it is our policy to expeditiously process and review notices of claimed infringement of copyright or other applicable intellectual property laws. Any notices of claimed infringement should be sent to firstname.lastname@example.org, and must contain all of the following: (i) a signature (physical or electronic) of the copyright owner or a person authorized to act on behalf of the copyright owner; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of the material that you claim is infringing and is to be removed or have access to same disabled, and information sufficient to permit FluxWear’s administrators to locate the material; (iv) information sufficient for us to contact you, such as address, telephone number, and email address; (v) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate and, under penalty of perjury, that you are the copyright owner or are authorized to act on behalf of the owner of a copyright that is allegedly infringed.
THE SERVICES ARE PROVIDED TO YOU “AS IS WITH ALL FAULTS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, AND FLUXWEAR AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, PARTNERS, AND LICENSORS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES WHETHER EXPRESS OR IMPLIED AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE,MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND NON-INFRINGEMENT. FLUXWEAR DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICES, THE AVAILABILITY OF CONTENT, THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE SERVICES WILL BE CORRECTED, OR THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL FUNCTION WITH OTHER HARDWARE, OR WITHIN A SYSTEM. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FLUXWEAR OR AN FLUXWEAR AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION MAY NOT APPLY. NOTWITHSTANDING THE FOREGOING, FLUXWEAR WARRANTS TO THE ORIGINAL END USER PURCHASER THAT THE PRODUCT IS FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP FOR ONE (1) YEAR FROMTHE DATE OF PURCHASE.
If your local law in effect at the time of purchase requires a warranty period longer than one (1) year, this warranty shall be extended to the extent required by such law. Within the warranty period, FluxWear shall repair or replace at no charge to you any components of the Product that fail the limited warranty provided. You shall be responsible for any related transportation charges. Replacement products may be new or refurbished at our discretion. This limited warranty does not apply to (i) normal wear and tear, including scratches, tears, stains and dents; (ii) consumable parts included in the Product, such as batteries, unless product damage has occurred due to a defect in materials or workmanship; (iii) damage resulting from your failure to use the Product in accordance with the instructions accompanying the Product or available at the website; (iv) damage resulting from an accident, flood, fire, misuse, or abuse; (v) damage resulting from service performed, or damage resulting from tampering with or alterations to the Product, by anyone not authorized by FluxWear; or (vi) use of the Product with any application or software. FluxWear retains the exclusive right to repair or replace the Product, or offer a full refund, at its sole discretion. Such remedy shall be your sole and exclusive remedy for any breach of this limited warranty. Warranty repairs and replacements have a new warranty which is the longer of ninety (90) days or the balance of the original one (1) year warranty.
Limitation of Liability
IN NO EVENT WILL FLUXWEAR, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, PARTNERS, AND LICENSORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES OR ANY CONTENT ASSOCIATED WITH THE SERVICES, OR SUCH OTHER SITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. THESE EXCLUSIONS OR LIMITATIONS WILL APPLY REGARDLESS OF WHETHER OR NOT FLUXWEAR HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. TO THE EXTENT LIABILITY CANNOT BE EXCLUDED OR LIMITED AS SET FORTH ABOVE, IN NO EVENT SHALL FLUXWEAR BE LIABLE FOR ANY CLAIM, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, IN EXCESS OF $100. YOU AREVOLUNTARILY USING SHIFT AND UNDERSTAND THAT YOU ARE USING SHIFT ENTIRELY AT YOUR OWN RISK. YOU UNDERSTAND THAT FLUXWEAR DOES NOT WARRANT, PROMISE, OROTHERWISE GUARANTEE ANY ALLEVIATION OF PAIN, DECREASE IN STRESS, REDUCTION OF ANXIETY, OR OTHER IMPROVEMENT OF YOUR HEALTH CONDITION. YOU FURTHER ATTEST THAT YOU DO NOT HAVE ANY CONDITIONS, AND WILL NOT ENGAGE IN ANY ACTIVITIES, THAT WILL INCREASE YOUR LIKELIHOOD OF EXPERIENCING INJURIES WHILE USING SHIFT. I ACKNOWLEDGE THAT FLUXWEAR, INC. AND ANY INDIVIDUALS ASSOCIATED WITH SHIFT ARE NOT RESPONSIBLE FOR ANY ERRORS, OMISSIONS, INJURIES, OR OUTCOMES ARISING OUT OFTHE USE OF SHIFT AND ARE FURTHER NOT RESPONSIBLE FOR ANY LOSS OF INCOME OR REVENUE OR FOR ANY OF MY HEALTHCARE OR MEDICAL COSTS NOW OR IN THE FUTURE.
Accordingly, on behalf of yourself, your heirs, executors, administrators, assigns, or personal representatives, you knowingly and voluntarily enter into this waiver and release of liability and hereby waive any and all rights, claims or causes of action of any kind whatsoever arising out of your use of SHIFT and do hereby release and forever discharge FluxWear, Inc. and any and all individuals associated with FluxWear, including their affiliates, shareholders, officers, employees, founders, managers, members, agents, attorneys, staff, volunteers, heirs, representatives, successors, assigns, and contractors for any outcome occurring as a result of using SHIFT.
THE SERVICES ARE NOT A MEDICAL DEVICE AND YOU EXPRESSLY AGREE THAT THE SERVICES DO NOT INVOLVE THE PROVISION OF MEDICAL ADVICE BY FLUXWEAR. THE SERVICES ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE OR MEDICAL CONDITION. THE SERVICES, INCLUDING SHIFT, ALL INFORMATION, TEXT, PHOTOGRAPHS, IMAGES, ILLUSTRATIONS, GRAPHICS, AUDIO, VIDEO, AND AUDIO-VIDEO CLIPS, AND OTHER MATERIALS, WHETHER PROVIDED BY US OR THIRD PARTIES, IS NOT INTENDED TO BE AND SHOULD NOT BE USED IN PLACE OF (A) THE ADVICE OF YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, (B) A VISIT, CALL, OR CONSULTATION WITH YOUR PHYSICIAN OR OTHER MEDICALPROFESSIONALS, OR (C INFORMATION CONTAINED ON OR IN ANY PRODUCT PACKAGING OR LABEL. SHOULD YOU HAVE ANY HEALTH-RELATED QUESTIONS, PLEASE CALL OR SEE YOUR PHYSICIAN OR OTHER MEDICAL PROVIDER PROMPTLY. SHOULD YOU HAVE AN EMERGENCY, CALL YOUR PHYSICIAN OR 911 IMMEDIATELY. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OF ANY INFORMATION PRESENTED ON THE SERVICES, AND YOU SHOULD NOT USE THE SERVICES OR ANY INFORMATION PROVIDED IN THE SERVICES FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. THE TRANSMISSION AND RECEIPT OF SERVICES, IN WHOLE OR IN PART, OR COMMUNICATION VIA THE INTERNET, EMAIL, OR OTHER MEANS DOES NOT CONSTITUTE OR CREATE A DOCTOR-PATIENT, THERAPIST-PATIENT, OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND FLUXWEAR.
You should always consult a physician before using SHIFT if you have any medical condition. In particular, FluxWear recommends consulting with a physician before using SHIFT if:
· you have a heart pacemaker, defibrillator, or other implanted medical device.
· you have an implant in your head made from any magnetic or metallic materials.
· you are pregnant, nursing, are getting cancer treatment, have been diagnosed with depression, anxiety, or other neurological conditions.
· prior uses of SHIFT have made you feel worse, increased your pain, or increased your anxious feelings.
· you have had a stroke or bleeding of any type in the brain.
· you or any other individuals, including children, have reduced physical, sensory, or mental capabilities.
· if you have recently had or are planning to have any surgery or laser/cosmetic procedure.
· if you feel it is too small or applying too much pressure to your head.
FluxWear is not responsible for any health problems that may result from information you believe may be associated with your use of the Services. If you use SHIFT, you agree that you do so fully at your own risk. It is important to be sensitive to your body's responses. For example, if you feel unexpected, repeating, or long-term pain, or fatigue or discomfort allegedly due to your use of SHIFT, it is recommended that you consult a physician before continuing with such use. While FluxWear is in the form of a comfortable cadet cap, it is an advanced neuromodulation device and should be treated with a high degree of care. FluxWear is not responsible for your failure to do so.
· do not use SHIFT® device near medical monitoring equipment (e.g., heart monitors, heart tracing, oxygen saturation devices), which may not operate properly when SHIFT® is close to those devices and in use.
· do not use SHIFT® near operating MRI equipment as it may adversely affect SHIFT® operation through electromagnetic interference as well as magnetic force.
· do not use SHIFT® near products that may have strong magnetic fields, such as microwaves or strong audio speakers. The device may not work properly around these products.
· always store SHIFT® out of direct sunlight and not in excessive heat or cold. Excessive heat or cold can damage the magnetic field emitters or controller.
· avoid crumpling, crushing, mashing, or bending the crown of SHIFT®, which could result in damaging the field emitters or their alignment.
· keep the charging cable out of the reach of children because strangulation could result from entanglement.
· do not attempt to modify or repair SHIFT®, remove or access the magnetic field emitters, or remove portions of the controller housing. Sharp edges or electrical components may cause injury or electrical shock. Return the device to FluxWear® for examination if you believe the device is not working properly.
· do not connect SHIFT® to ahigh-power source.
· do not use or discontinue use if the device surface becomes uncomfortably hot. Do not place SHIFT on a source of intense heat, suchas a radiator.
· do not throw SHIFT® or portions of SHIFT® in a fire.
· do not use SHIFT® in an oxygen-enriched environment or near oxygen equipment (e.g. oxygen cylinder, oxygen generator or concentrate, etc.).
· dispose of the device and its battery in compliance with local regulations.
· keep all electrical appliances (including SHIFT®, charger, and power supply) away from liquid and water, including baths, showers, toilets, and sinks.
· do not submerge or drop SHIFT® in any liquid at any time, including while the device is in use, being charged, or powered off.
· do not use or charge SHIFT® if exposed to or submerged in liquid because exposure to liquids may cause irreparable damage to the electronic components.
· do not use soap, cleanser, bleach, or any other cleaning agent not recommended by FluxWear® that may potentially damage the device.
· do not use SHIFT® between users without proper cleaning and disinfection due to risk of contamination, such as contact with body fluids and expired gases, etc. Use FluxWear’s® recommended method of cleaning and disinfectant (non-bleach, non-chlorine alcohol wipes). The device is designed for a single user.
· use caution prior to using the device if storing or not using SHIFT® for long periods. Inspect the device and do not use the device if you see any signs of internal battery leaks.
· always keep the device away from pets to avoid device damage, or risk from exposed wire, small and sharp objects.
· when transporting SHIFT®, avoid compacting it, particularly inside luggage. Be prepared to submit SHIFT® to security inspection. SHIFT® may be passed through X-ray scanners.
The Services may provide links to other websites maintained by third parties. You acknowledge and agree that such links are provided for your convenience only and do not reflect any endorsement, affiliation, relationship, or sponsorship by FluxWear with respect to the provider of such linked site or the quality, reliability, or any other characteristic or feature of such linked site. You further acknowledge and agree that FluxWear is not responsible in any manner (including without limitation with respect to any loss or injury you may suffer) for any matter associated with the linked site, including without limitation, the content provided on or through any such linked site or your reliance thereon. In addition, you should be aware that your use of any third party site is subject to the terms and conditions applicable to that site, including the privacy policies (or lack thereof) of such site. If a third party links to the Services, it is not necessarily an indication of endorsement, affiliation, relationship, or sponsorship by or with FluxWear. FluxWear may not even be aware that a third party has linked to the Services. Any other content not owned by FluxWear is owned by its respective owner. You acknowledge and agree that such content is provided by its owner and does not reflect any endorsement, affiliation, relationship, or sponsorship by FluxWear with respect to the provider of such content. You further acknowledge and agree that FluxWear is not liable or responsible in any manner (including without limitation with respect to any loss or injury you may suffer) for any content provided by third parties including, without limitation, your reliance thereon. FLUXWEAR MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANYTHIRD PARTY CONTENT.
You agree to indemnify, hold harmless, and defend FluxWear, its subsidiaries, affiliates, officers, directors, employees, representatives, agents, partners, licensors, successors, and assigns, from and against any action, cause, claim, damage, debt, demand, or liability, including reasonable costs and attorneys’ fees, asserted by any person, arising out of or relating to (i) your use of the Services, including but not limited to your use of SHIFT and anyone using your account or Credentials; (ii) breach of this Agreement by you or anyone using your account or Credentials; (iii) any information used, stored, or transmitted in connection with your account or Credentials; (iv)breach of the rights of any third party, including but not limited to privacy, publicity, intellectual property, or other proprietary rights by you or anyone using your account or Credentials; or (v) violation of any law, regulation, or other legal requirement.
Notice for California Users
Under California Civil Code Section 1789.3, California users of the Services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at(800) 952-5210.
This Agreement shall continue in full force until terminated or cancelled pursuant to this Agreement. FluxWear shall have the right to terminate this Agreement (i) for any reason whatsoever by providing thirty (30) days’ notice to you; (ii) immediately for your material breach of this Agreement, other than non-payment of Fees; or (iii) for non-payment of Fees. Notwithstanding the foregoing, FluxWear reserves the right, in its sole discretion and without notice, at anytime and for any reason, to remove, modify, suspend, or disable access to all or any portion of the Services. You may terminate the Agreement at any time by notifying us that you no longer wish to use our Services by sending an email to email@example.com, when you return SHIFT to us, when your SHIFT is no longer used by yourself or any other individual, and when you cease using our site. This agreement is not terminated by your transferring possession or ownership of your SHIFT to any third party. You remain liable for the terms and conditions of this agreement as long as your SHIFT is being used and for obtaining the express agreement of the third party receiving possession or ownership of your SHIFT to the terms and conditions of this Agreement. Sections titled Precautions, Intellectual Property Rights, Data and Communications, Indemnification, Warranty Disclaimer, Limitation of Liability, Governing Law, Forum; Mandatory Binding Arbitration; Class Action Waiver, and payment obligations for Fees incurred prior to and during any notice period shall survive termination of this Agreement for any reason whatsoever.
Export Compliance and Use Restrictions
You will not directly or indirectly export or re-export the Services, or any technical information related thereto, to any destination or person prohibited or restricted by applicable law, including, without limitation, all applicable U.S. export control laws and regulations.
Governing Law; Forum; Mandatory Binding Arbitration, Class Action Waiver
Any action related to this Agreement, the Services, and your relationship with FluxWear shall be governed by, construed, and interpreted in accordance with the laws of the State of California without regard to its conflict of laws principles AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. You agree to resolve any disputes or claims arising out of or related to this Agreement or the Services through final and binding arbitration by a single arbitrator. This includes disputes arising out of or relating to interpretation or application of this “Mandatory Arbitration Provision” section, including its enforceability, revocability, or validity. Notwithstanding the foregoing, either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or violation of any intellectual property. Subject to the Mandatory Arbitration Provision, the parties irrevocably consent to bring any action to resolve or enforce claims arising under or relating to this Agreement in the federal or state courts in Orange County, California, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Except to the extent prohibited by applicable law, the parties agree that any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. This provision shall not apply to consumers in countries that require agreements to be governed by the local laws of the consumer's country. The English language shall govern all documents, notices, and interpretations of these Agreement. You also agree to waive any right to assert any claims against FluxWear as a representative or member in any class or representative action, except where such waiver is prohibited by law or deemed by a court of law to be against public policy.
Modification of the Terms and Services
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