These hardware terms (“HW Terms”), together with the overhead agreement which refers to these supplemental terms as being applicable between the Parties (the “Mindbody Terms of Service”), govern your purchase or use of the heart rate monitors and receivers (“FMX Hardware”) as well as payment enabling and other similar products or hardware, but excluding the Poynt Terminal, (“Payments Hardware”) that Mindbody sells you along with any user guides or documentation related thereto (“HW Documentation”), and any ancillary services, support, firmware, or software provided by Mindbody in connection with the FMX Hardware and/or the Payments Hardware (the “HW-Related Services”). Capitalized terms used in these HW Terms but not otherwise defined herein will have the meaning given to them in the Mindbody Terms of Service.
Upon successfully ordering FMX Hardware and/or Payments Hardware from Mindbody, you will be issued an order confirmation indicating acceptance of your order (“Order Confirmation”). Mindbody will use commercially reasonable efforts to ship the FMX Hardware and/or Payments Hardware on or about the date specified in the Order Confirmation, subject to availability. Mindbody will not be liable for any damage or penalty arising from delay in delivery, installation, or activation or from failure to give notice of any such delay. All shipments are FCA (Incoterms® 2010) shipping point, unless otherwise specified, and you will bear risk of loss or damage to the FMX Hardware and/or Payments Hardware following shipment. Title to the FMX Hardware and/or Payments Hardware shall pass to you upon final payment for such hardware.
2. Limited Right for Returns and Refunds.
Except for custom FMX Hardware orders, if you are not satisfied with the FMX Hardware that you purchased from Mindbody, you may contact us for a return material authorization (“RMA”) within 180 calendar days after receiving your FMX Hardware from Mindbody. If you are not satisfied with the Payments Hardware that you purchased from Mindbody, you may contact us for an RMA within 30 calendar days after receiving your Payments Hardware from Mindbody. The FMX Hardware and/or Payments Hardware must be returned to Mindbody within 10 calendar days of the issuance of the RMA. If you complete the satisfactory return to Mindbody, you will be refunded your purchase price paid to Mindbody, minus a restocking fee of 25% of the purchase price. Mindbody will deduct the restocking fee from any refund Mindbody makes to you. This Section 2 describes Mindbody’s sole obligation, and the exclusive remedy, if the FMX Hardware and/or Payments Hardware does not perform as anticipated or operate in accordance with the HW Documentation. All custom FMX Hardware orders are final and ineligible for return or refund. Returns and refunds from Mindbody only apply to the original purchaser of the FMX Hardware and/or Payments Hardware directly from Mindbody.
3. HW-Related Services.
The HW-Related Services, which are not “Services” for the purpose of the Agreement, do not include any software, apps or services not provided by Mindbody or third party components.
The FMX Hardware, Payments Hardware or HW-Related Services may include certain third party components that are subject to additional or alternative licenses, terms and/or restrictions as set out in the HW Documentation. Additionally, certain portions of the software within the FMX Hardware and/or Payments Hardware may include code which is subject to “open source” or “free software” licenses (“OSS”), a list of which is available in the HW Documentation, as necessary. The OSS is not subject to the foregoing HW Terms or Mindbody Terms of Service, except for the disclaimers, limitations of liability and this paragraph. Instead, each item of OSS is licensed under the terms of the license that accompanies such OSS. Nothing in these HW Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable license for the OSS, including any rights to copy, modify, or distribute the OSS under the applicable license. If Mindbody makes modifications to such OSS and if the applicable OSS license requires that such modifications be made available and Mindbody does not already publish such modifications via the applicable OSS community, then Mindbody will make its modifications available after your reasonable request.
4. Support Services.
As part of the HW-Related Services you will have access to Mindbody’s standard support services described at https://support.mindbodyonline.com/s/article/214494348-Standard-Support-Services (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time. For an additional fee, you may purchase Professional Services as described at https://www.mindbodyonline.com/business/professional-services (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time.
You agree to the payment terms stated on an Order Form or otherwise specified by Mindbody. Except as specified above in Section 2 or an Order Confirmation, all payment obligations are non-cancelable and all fees paid are non-refundable.
6. Medical and Other Disclaimers and Acknowledgements.
Use or reliance on the FMX Hardware and/or Payments Hardware and/or HW-Related Services is solely at your and/or the End User’s risk. The FMX Hardware and HW-Related Services are not a medical or scientific device or service, and are not as accurate as such medical or scientific devices or services. The FMX Hardware is designed to provide helpful and accurate information for normal healthy individuals, but Mindbody makes no endorsement, representation, or warranty of any kind regarding the FMX Hardware or HW-Related Services other than the limited remedies and refunds expressly provided in Section 2. Mindbody is not responsible for the accuracy, reliability, availability, effectiveness, or correct use of information provided in connection with the FMX Hardware or HW-Related Services. Use of the FMX Hardware should not replace good judgment and common sense. Please read and comply with all safety notices that accompany the FMX Hardware and ensure that any End User of the FMX Hardware agrees to and understands the disclaimers, acknowledgments, and limitations described in these HW Terms and the HW Documentation.
The FMX Hardware is not intended to diagnose, treat, cure, or prevent any disease. If you or any End User of the FMX Hardware has a medical or heart condition, consult a doctor before using. If you or any End User of the FMX Hardware experiences a medical emergency, stop using the FMX Hardware and consult with medical or emergency service professional(s).
Prolonged contact with wearable devices may contribute to skin irritation or allergies in some End Users. To reduce irritation: (a) keep it clean, (b) keep it dry, (c) do not wear it too tight, and (d) give your skin relief by removing the band after extended wear.
If you or any End User notices any skin irritation, soreness, tingling, numbness, burning, or stiffness while or after wearing the FMX Hardware, remove it and discontinue use. If any symptoms persist longer than 2-3 days after removing the device, consult a doctor or other medical professional. Also, have End User consult a doctor prior to use of the FMX Hardware if they (a) have a medical or heart condition, (b) are taking any photosensitive medicine, (c) have epilepsy or are sensitive to flashing lights, (d) have reduced circulation or bruise easily, or (e) have tendonitis, carpal tunnel syndrome, or other musculoskeletal disorders.
EXCEPT AS EXPRESSLY PROVIDED OTHERWISE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MINDBODY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE FMX HARDWARE, PAYMENTS HARDWARE, HW-RELATED SERVICES, AND/OR RELATED HW DOCUMENTATION. MINDBODY DOES NOT WARRANT THAT THE FMX HARDWARE, PAYMENTS HARDWARE, AND/OR HW-RELATED SERVICES WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE FMX HARDWARE, PAYMENTS HARDWARE, AND/OR HW-RELATED SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE HW- RELATED SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. THE FMX HARDWARE, PAYMENTS HARDWARE, AND/OR HW-RELATED SERVICES ARE PROVIDED ON AN “AS IS” WITH ALL FAULTS AND “AS AVAILABLE” BASIS AND SOLELY FOR USE IN ACCORDANCE WITH THIS AGREEMENT.
7. End Users and Third Parties.
AS BETWEEN YOU AND MINDBODY AND TO EXTENT PERMITTED BY LAW, YOU ARE SOLELY RESPONSIBLE FOR ANY ACCESS, USE, RELIANCE, OR OTHER ACTIVITY, TRANSFER OR DISPOSITION OF THE FMX HARDWARE AND/OR PAYMENTS HARDWARE AFTER YOU RECEIVE IT FROM MINDBODY, INCLUDING IN CONNECTION WITH YOUR END USERS AND LOCAL OR OTHER RETAIL OR CONSUMER LAWS. You acknowledge and agree the pricing for the FMX Hardware, Payments Hardware, and/or and HW-Related Services to you from Mindbody were based on this allocation of risk.
You are solely responsible for ensuring that all End Users and other third parties accessing, using, or otherwise interacting with the FMX Hardware, Payments Hardware, and/or HW-Related Services are made aware of, understand, agree to, and comply with Section 6 and understand that Mindbody provides no warranties or assumes any liability to them.
In addition to the other indemnities in Section 10 of the Mindbody Terms of Service, you agree to indemnify, defend, and hold harmless the Mindbody Parties from and against any and all third party claims alleged or asserted against any of them, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys' fees and costs) arising from or relating to any access, use, reliance, or other activity transfer or disposition pertaining to the FMX Hardware and/or Payments Hardware by you, an Affiliate, End User, or other third party after Mindbody provides the FMX Hardware and/or Payments Hardware to you. Upon your receipt of the FMX Hardware and/or Payments Hardware, you assume all risks relating to the FMX Hardware and/or Payments Hardware to the maximum extent permitted by law, except for the rights described in Section 2 above.
8. Incorporation of the Mindbody Terms of Service.
You acknowledge that these HW Terms are hereby incorporated into the Mindbody Terms of Service and are therefore part of the Agreement. Any dispute or claim arising from or relating to these HW Terms, the FMX Hardware, the Payments Hardware and/or the HW-Related Services is subject to the warranties and disclaimer, limitations and exclusions of liability, governing law and all other terms in the Mindbody Terms of Service. Any conflicts between the Mindbody Terms of Service and these HW Terms will be resolved in favor of these HW Terms.