Updated: 29 July, 2020
This Limited Warranty (this “Agreement”) applies to all FORM Smart Swim Goggles (“Goggles”) manufactured by or for FORM Athletica Inc. (“FORM”) and sold via any website whose domain ends in “formswim.com” (collectively, the “Site”), third party distributors retained by FORM, FORM’s authorized sellers or such other websites and mobile applications as made available by FORM, its affiliates, subsidiaries, third party distributors and authorized sellers from time to time.
This Agreement contains important terms that, among other things, affect FORM’s liability and your legal remedies against FORM, including a mandatory arbitration agreement.
1. Limited Warranty
(a) Scope and Period. FORM warrants to you that the Goggles will be free from defects in materials and workmanship under normal use for one (1) year from the original date of purchase (the “Warranty Period”). The foregoing limited warranty in this Agreement (the “Limited Warranty”) is not transferable by you. If the Goggles were purchased from FORM or an authorized seller online, the date of purchase is the date of the invoice that was issued by FORM or such authorized seller by email. If the Goggles were purchased from an authorized seller at a physical location, the date of purchase is the date of the invoice issued at the physical location. No FORM distributor, reseller, agent or employee is authorized to make any modification, extension or addition to this Limited Warranty. For Quebec consumers, all provisions of this clause apply in addition to the legal warranty.
(b) Defects. In the event FORM determines that the Goggles are defective, FORM may: (i) repair the defective part of the Goggles free of charge with new or refurbished parts; (ii) replace the defective Goggles with new Goggles; or (iii) in the event that FORM is unable to repair or replace the Goggles as provided under (i) or (ii), pay a proportionate refund of the purchase price you paid for the Goggles.
(c) Replacement. Where the Goggles are repaired or replaced during the Warranty Period, except as otherwise prohibited by applicable laws, the warranty for the repaired or replaced Goggles, as applicable, will expire upon the expiration of the original Warranty Period. In order to receive warranty service or support under the Limited Warranty, you must first return the defective Goggles with free and clear title, to FORM or its authorized service provider (as directed by FORM). Where there has been a replacement of the Goggles, the replacement Goggles provided pursuant to the Limited warranty become your property and the defective Goggles being replaced becomes FORM’s property. Where there is a refund, you will return the defective Goggles to FORM and such Goggles become FORM’s property.
(d) Exclusions. The Limited Warranty does not apply:
i. to normal wear and tear;
ii. if the Goggles or any of the Goggles’ parts are opened, disassembled, or repaired by someone not authorized by FORM;
iii. if the Goggles were not purchased from FORM or its authorized sellers;
iv. to damages caused by misuse, proximity or exposure to heat, accident, abuse, neglect, misapplication, your failure to abide by the use, safety, and maintenance instructions contained in the packaging of the Goggles, including, without limitation, a failure to follow such instructions regarding use of the Goggles with any other equipment, peripherals, or accessories authorized by FORM to be used with the Goggles, or repairs or modifications made by anyone other than FORM or its authorized service providers;
v. to cosmetic or other physical damage (including scratches) to the surface or coating of the Goggles;
vi. to any Goggles where the serial number has been removed or that have been damaged or rendered defective as a result of misuse, abuse, contamination, improper or inadequate maintenance or calibration, or other external causes;
vii. to any equipment, products or merchandise (including without limitation accessories, replacement parts, apparel and third party products), other than the Goggles;
viii. to malfunction or defects resulting from the use of the Goggles in connection with accessories, Goggles, services or ancillary or peripheral equipment or improper voltage or power supply not expressly approved or provided by FORM, and where it is determined by FORM that such malfunction or defect is not the fault of the Goggles itself; and
ix. to any software, whether or not supplied by FORM.
THE BELOW FINAL PARAGRAPH OF CLAUSE 1 DOES NOT APPLY TO QUEBEC RESIDENTS
Subject to applicable law, FORM does not warrant that the operation of the Goggles will be uninterrupted or error-free.
2. Authorized Sellers
FORM may, in its sole discretion and solely for convenience, make available on the Site or otherwise a list of authorized sellers of the Goggles.
3. Returning the Goggles
FORM is the provider of the Limited Warranty. FORM’s warranty contact information can be found at formswim.com/warranty. In the event you return the Goggles to FORM outside of the Warranty Period, FORM’s standard repair terms and charges may apply. Where permitted by applicable law, FORM may limit the Limited Warranty to the country where FORM or its authorized seller sold the Goggles to you.
Please review the Goggles use, maintenance, and safety instructions contained in the packaging, as well as our “How To” articles and other instructions online at support.formswim.com. Returns, repairs, or replacements of parts and/or Goggles may be subject to shipping, handling, and/or restocking fees.
4. Data Recovery
You acknowledge and agree that FORM will not be responsible for any data, software, applications, or information that may be damaged, lost, or destroyed during the course of evaluating, repairing, or replacing the Goggles. The Limited Warranty also does not cover backup, recovery, and reinstallation of your data on the Goggles. You should backup all data and applications on your device before returning it.
5. Exclusive Remedies
THIS CLAUSE DOES NOT APPLY TO QUEBEC CONSUMERS
The remedies in this Agreement are the exclusive remedies provided to you under this Agreement. To the extent permitted by applicable laws, the Limited Warranty in this Agreement is in lieu of all other warranties or conditions, express or implied. OTHER THAN THE GOGGLES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL EQUIPMENT, PRODUCTS AND MERCHANDISE SOLD BY FORM OR ITS THIRD PARTY DISTRIBUTORS, INCLUDING WITHOUT LIMITATION ACCESSORIES, REPLACEMENT PARTS, APPAREL AND THIRD PARTY PRODUCTS, ARE FINAL SALE AND SOLD WITHOUT ANY WARRANTIES OR CONDITIONS. EXCEPT AS SET OUT IN THE LIMITED WARRANTY AND AS PERMITTED BY APPLICABLE LAWS, FORM SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, ENDORSEMENTS, AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE OR NON-INFRINGEMENT AND ANY IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS FOR A PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, DURABILITY, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. WHERE IMPLIED WARRANTIES CANNOT BE DISCLAIMED BY APPLICABLE LAW, SUCH IMPLIED WARRANTIES ARE LIMITED TO THE DURATION OF THE LIMITED WARRANTY.
THE LIMITED WARRANTY IN THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. SECTION 5 IS NOT APPLICABLE TO RESIDENTS OF QUEBEC.
6. Release, Waiver and Limitation of Liability
THIS CLAUSE DOES NOT APPLY TO QUEBEC CONSUMERS
(a) YOU ACKNOWLEDGE AND AGREE THAT FORM, ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, LICENSORS, SUPPLIERS, SERVICE PROVIDERS, RESELLERS, AND DISTRIBUTORS (COLLECTIVELY, “FORM” IN THIS SECTION 6) WILL IN NO WAY BE LIABLE TO YOU FOR ANY GENERAL, PECUNIARY, NON-PECUNIARY, INDIRECT, ECONOMIC, SPECIAL, COMMERCIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, LOST DATA, LOSS OF OPPORTUNITY, AND DAMAGES CAUSED BY DELAYS OR A FAILURE TO REALIZE EXPECTED SAVINGS) ARISING FROM OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE GOGGLES, EVEN IF SUCH PERSON/ENTITIES IS/ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
(b) WHERE PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE AND AGREE THAT YOU WAIVE AND RELEASE FORM OF ANY AND ALL LIABILITY FOR ANY LOSS, DAMAGE, EXPENSE OR INJURY, INCLUDING DEATH, WHICH YOU OR YOUR NEXT OF KIN MAY SUFFER RESULTING FROM YOUR USE OF THE GOGGLES DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE BY FORM.
(c) IN NO EVENT SHALL FORM’S LIABILITY UNDER THIS AGREEMENT TO YOU OR TO ANY THIRD PARTY CLAIMING THROUGH YOU OR ON YOUR BEHALF EXCEED THE PURCHASE PRICE OF THE GOGGLES THAT YOU PURCHASED OR THE COST OF REPAIRING OR REPLACING THE GOGGLES, WHICHEVER IS GREATER.
(d) THE LIMITATIONS OF LIABILITY SET OUT IN SECTIONS 6.(a), 6.(b) AND 6.(c) ABOVE ARE INTENDED TO APPLY AND DO APPLY TO ANY DAMAGES, LOSSES, OR LIABILITY OF ANY TYPE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) AND EVEN IF FORM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(e) THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 6 APPLY TO THE FULL EXTENT THEY ARE NOT PROHIBITED BY APPLICABLE LAW WITHOUT THE POSSIBILITY OF CONTRACTUAL WAIVER.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
7. General Matters
(a) Equivalency. This electronic Agreement and any other materials incorporated herein will be: (i) deemed for all purposes to be a “writing” or “in writing”, and to comply with all statutory, contractual and other legal requirements for a writing; (ii) legally enforceable as a signed writing as against the parties subject to the electronic documents; and (iii) deemed an “original” when printed from electronic records established and maintained in the ordinary course of business. Electronic documents introduced as evidence in any judicial, arbitration, mediation or proceeding will, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.
(b) Enurement. These terms and conditions and the rights and duties herein will be binding on and enure to the benefit of you and FORM and their successors and permitted assigns (including your heirs, executors and administrators).
(c) Force Majeure. No FORM entity shall be responsible for a failure to fulfil any obligations pursuant this Agreement or for delay in doing so if such failure or delay is due to circumstances beyond its reasonable control, such as acts of God, acts of government, war, riots, strikes and accidents in transportation.
(d) Amendments. Except as set forth in Section 11, this Agreement will not be and is incapable of being amended or varied, verbally or in writing, unless any such amendment or variation is in writing and signed by both you and a senior officer of FORM in an instrument that expressly refers to this Agreement.
(e) No Implicit Waivers or Novations. The failure by FORM to insist on strict compliance with any provision of this Agreement will not be deemed to be a waiver of such provision, and a waiver of any provision of these terms and conditions at any one time or times will not be deemed to be a waiver for any other time. The failure of FORM to assert its rights in a timely fashion for any of its rights or remedies under these terms and conditions will not be interpreted as a novation or a waiver of any subsequent or continuing breach and will not serve to modify, alter or restrict the right of FORM to assert any rights at any time thereafter.
(f) Severability. Each provision of this Agreement, and part thereof, is declared to be separate, separable and distinct from all other provisions and parts thereof. If any provision or part thereof is determined by a court of competent jurisdiction or other constituted legal authority to be void, unenforceable or unreasonable in whole or in part, it will not be deemed to affect or impair the enforceability or validity of any other promise or provision in this Agreement or any part thereof and the said court or other constituted legal authority will have the authority to limit such promise or provision as it deems proper.
(g) Non-Application. The United Nations Convention on Contracts for the International Sale of Goods, and any implementing legislation will not apply in any way to this Agreement or to the transactions contemplated by this Agreement.
(h) English Language. The parties have requested and agree that this Agreement and all documents relating thereto be drawn up in English / Les parties ont demandé que cette convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais.
8. Dispute Resolution
THIS CLAUSE IS NOT APPLICABLE TO QUEBEC CONSUMERS
(a) Arbitration. Where permitted by applicable law, all disputes, controversies or claims arising out of or in connection with or in relation to this Agreement or the breach thereof, including any and all disputes, claims or question regarding: (i) the existence, validity, application, interpretation, performance, enforcement or termination of this Agreement; (ii) any dispute or claim arising out of or relating to the negotiation, execution, interpretation, application or performance of this Agreement; or (iii) any dispute or claim arising out of or relating to the design, manufacture, distribution, instruction, warning, performance or use of the Goggles (collectively, the “Dispute”), will be solely and exclusively referred to, and finally resolved by, binding arbitration pursuant to the Domestic Commercial Arbitration Rules of Procedure (if you are a Canadian customer) or the International Commercial Arbitration Rules of Procedure if you are a customer located outside of Canada) of the British Columbia International Commercial Arbitration Centre then in force (respectively, the “Arbitration Rules”). A single arbitrator shall be appointed by agreement of the Parties, or, in default of agreement, such arbitrator will be appointed in accordance with the Arbitration Rules. The arbitration will be governed by the laws of the Province of British Columbia and the laws of Canada as applicable therein. The arbitration will be held in Vancouver, British Columbia and will be conducted in the English language. The arbitrator shall have jurisdiction to award costs of the arbitration, including attorney’s fees and disbursements and arbitrator fees and expenses. Any award and the determination of such arbitrator will be final and binding upon you and FORM. A judgment on the award of the arbitrator may be entered into any court having jurisdiction over the party or parties against whom an award may be issued and each of you and FORM agrees to and hereby waives any defences against the enforceability and execution of any such judgment awarded by the arbitrator as contemplated in this Agreement. Judgment on the award of an arbitrator may be entered by any court having jurisdiction over the person or property of the person against whom enforcement of the judgment is sought. Where arbitration is prohibited by applicable laws, you and FORM hereby agree to the exclusive jurisdiction of the courts of the province of British Columbia, Canada with respect to any Disputes relating to this Agreement.
(b) No Trial by Jury. You hereby waive all rights to a trial by jury with respect to any claims and issues relating to or arising out of this Agreement.
THE FOLLOWING CLAUSE IS APPLICABLE TO U.S. CONSUMERS
(c) You may choose to have the arbitration conducted by telephone, based on written submissions, or at another mutually agreed upon location.
(d) YOU AND FORM HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and FORM are instead electing that all claims and disputes shall be resolved by arbitration under this Agreement, except as specified herein. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
(e) ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, than then claim must be severed from the arbitration and brought in Vancouver, British Columbia, Canada. All other claims shall be arbitrated.
(f) You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: 200 - 1090 Homer Street, Vancouver, BC, V6B 2W9, Canada, within 30 days after first becoming subject to this Agreement, or using one of the methods available at formswim.com/contact-us. Your notice must include your name and address, your username (if any), the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of the arbitration provisions under this Agreement. If you opt out of this arbitration, all other parts of this Agreement will continue to apply to you. Opting out of this arbitration has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
(g) Except as provided in herein, if any part or parts of this 14 are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Section 14 shall continue in full force and effect.
(h) This Section will survive the termination of your relationship with FORM.
THIS CLAUSE IS NOT APPLICABLE TO QUEBEC CONSUMERS
You waive: (a) any right to object to venue or jurisdiction based on inconvenient forum or for any other reason, and (b) any statutory or other right pursuant to the laws of the jurisdiction in which the you are resident to have a court case or arbitral hearing relating to this Agreement adjudicated or resolved in that jurisdiction. Any rule of interpretation, law or regulation that provides that the language of a contract will be interpreted against the drafter will not apply to this Agreement.
10. Governing Law.
THIS CLAUSE IS NOT APPLICABLE TO QUEBEC CONSUMERS
This Agreement will be governed by and interpreted in accordance with the laws of the Province of British Columbia and the federal laws of Canada as if made and performed by and between parties situated in such province and without regard to the conflict of law rules that would apply a different body of law.
11. Updates and Supplementary Terms.
THIS CLAUSE IS NOT APPLICABLE TO QUEBEC CONSUMERS
This Agreement may be updated or supplemented by FORM from time to time. For Goggles purchased in specific countries, unique terms may replace or modify this Agreement if so provided with the Goggles or posted at the Site. All terms that are not changed by these unique country terms (if any) remain unchanged and in effect. Please visit the Site to obtain the latest version of, or supplements or any country or jurisdiction-unique terms to, this Agreement.
12. How to Contact FORM.
If you have any questions or comments regarding this Agreement, you may contact FORM using one of the methods available at formswim.com/contact-us or by mail at 200 - 1090 Homer Street, Vancouver, BC, V6B 2W9, Canada.