1. Introduction and Acceptance.
YOUR USE OF THE SITE AND THE PRODUCTS CONSTITUTES YOUR ACCEPTANCE OF AND AGREEMENT TO ALL OF THE TERMS AND CONDITIONS IN THE AGREEMENT. IF YOU DO NOT AGREE, DO NOT USE THE SITE.
2. Modification of Terms.
HIMAMA reserves the right, in its sole discretion, to change, modify, add or remove portions of these Terms, at any time. The most current version will be posted on the Site. It is your responsibility to check these Terms periodically for changes. Your continued use of the Site following the posting of changes will mean that you accept and agree to the changes.
3. Orders and Shipping.
Purchases made through the Site are intended for end users only, and are not authorized for resale. HIMAMA reserves the right not to accept your order in its sole discretion. After you place an order, you will receive a confirmation email from HIMAMA, constituting HIMAMA’s acceptance of your order. You agree that any scheduled shipment dates are estimates only, and HIMAMA shall not be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery. HIMAMA will pack the Products in accordance with its standard practices. Title to the Products and risk of loss will pass to you upon HIMAMA’s delivery of the Products to the carrier.
4. Pricing and Payment.
Any prices listed on the Site are in the currency as stated on the Site and do not include any shipping and handling charges or applicable taxes and may change at any time. HIMAMA can withdraw Products from the Site at any time and for any reason.
We accept the payment methods indicated on the site. You must provide current, complete and accurate billing and payment information. In certain instances, the issuer of your credit card or your payment provider may charge you a transaction fee or related charges, which you will be responsible to pay. We do not accept any payment method not indicated on the site, including without limitations cash, check, money orders, ACH, debit cards or bank wires, unless you have prior written authorization from HIMAMA to use such a payment method. You shall be responsible for all applicable taxes that arise in any jurisdiction, including without limitation, value added, consumption, sales or other taxes, fees, duties, or charges imposed on the sale of the Products (collectively, “Taxes”). You agree to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance.
The countries where HIMAMA is available for sale or preorders are indicated on the Site. HIMAMA reserves the right to cancel any orders or preorders at any time in its sole discretion. In case of such a cancellation by HIMAMA, HIMAMA will not charge your credit card or other payment method, as long as the Product is not delivered to you as of the time of the cancellation.
5. User Manual.
There is an online user manual (www.himamaus.com/welcome) that contains various important information related to the optimal use and maintenance of your Product, including without limitation technical specifications, use instructions and service communication (“User Manual”). The App may contain additional explanations relating to the Product’s use and maintenance (“App Instructions”). You represent and warrant that you have read and understood the User Manual and the App Instructions, and you agree that HIMAMA is not responsible, under the Warranty below or otherwise, for damage or non-performance from failure to follow the User Manual or any other instructions relating to the Product’s use.
6. Limited Product Warranty.
The warranty offered herein by HIMAMA (the “Warranty”) gives you specific legal rights, and you may have other legal rights, including those under consumer laws, which may vary in different jurisdictions. To the extent permitted by law, this Warranty and the remedies set forth are exclusive and in lieu of all other warranties, remedies and conditions, whether oral, written, statutory, express or implied. HIMAMA disclaims all statutory and implied warranties, including without limitation, warranties of merchantability and fitness for a particular purpose and warranties against hidden or latent defects, to the extent permitted by law. In so far as such warranties cannot be disclaimed, HIMAMA limits the duration and remedies of such warranties to the duration of this express Warranty (to the extent permitted by law) and, at HIMAMA’s option, the repair or replacement services described below. Some jurisdictions do not allow limitations on how long an implied warranty (or condition) may last, so the limitation described above may not apply to you.
HIMAMA warrants to the original purchaser that the Product will be free from material defects in workmanship and materials under normal use for a period of one (1) year from the date of your purchase, unless longer minimum periods are required under mandatory laws in your jurisdiction (“Warranty Period”). This Warranty applies to hardware products and accessories marked with the “HIMAMA” trade name or logo and containing a valid HIMAMA serial number which were sold/purchased on the Site or from an authorized reseller.
If you submit warranty claims to HIMAMA before the end of the Warranty Period and your Product clearly and verifiably fails the warranty, HIMAMA will, in its sole discretion: (i) refund you in the amount of the price you paid for the Product (excluding taxes and shipping costs); (ii) exchange the Product with a new or refurbished Product (exchange the Product of identical specifications or functional equivalent); or (iii) repair the Product. This Section sets forth your sole and exclusive remedy, to the extent permitted by law. Returns shipped without HIMAMA’s prior express return authorization will not be accepted.
If a Product has been exchanged or repaired following this Warranty, it will be subject to a warranty for either: (i) the remaining original Warranty Period; or (ii) thirty (30) days from the date of repair or replacement or for any additional period of time that is applicable in your jurisdiction.
You must deliver the Product to the address specified by HIMAMA in either its original packaging or packaging providing an equal degree of protection. In accordance with applicable law, HIMAMA may require that you furnish proof of purchase details and/or comply with registration requirements before any warranty service is rendered. It is your responsibility to synchronize any data stored on the Product. It is likely that such data will be lost or reformatted during service, and HIMAMA will not be responsible for any such damage or loss. HIMAMA is not responsible for lost or damaged return shipments. You assume responsibility for the payment of any shipping charges and for all risk of loss or damage to the Product during shipment to HIMAMA.
This Warranty does not apply to, and explicitly excludes, the following: (a) consumable parts, such as straps, unless damage has occurred due to a defect in materials or workmanship in the Product; (b) normal wear and tear and cosmetic damage, including, but not limited to, scratches, dents, damaged packaging material or damaged plastic parts; (c) defects or damage caused by alteration, unusual stress, accident (including, without limitation, collision, modification fire and the spillage of food or liquid), neglect, abuse, misuse, improper or unauthorized repair, installation, wiring, improper storage or testing, use of third party accessories such as straps or cables, third-party applications downloaded to the Product or if the serial number has been removed; (d) damage caused by using the Product outside the permitted or intended uses described by HIMAMA; (e) damage caused by use with non-HIMAMA products; (f) any non-HIMAMA hardware products or any software, even if packaged or sold with the Product; and (g) modifications of the Product by anyone other than HIMAMA. HIMAMA reserves the right to disable Product if HIMAMA suspects fraud or if HIMAMA finds out that the Product is counterfeit, stolen or lost in shipment. This Warranty does not cover the software embedded in the Product and the services provided by HIMAMA to owners of the Product, nor your use of the Site and the application provided by HIMAMA.
In the event of a conflict between these Terms and the Warranty enclosed in the Product package at time of purchase, these Terms shall control.
You acknowledge that you have verified the compatibility of the Products you are purchasing with other required equipment (e.g., ensuring that your mobile device and/or operating system is compatible with the Product). You are solely responsible for determining the compatibility of the Products with other equipment, and you accept that lack of compatibility is not a valid claim under the warranty provided with your Products.
Similarly, you acknowledge that the Product comprises a device and hitop with the measurement as specified on the Site. You are required to check your correct top size before buying the Product, and communicate with the HIMAMA customer service if needed. You are solely responsible for determining that the size is right for you, and you accept that wrong size is not a valid claim under the Warranty provided with your Products.
8. Intellectual Property.
The Site and the Products contain various intellectual property, such as content, product designs, logos, trademarks, text, editorial content, data, formatting, graphs, graphics, user interfaces, visual interfaces, photographs, artwork and computer code, HTML, “look and feel,” software layout, music, sounds, images, software, videos, designs, typefaces and other content (collectively, the “Proprietary Material”). Such Proprietary Material is owned, controlled or licensed by or to HIMAMA and protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws. You may not copy, download, use, redesign, reconfigure, retransmit or reverse engineer the Product or anything from the Site without HIMAMA’s express prior written consent.
HIMAMA hereby grants you a non-exclusive, non-transferable right to use the Site and any software-related aspects of the Product solely for your internal, non-commercial use in the country of purchase or of residence. All rights not expressly granted to you are reserved by HIMAMA. You shall not, without HIMAMA’s express written consent: (a) license, sub-license, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Products or Site in any way; (b) copy, imitate, mirror, reproduce, distribute, publish, download, display, perform, post or transmit any Products, Site or Proprietary Material (as defined in these Terms) in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording or otherwise; (c) modify or make derivative works or use based upon the Products or Site; or (d) reverse engineer or access the Products or Site. Any use of the Products or Site other than as specifically authorized herein, without the prior written permission of HIMAMA is strictly prohibited, and HIMAMA may terminate the license granted herein with immediate effect. Such unauthorized use may also violate applicable laws, including without limitation intellectual property laws. Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to intellectual property rights. This license is revocable at any time.
10. Your Use of the Site and Products.
Except expressly provided in these Terms, you shall not (1) violate the security of the Products or the Site or attempt to gain unauthorized access to the Products, the Site or any network connected to the Site; (2) perform any action which may impair the Products or damage the Site, including without limitation take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or HIMAMA’s systems or networks; (3) probe, scan or test the vulnerability of the Site or any network connected to the Site, or breach the security or authentication measures on the Site or any network connected to the Site; (4) use or attempt to use any deep-link, scrape, robot, spider, data mine or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Site or any content, or in any way reproduce or circumvent the navigational structure or presentation of the Site or any content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Site; (5) download, store, reproduce, transmit, display, or distribute any part of the Site; or (6) misrepresent your affiliation with HIMAMA or any other person or entity. You may not reverse look-up, trace or seek to trace any information on any other user of or visitor to the Site, or any other customer of HIMAMA, including any HIMAMA account not owned by you, to its source, or exploit the Site, Product or any service or information made available or offered by or through the Site, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than your own information, as provided for by the Site. HIMAMA reserves the right to bar any such activity.
11. Data Ownership and Privacy.
You shall have all rights, title or interest to any personally identifiable data, property or information collected by HIMAMA on behalf of you in connection with its performance under the Agreement, including without limitation any data transmitted from the Product to the mobile application and HIMAMA’s servers; provided, however, that nothing contained herein shall affect HIMAMA’s rights, title or interest to any de-identified data, property or information generated, compiled or analyzed by HIMAMA in connection with its performance under the Agreement, including without limitation any analyzes or reports of aggregated data.
12. Third Party Content.
The Site may contain website links, functionalities as well as advertisements, promotions, products or services of third parties that are not owned or controlled by HIMAMA (collectively, “Third Party Content”). HIMAMA does not control or endorse such Third Party Content, and is not responsible or liable for the terms, conditions, privacy policies, actions, inactions, opinions, advice, statements, offers, warranties, representations, content or functionality of any such third party or its site. YOUR USE OF THIRD-PARTY WEBSITES AND RESOURCES IS AT YOUR OWN RISK. HIMAMA is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third party advertisers on the Site. You agree to indemnify and hold HIMAMA harmless in the event of any claim related to Third Party Content.
13. Account, Password, Security.
You are solely and fully responsible for (a) maintaining the confidentiality of any user ID, password, account number or any other confidential information relating to your account; and (b) all activities that occur under your password or account, and HIMAMA disclaims any liability derived therefrom. If you suspect any unauthorized use of your password or account, you shall contact HIMAMA as soon as reasonably practicable. You represent and warrant that (1) all data provided by you for registration is accurate, non-misleading and complete; (2) any changes in the registration data will be reported to us by you within 5 days upon the occurrence of the change. Access to certain areas of the Site is restricted. HIMAMA reserves the right to restrict access to other areas of the Site, or indeed its whole Site, in its sole discretion.
14. Disclaimer of Warranty.
HIMAMA represents and warrants that the Product is consistent with general industry standards reasonably applicable to the provision thereof. EXCEPT (I) AS SET FORTH HEREIN AND (II) TO THE EXTENT PROHIBITED BY APPLICABLE MANDATORY LAW, HIMAMA MAKES NO FURTHER WARRANTY, EXPRESS OR IMPLIED, REGARDING THE PRODUCT, AND HEREBY DISCLAIMS ALL OTHER WARRANTIES (EXPRESS OR IMPLIED) INCLUDING, BUT NOT LIMITED TO THE IMPLIED INDEMNITIES AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. HIMAMA DOES NOT REPRESENT OR WARRANT THAT THE PRODUCT WILL MEET ANY OF YOUR EXPECTATIONS OR REQUIREMENTS OR THAT THE PRODUCTS ARE PROVIDED SECURELY OR WITHOUT ERRORS. THE PRODUCTS ARE PROVIDED ON AN “AS AVAILABLE” BASIS AND WE MAKE NO WARRANTIES THAT THE PRODUCTS WILL BE TIMELY, ACCURATE OR AVAILABLE AT ALL TIMES. CUSTOMER USE OF THE PRODUCT IS AT YOUR SOLE DISCRETION AND RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM HIMAMA OR THROUGH OR FROM THE PRODUCT WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
15. No Medical Advice.
Nothing provided by HIMAMA in connection with the Products shall be construed to constitute professional medical advice, diagnoses, or treatment, and you should not rely on them as such. Your physician has particular medical knowledge about you, your fertile health and your fetus’ or baby’s health and should always be consulted if you have a medical emergency or questions about a medical condition. Your decision to rely on any information you obtain in connection with your use of the Product is at your sole discretion and risk. HIMAMA does not promise any particular results, including conception or delivery, regardless of whether you follow all the recommendations contained in the Product. The Product cannot and may not be used for contraception. HIMAMA does not guarantee pregnancy or pregnancy prevention, nor does it guarantee that its prediction of your cycles will always be accurate. If you think you may have a medical emergency, call your local emergency or healthcare provider immediately.
16. Limitation of Liability.
HIMAMA SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHETHER ARISING IN AN ACTION (INCLUDING WITHOUT LIMITATION LOSS OF REVENUE, USE, PROFITS, DATA, OR GOODWILL OR COSTS OF PROCURING SUBSTITUTE PRODUCTS) FOR BREACH OF CONTRACT, TORT, PRODUCT LIABILITY OR ANY OTHER CAUSE OR THEORY OF LIABILITY, RELATED TO OR IN CONNECTION WITH THIS AGREEMENT, THESE TERMS OR THE PURCHASE, SALE, USE, OPERATION OR PERFORMANCE OF THE PRODUCTS. HIMAMA AND YOU 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.
YOU AGREE AND ACKNOWLEDGE THAT THE TOTAL AMOUNT OF HIMAMA’S LIABILITY, IF ANY, FOR ANY AND ALL CLAIMS, CAUSES OF ACTION, LOSSES, DAMAGES, OR JUDGMENTS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCTS SHALL NOT EXCEED THE COST OF THE PRODUCT AT ISSUE OR $500.00, WHICHEVER IS GREATER. 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 protect, defend, indemnify and hold harmless HIMAMA, its owners, affiliates, subsidiaries, parents, shareholders, officers, directors, attorneys, agents, employees, assigns and representatives (“we” or “us” for purposes of this provision), from and against any and all claims, losses, liabilities, causes of action, judgments, penalties, costs, damages and expenses (including attorneys’ fees, litigation costs and expenses) incurred by us, including, without limitation, any claim for personal injury or property damage arising from or related to your violation of: (a) this Agreement, including the representations and warranties made herein; (b) your use of the Products; or your nonpayment of any Taxes, as defined above.
18. Representations and Warranties.
You represent and warrant that:
- you have not falsely identified yourself nor provided any false information to purchase or gain access to the Products;
- your payment information is correct and complete;
- you will pay any shipping and handling charges and applicable Taxes;
- you will at all times during the term of this Agreement comply with the terms of this Agreement and any applicable domestic or international laws;
- you are not accessing and have not accessed the Products to commit illegal acts or violate any provisions of this Agreement;
- you are the authorized party and (if applicable) signatory to the payment mechanism used to open and maintain your account; and
- you are responsible for any use, activity, and charges incurred by you and any other users under your account.
You acknowledge that your breach of these representations and warranties shall entitle HIMAMA to injunctive relief (monetary damages not being sufficient remedy), as well as available monetary damages and its attorneys’ fees and costs.
19. Right of Withdrawal.
In case mandatory laws in your jurisdiction stipulate a right of withdrawal with regard to the Product, you may exercise such right provided that all conditions for its applicability are met. The rights conferred shall be limited to their minimum. This Section 19 (Right of Withdrawal) does not apply to residents of the United States.
20. Force Majeure.
In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
By using the Products, you consent to receiving electronic communications from HIMAMA. You agree that any notice, agreements, disclosure or other communications that we send to you electronically will satisfy any legal requirements for written communication.
22. Governing Law; Venue.
If you reside in North America, this Agreement will be governed by and in accordance with the laws of the State of Florida with venue in the state and federal courts located in Dade County, Florida, regardless of choice of law rules. The United Nations Conventions On Contracts For The International Sale Of Goods, if otherwise applicable, does not govern the sale of the Products. We both agree to waive our right to a jury trial. You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non convenience with respect to venue and jurisdiction set forth herein.
23. No Class Actions.
You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. To the extent permitted by law, class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed under this Agreement.
24. Time Limitation on Claims.
Except to the extent prohibited by applicable mandatory law, you agree that any claim you may have arising out of or related to your relationship with HIMAMA must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
Should any provision of these Terms be held invalid, void, or otherwise unenforceable, that provision shall be deleted, but all other provisions, as well as the remaining portion (if any) of the invalid, void or unenforceable provision, shall continue in full force and effect.
Failure or neglect by HIMAMA to enforce any of the provisions of these Terms shall not be construed or deemed a waiver of its rights nor shall this affect the validity of the whole or any part of these Terms, nor prejudice HIMAMA’s rights to take subsequent action.
You may not assign this Agreement without HIMAMA’s prior written approval. HIMAMA may assign this Agreement without your consent.
28. Entire Agreement.