last updated: 1 June 2019
Your experience is not only from Alcocat Products, but also from all the Services you interact with, including the App, Sites, social channels and support. We want to make sure that navigating all of these aspects of your experience is as simple as possible - so that you can focus on what matters most - get the most out of your Alcocat alcometer.
1. CHANGES TO THESE TERMS
We may make changes to these Terms from time to time. If we make changes, we will post the amended Terms to our Services and update the “Last Updated” date above. We may also attempt to notify you by providing notice through our Services. Unless we say otherwise in our notice, the amended Terms will be effective immediately and your continued access to and use of our Services after we provide notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop accessing and using our Services. Every time you order Products from Alcocat, the Terms in force at that time will apply to such purchases.
You must be at least 18 years old (or the age of legal majority in your country of residence in order to access and use our Services, or to purchase any Products. If you are under 18 years of age (or the age of legal majority where you live), you may only access or use our Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in connection with our Services. If you are accessing or using our Services on behalf of another person, you represent that you are authorized to accept these Terms on that person’s behalf and that the person agrees to be responsible to us if you or the other person violates these Terms. The Services are for personal use only. You may not use the Services if you have previously been suspended or removed from the Services. Certain Services may not be available in all jurisdictions, and we reserve the right to impose additional eligibility requirements.Any attempt to violate these Terms may result in the immediate termination of your access to the Alcocat Services.
4. TERMS OF SALE
Certain Products may be provided for a fee. By placing an order, you agree to pay the amount displayed on your order checkout page. You shall pay all applicable amounts in connection with the Products purchased by you in accordance with the Terms of Sale.
5. OWNERSHIP AND PROPRIETARY RIGHTS
6. USER-PROHIBITED ACTIVITIES
You agree that you will abide by these Terms, and will not:
* sell, copy, modify, distribute, display, transmit, publish, create derivative works from, or otherwise make unauthorized use of Alcocat content, materials or Services.
* interfere with, damage, impair, change or disable the operation of the Alcocat Services or Products.
* circumvent, disable or otherwise interfere with any security-related features of the Alcocat Products and Services, including through breaching any Alcocat security or authentication measures.
* use, display or mirror any trademark, logo, or other Alcocat materials without our express written consent, including but not limited to the Alcocat name, layout and design of any page of the website.
* access non-public areas of Alcocat Services, including internal IT systems, hardware, code, firmware and security protocols.
* conduct vulnerability testing of any Alcocat systems.
* use any robot, spider, scraper, or other automated means to access Alcocat Services.
* develop or use any third-party applications that interact with Products and Services without our prior written consent, including any scripts designed to scrape or extract data from our Products and Services.
* reverse-engineer, disassemble or otherwise attempt to discover the source code of any software and / or firmware that Alcocat provides to you or any other part of Alcocat Services and Products.
* use Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
violate any applicable law, contract, intellectual property or other third-party right or commit a tort.
Alcocat will engage in fraud prevention to protect the rights of legitimate customers and so as not to profiteer from fraudulent transactions. Alcocat reserves the right to monitor transactions for signs of fraud, such as: number of units ordered, time of order, country of order and information from the payment gateway. If a transaction is flagged for potentially being fraudulent, Alcocat reserves the right to cancel the transaction, refund any monies received and potentially bar the credit card and customer from future purchases.
Any product warranties are set forth in the Terms of Sale.Subject to any legal rights you may have under any law that applies to you that cannot be excluded, restricted or modified by agreement (“your consumer rights”), Alcocat Services are provided on an “as is” and “as available”, "with all faults” basis and without warranties or representations of any kind, either express or implied. Alcocat and its suppliers disclaim warranties of any kind, including but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights with respect to the Services. Your use of Alcocat Services and Alcocat content is at your sole risk, including when you download, or otherwise obtain information, materials, or data through Alcocat Services. You are solely responsible for any damage to your property or loss of data that results from the download or use of such material.
To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless Alcocat, its contractors and their respective officers, directors, employees and agents (individually and collectively, the “Alcocat Parties”), from and against any claims, disputes, liabilities, damages, losses and expenses, including, without limitation, reasonable attorneys’ fees, arising out of or in any way connected with; (1) your use or misuse of our Services; (2) your User Content; (3) your breach of any warranties made by you hereunder or your violation of any other provision of these Terms. Alcocat reserves the right, at your expense, to assume the exclusive defense and control of any third-party claim that is subject to indemnification by you, and in which event you agree to cooperate with us in asserting any available defenses.
11. LIMITATION OF LIABILITY AND DAMAGES
Alcocat and the other Alcocat parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, warranty, or otherwise—for any indirect, consequential, incidental, or special damages or lost profits, even if Alcocat or the other Alcocat parties have been advised of the possibility of such damages.
To the extent our liability can be limited under applicable law to resupplying a defective Service or Product, our liability is so limited. The total liability of Alcocat and the other Alcocat parties for any claim arising out of or relating to these terms or our Services, regardless of the form of the action, is limited to the greater of the amount paid by you to access or use our services in the previous 12 months, or $100.
The limitations set forth in this Section will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Alcocat or the other Alcocat parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
The foregoing in this Section 11 shall only apply to the extent permitted by applicable law, including your consumer rights described in Section 9.
The limitations of liability and damages set forth above are fundamental elements of the basis of the relationship between Alcocat and you.
12. NO MEDICAL ADVICE
ALCOCAT DOES NOT PROVIDE MEDICAL ADVICE AND ALCOCAT PRODUCTS AND SERVICES ARE NOT INTENDED AS A SUBSTITUTE FOR QUALIFIED MEDICAL ADVICE OR TREATMENT. IN THE INSTANCE THAT YOU ARE SEEKING MEDICAL ADVICE, TO DIAGNOSE A HEALTH CONDITION, THERAPEUTIC BENEFITS OR ARE UNSURE OF HOW ALCOCAT PRODUCTS OR SERVICES WILL INTERACT WITH YOUR HEALTH, PLEASE CONSULT WITH A MEDICAL PROFESSIONAL BEFORE USING OR RELYING ON ANY INFORMATION PROVIDED BY THE ALCOCAT PRODUCTS AND SERVICES. INFORMATION PROVIDED TO YOU VIA ALCOCAT PRODUCTS AND SERVICES IS BASED UPON PREDICTIVE INDICATORS, AND A USER MUST DRAW THEIR OWN CONCLUSIONS – IN CONSULTATION WITH A MEDICAL PROFESSIONAL – ABOUT THE VALUE OF THE INFORMATION PROVIDED BY THE PRODUCTS AND SERVICES.
13. USER CONTENT
You may post and upload your own content (“User Content”) to or via the Alcocat Services. By making your User Content available on or through Alcocat Services, you grant Alcocat royalty-free, irrevocable, transferable right and license to use such content without limitation, to copy, modify, delete in its entirety, adapt, publish, sell and distribute, in connection with operating and providing Alcocat Services.You may be exposed to content from a variety of sources, including third-party sources, when you access Alcocat Services. Alcocat is not responsible for the accuracy, integrity, quality, legality, safety, or intellectual property rights of, or relating to, such third-party content. Alcocat does not represent or imply that it endorses any such third-party content.
14. U.S. RESIDENTS - COPYRIGHT COMPLAINTS
15. DISPUTE RESOLUTION; BINDING ARBITRATION
IF YOU ARE A U.S. OR EUROPEAN UNION RESIDENT, OR ARE LOCATED IN A JURISDICTION IN WHICH THIS SECTION 15 IS ENFORCEABLE, PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT MAY REQUIRE YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH ALCOCAT AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
Agreement to Arbitrate Disputes. Any claim, dispute or controversy of any kind, regardless of the type of claim or legal theory or remedy (“Claim”) by either you or us against the other arising from, relating to or in any way concerning the Terms or the Services will, at the demand of either party, be resolved by confidential binding arbitration. This agreement to arbitrate also includes: (i) Claims relating to the enforceability or interpretation of any of these arbitration provisions; (ii) Claims by you, and also Claims made on your behalf or connected with you, such as an employee, representative, agent, predecessor, successor, heir, assignee, or trustee in bankruptcy; (iii) Claims that relate directly to us, and/or to our parent, affiliates, successors, assignees, employees, and agents; and (iv) Claims asserted as part of a class action, private attorney general or other representative action, it being expressly understood and agreed to that the arbitration of such claims must proceed on an individual (non-class and non-representative) basis and the arbitrator may award relief only on an individual (non-class and non-representative) basis. YOU AND WE AGREE THAT NO CLASS ACTION, CONSOLIDATED ACTION, PRIVATE ATTORNEY GENERAL OR OTHER REPRESENTATIVE CLAIMS MAY BE PURSUED IN ARBITRATION, NOR MAY SUCH ACTIONS BE PURSUED IN COURT. BY ACCEPTING THESE TERMS, YOU AGREE TO WAIVE THE RIGHT TO INITIATE OR PARTICIPATE IN A CLASS ACTION, REPRESENTATIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR CONSOLIDATED ARBITRATION IN ANY MATTER ENCOMPASSED BY THIS ARBITRATION PROVISION.
Notice of Dispute. The party seeking arbitration must first notify the other party of the dispute in writing at least 60 days in advance of initiating arbitration. Notice to Alcocat should be sent to account. The notice must include your name, address, and contact information, the facts giving rise to the dispute, and the relief requested. You and we will use reasonable efforts to resolve any dispute through informal negotiation within 60 days from the date the notice of dispute is sent. After 60 days, you or we may commence arbitration.
Administration of Arbitration. If any dispute is not resolved by informal negotiation, any claim, dispute, or controversy will be, at the demand of either party, conducted exclusively by binding arbitration governed by the Federal Arbitration Act (“FAA”), and not state law. You and Alcocat agree that any arbitration will occur either in (i) Alameda County, California, (ii) telephonically, or (iii) in the county in which you reside. YOU ARE GIVING UP THE RIGHT TO LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) ALL DISPUTES IN COURT BEFORE A JUDGE OR JURY. Instead, all disputes will be resolved on an individual basis before a single, neutral arbitrator and the proceeding will be confidential. The arbitrator will be either a lawyer admitted to practice law in his or her jurisdiction and with at least ten years’ experience or a retired or former judge selected in accordance with the rules of the AAA. The arbitrator is bound by these terms, and the arbitration will be governed by the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes of the AAA, as modified by these Terms (the “Arbitration Rules”). For more information, see adr.org or call 1-800-778-7879. Except with respect to any claims or counterclaims seeking less than $25,000, the arbitrator will issue a reasoned, written decision sufficient to explain the essential findings and conclusions on which the award is based. All arbitration proceedings will be conducted in English, and the United States FAA will govern the interpretation, enforcement, and proceedings pursuant to the binding arbitration clause in these Terms. The award will be confidential and only disclosed as is necessary to obtain judgment or as otherwise required by law. You and we further agree that a judgment may be entered upon the award by any court having jurisdiction. The arbitration award will determine the rights and obligations between the named parties only, and only in respect to the claims in arbitration, and will not have any bearing on the rights and obligations of any other dispute.
Costs. The party initiating the arbitration will pay the initial filing fee. If you file the arbitration and an award is rendered in your favor, we will reimburse your filing fee. We will pay the fees and costs for the first day of any hearing. All other fees and costs will be allocated in accordance with the arbitration rules. However, we will advance or reimburse filing and other fees if the arbitrator rules that you cannot afford to pay them or if you ask us and we determine there is a good reason for doing so. Each party will bear the expense of their respective attorneys, experts, and witnesses and other expenses, regardless of who prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines.
Right to Resort to Provisional Remedies Preserved. Nothing herein will be deemed to limit or constrain our right to resort to self-help remedies or to comply with legal process, or to obtain provisional remedies such as injunctive relief, attachment, or garnishment by a court having appropriate jurisdiction; provided, however, that you or we may elect to arbitrate any dispute related to such provisional remedies.
Conflicting Terms. In the event of a conflict between the Arbitration Rules and this Section 16, this Section 15 will govern. If any portion of this Section 15 is deemed invalid or unenforceable, it will not invalidate the other provisions of this Section 15; provided, however, that (a) if the prohibition on class-wide arbitration is deemed invalid, then this entire Section 15 will be null and void; and (b) if the prohibition on arbitration of representative claims brought in a private attorney general capacity is deemed invalid, then this Section 15 will be null and void as to such claims only. This Section 15 will survive the termination or cancellation of these Terms. In the event of a conflict between this Section 15 and any other applicable arbitration provision, this Section 15 will control.
WAIVER OF JURY TRIAL. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, YOU AND WE AGREE THAT THERE WILL NOT BE A JURY TRIAL. YOU AND WE UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THESE TERMS OR THE SERVICES. IN THE EVENT OF LITIGATION, THIS PARAGRAPH MAY BE FILED TO SHOW A WRITTEN CONSENT TO A TRIAL BY THE COURT. This paragraph in no way invalidates the agreement to arbitrate disputes.
Additional Terms for iOS Users
The following terms apply if you are accessing or using our App on an Apple Inc. (“Apple”) branded mobile device:
1. Acknowledgement. The Terms are concluded between Alcocat and you only, and not with Apple, and, as between Apple and us, we are solely responsible for the App and the content thereof.
2. Scope of License. The license granted to the you for the App under the Terms is limited to a non-transferable license to use the App on any Apple-branded products that you own or control and as permitted by the Apple Usage Rules set forth in the App Store Terms of Service, except that such App may be accessed, acquired, and used by other accounts associated with the purchaser via “Family Sharing” or volume purchasing.
3. Maintenance and Support. Alcocat is not obligated to provide any support or maintenance services for the App, provided that we are solely responsible for such services to the extent required under applicable law. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
4. Warranty. To the effect not effectively disclaimed under Section 9 of the Terms, we are solely responsible for any warranties, whether express or implied by law. In the event of any failure of the App to conform to any applicable warranty not effectively disclaimed under Section 9, you may notify Apple, and Apple will refund the purchase price (if any) for the App; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our sole responsibility.
5. Product Claims. You and Alcocat acknowledge and agree that as between Apple and Alcocat, Alcocat, not Apple, is responsible for addressing any of your claims or any third party claims relating to the App or your possession and/or use of the App, including, but not limited to (a) product liability claims, (b) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation.
6. Intellectual Property Rights. In the event of any third-party claim that the App or your possession and use of that App infringes any third party’s intellectual property rights, we, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
7. Legal Compliance. By downloading and installing the App, you represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties. You will comply with all applicable laws, rules and regulations, including but not limited to U.S. export control laws.
8. Commercial Items. If acquired by any agency of the United States government, such agency acknowledges that: (a) the App constitutes "commercial computer software" or "commercial computer software documentation" for purposes of 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as applicable and (b) such agency's rights are limited to those specifically granted under these Terms.
9. Third-Party Beneficiaries. Apple and its subsidiaries are third party beneficiaries of these Terms and will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
16. GOVERNING LAW AND VENUE
U.S. Customers. These Terms are governed by the laws of the State of California without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the state and federal courts in or for Los Angeles County, California and the United States, respectively, sited in Los Angeles County, California, for the purpose of litigating all such claims or disputes, unless such claim or dispute is required to be arbitrated as set forth in this Section 16.
Non-U.S. Customers. These Terms are governed by the laws of Barcelona, Spain, without regard to conflict-of-law provisions. To the extent that you reside in a country that will not apply the laws of Barcelona, Spain, then your country's laws will apply to such disputes related to the Products or these Terms. Any Dispute between the parties that is not subject to arbitration will be resolved exclusively in the courts located in Barcelona, Spain.
17. CONTACTING ALCOCAT
If you have any questions, complaints or claims with respect to the App, please contact us.