These terms and conditions of sale ("Terms") govern the purchase of any products ("Products") from FlowMotion Technologies AS, FlowMotion Technologies US Inc. or any of their respective subsidiaries ("FlowMotion" or "we") unless where there is a separate executed written agreement with customer ("Customer" or "you") that specifically supersedes the Terms.
1. PRODUCT ORDERS
Customers that want to purchase Products may do so by clicking on the "order now" (or similar) button on the FlowMotion website and follow the instructions. Once an order is placed FlowMotion will confirm it by sending an order confirmation ("Order Confirmation") to Customer's email address. FlowMotion is not bound to sell any Product until an Order Confirmation has issued and payment has been processed. The Order Confirmation will contain information regarding the ordered quantity, their price, and the estimated shipment date.
Our acceptance of your order is expressly conditioned upon your unconditional acceptance of these Terms. We do not accept any changes to or rejections of the Terms that you communicate to us in any form, any attempts to change or reject the Terms will be null and of no effect.
2. CANCELATION OF PRE-ORDERS
You may cancel the pre-order until you receive notification of shipment from FlowMotion. FlowMotion will notify you at least 14 days prior to the shipment date. FlowMotion will strive to reimburse your complete payment for the pre-order within six (6) weeks after your cancellation. Please note, however, that the funds raised with your pre-order may be partially invested in product development. Delivery is contingent on sufficient funds to complete the development and manufacturing of the products. Hence, FlowMotion cannot guarantee that you will receive a full refund in all cases as the funds raised by your pre-order may be lost, either fully or partially.
FlowMotion may cancel your order before the shipment date at FlowMotion's own discretion. FlowMotion will reimburse all your payments in the event of such cancellation.
3. DESCRIPTION OF THE PRODUCT
FlowMotion strives to provide a complete and accurate description of the products offered. Nevertheless, FlowMotion cannot guarantee a complete resemblance between the illustration material, such as pictures, videos and written descriptions, and the actual products.
FlowMotion also reserves the right to change and modify the product specifications, such as storage capacity, battery capacity, weight, material selection, form, color and other physical dimensions and technical specifications in the period up to the shipping date. An updated and final product specification will be available at least fourteen (14) days prior to the shipping date.
4. RETURN OF DEFECTIVE AND NONCONFORMING PRODUCTS
FlowMotion warrants you a product without defects in conformance with FlowMotion's strict quality policy for a period of one (1) year after you receive the products (the "Warranty Period"), or for the period prescribed by mandatory law in your country, whichever is longer. If a battery is returned within the Warranty Period (calculated from the date of sale to the consumer or end user) for failure to perform due to defects in materials or workmanship, you are entitled to a new replacement product of the same type at no charge (subject to any applicable installation
charges, taxes and government required fees). This is your sole and exclusive remedy.
You are responsible for inspecting the products upon delivery. If the products are defective or nonconforming, you shall notify FlowMotion without undue delay. When filing a complaint, please indicate the transaction number ("transaction number") of your pre-order found on the pre-order confirmation email received at time of ordering, contact information (name and address) and reason for return.
Proper use of the product is described in the warranty disclosed with the product. FlowMotion disclaims any liability for non-conforming products due to improper use of the products. Such improper use includes but is not limited to damage caused by the products being dropped on solid objects such as tables or floors, or damage caused by exposing the products for other temperatures or humidity conditions than recommended in the warranty. Improper use also includes modifications, reengineering, copying and other changes to the software in breach of FlowMotion's intellectual property rights in accordance with section 10.
In the event of a return or repair in accordance with these Terms, the product will be repaired or replaced by FlowMotion and according to our designated return process. All costs, including shipment costs, are covered by FlowMotion if the process is followed correctly. To initiate such a process, you must contact FlowMotion customer support at [email protected]
5. SHIPMENT AND DELIVERY
Customer is responsible for all freight, packing, insurance and shipping-related costs that are noted or referenced on Customer's screen before a purchase is made. Once the Product is sent to the carrier, ownership of the Product and the risk of that Product's loss passes to Customer. FlowMotion may provide a single or multiple shipping methods and carriers for Product delivery at its discretion.
Customer understands that all estimated and scheduled shipment dates are estimates only. FlowMotion will make reasonable efforts to meet the scheduled shipment dates, but in no event will we be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery, nor will the carrier be deemed our agent. If Customer purchases multiple Products, we may fulfill the order in installments and charge Customer separately for each installment. We have the right to allocate our available inventory of the Products among other purchasers in such manner as we see fit. If we're not able to charge your chosen payment method or you otherwise fail to pay for your purchase, we have the right to delay or suspend shipment of Products.
6. PRODUCT PRICE AND TAX
The prices for the Products will be as specified during the online order process and the order confirmation you will receive. Prices are in US dollars with separate subtotal for all applicable sales taxes that you agree to pay by ordering the Product. Customer is responsible also for any other taxes applicable to the purchase, including import taxes and fees in the country where Customer asks FlowMotion to ship the Products.
7. ASSUMPTION OF RISK
You agree to comply with all applicable local, state and national laws in connection with your use of the Product. You understand and agree that the Product is not made or intended for use in any application or hazardous environment that requires fail-safe performance, where the failure or inaccuracy of the Product or its use might result in or cause death, personal injury, collision, or significant environmental damages ("High-Risk Activities"). You agree to use precautions when using your Product.
FlowMotion accepts no risk, obligation or liability whatsoever to you or any third party for any of the following ("Disclaimed Activities") performed or caused, by act or omission, by you or a third party with access to your Product:
- use of the Product contrary to FlowMotion's published information, specifications and instructions, including, but not limited to, storage requirements and environmental conditions or ranges for temperature or humidity, leaving the Product in direct sunlight for long periods, use of the Product for High-Risk Activities, use of the Product in combination with any third party device not provided or recommended by FlowMotion, and affixing anything to the Product;
- repairs, modifications, adjustments or repairs to the Product made by a party not authorized by FlowMotion;
- damage from any external cause, including, but not limited to, sand, dirt, improper usage of any electrical source, battery leakage, or local power surges;
- any damage to property or persons caused by your Product that is not caused by material defect for which FlowMotion is held responsible, including your failure to properly operate or understand the functionalities of the Product;
- improper use such as allowing the Product to land on unstable surfaces or dangerous terrain, using the Product in inclement weather or low light, failure to maintain line-of-sight with the Product when using it, attempting to charge the Product with chargers not provided by FlowMotion;
- failure to determine the suitability of the Product for your intended use;
- failing to make sure that any other person who uses the Product also complies with these terms and any other guidance we provide you, whether this guidance is included in writing with the Product or made available on our website;
- any continued use of the Product after you detect any material defect, including erratic responses to user input;
- any other use of the Product that must reasonably be considered improper.
8. LIMITATION OF LIABILITY
ALL REMEDIES ARE STRICTLY SUBJECT TO OUR WARRANTY PROGRAM. EXCEPT FOR REMEDIES PROVIDED PURSUAN TO OUR WARRRANTY PROGRAM, THE PRODUCTS ARE PROVIDED ON AN "AS IS" BASIS AND WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTY FOR SPECIFIC PURPOSE. YOUR USE OF THE PRODUCTS IS AT YOUR OWN RISK, AND IN NO EVENT WILL FLOWMOTION BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, USE, PROFITS, DATA, OR GOODWILL) OR COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS OR THE PURCHASE, SALE, USE, OPERATION OR PERFORMANCE OF THE PRODUCTS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT FLOWMOTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. YOU AND FLOWMOTION HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL FLOWMOTION'S LIABILITY TO YOU ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE ACTUAL AMOUNT PAID TO FLOWMOTION BY YOU FOR THE PRODUCT THAT GIVES RISE TO THE CLAIM.
Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
YOU AGREE TO INDEMNIFY AND HOLD FLOWMOTION, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, CONSULTANTS AND ADVISORS, HARMLESS FROM ANY AND ALL CLAIMS, INCLUDING BUT NOT LIMITED DAMAGES, LEGAL FEES, COST AND EXPENSES, FROM THIRD PARTIES ARISING IN CONNECTION WITH THE PRE-ORDER.
10. INTELLECTUAL PROPERTY RIGHTS
FlowMotion has the exclusive and worldwide right to all intellectual property rights related to the products included in the pre-order, whether patentable or not and whether registered or not. This includes but is not limited to the construction, methods, concepts, design, source code, software logs, interface design and trademarks.
Any software installed in the Products (the "Software") is licensed and not sold to FlowMotion's customers. You may only use this software for its normal, intended use with the Products and in line with these Terms. When we say "sell" and "purchase" in these Terms, we mean "sell" and "purchase" only with respect to the non-software elements of the Product. These Terms apply whether or not they are included with the Products sold hereunder.
Subject to your compliance with these Terms, FlowMotion grants you a limited, non-exclusive, non-transferable, non-sublicensable license to use the Software as part of your use of the Product for your own personal, non-commercial purposes and for no other purposes. You may not (i) copy, modify or create derivative works based on the Software; (ii) distribute, transfer, sublicense, lease, lend or rent the Software to any third party; (iii) reverse engineer, decompile or disassemble the Software; or (iv) make the functionality of the Software available to multiple users through any means. FlowMotion reserves all rights in and to the Software not expressly granted to you under these Terms. All Software is protected by U.S. and international copyright law and treaties.
All the Software and any related documentation are "commercial items" as that term is defined in FAR 2.101, consisting of "commercial computer software" and "commercial computer software documentation," respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. To the extent that the Products are being acquired by or on behalf of the U.S. Government than, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government's rights in the software and any related documentation will be only those specified in these Terms.
11. DISPUTE RESOLUTION
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
For any dispute, claim or controversy with FlowMotion arising out of or relating to these Terms or the use of the Product (collectively, "Dispute"), you agree to first contact us and attempt to resolve the Dispute with us informally. In the unlikely event that FlowMotion has not been able to resolve a Dispute with you after thirty (30) days, you and FlowMotion agree that it shall be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an "IP Protection Action"); and (iii) you retain the right to litigate any Dispute other than an IP Protection Action by providing FlowMotion with written notice of your desire to do so by email or regular mail within thirty days following the date you first accept these Terms (such notice, an "Arbitration Opt-out Notice"). If you don't provide FlowMotion with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide FlowMotion with an Arbitration Opt-out Notice, will be exclusively in the state and federal courts located in California and each of the parties hereto waives any objection to the exlcusive jurisdiction and venue in such courts. Unless you timely provide FlowMotion with an Arbitration Opt-out Notice, you acknowledge and agree that you and FlowMotion are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and FlowMotion otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at https://www.adr.org/aaa/faces/rules/searchrules or by calling the AAA at 1-800-778-7879). The U.S. Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at https://www.adr.org/aaa/faces/services/fileacase/forms). The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA's roster of arbitrators. If the parties are unable to agree upon an arbitrator within 7 days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Unless you and FlowMotion agree otherwise, the arbitration will be conducted in the county where you reside. If your claim does not exceed 10,000 U.S. dollars, then the arbitration will be conducted solely on the basis of the documents that you and FlowMotion submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds 10,000 U.S. dollars, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
If FlowMotion changes this "Dispute Resolution" section after the date on which you placed your
order for a Product, you may reject any such change by sending us written notice within 30 days
of the date such change became effective. By rejecting any change, you are agreeing that you
will arbitrate any Dispute between you and FlowMotion in FST accordance with the provisions of
this Dispute resolution section as of the date you first accepted these Terms (or accepted any
subsequent changes to these Terms).
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award of damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorney's fees and expenses, to the extent provided under applicable law. FlowMotion will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys' fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed 75,000 U.S. dollars, FlowMotion will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
If FlowMotion changes this "Dispute Resolution" section after the date on which you placed your order for a Product, you may reject any such change by sending us written notice within thirty (30) days of the date such change became effective. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and FlowMotion in FST accordance with the provisions of this Dispute resolution section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
12. GENERAL TERMS
These Terms constitute the entire and exclusive understanding and agreement between you and FlowMotion regarding the purchase of a Product, and these Terms supersede and replace any and all prior oral or written understandings or agreements between us regarding such a purchase.
If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or
unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without our prior written consent which consent may be withheld in our sole discretion. Any attempt by you to assign or transfer these Terms, without such consent, will be null and void. We may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by us under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to our website. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
FlowMotion's failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of FlowMotion. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
These Terms were last updated
April 11, 2017