TERMS AND CONDITIONS OF SALE AND USE
These Terms and Conditions of Sale and Use (collectively, this “Agreement”) apply to all pre-orders, purchases and use of products (each a “Product”) manufactured, marketed, distributed and/or sold by FitMyFoot Inc. (“FitMyFoot”) via any website whose domain ends in “FitMyFoot.com”, third party distributors retained by FitMyFoot, or such other websites and mobile applications as made available by FitMyFoot, its affiliates, subsidiaries and third party distributors from time to time (the “Site”). In this Agreement, the buyer of any Product via the Site is referred to as “you”; accordingly, if the individual making the purchase is doing so on behalf of a corporation or other legal entity, he or she represents and warrants having the authority to do so and to bind such entity to this Agreement. Throughout this Agreement, “Residents of Québec” means residents of Québec who enter into a contract to which the Consumer Protection Act (Québec) applies.
This Agreement contains important terms that, among other things, affect FitMyFoot’s liability and your legal remedies against FitMyFoot. Please read this Agreement carefully, BEFORE you indicate your acceptance of this Agreement as part of a transaction on the Site. If you check the “I AGREE TO THE TERMS AND CONDITIONS OF SALE AND USE” option as part of the transaction in which this Agreement is presented, you agree to be bound by this entire Agreement including the warranty disclaimers, limitations of liability and methods of resolving disputes.
TERMS OF SALE
Orders, Price and Payment
Price and Order. The total price for the Products you are purchasing will be stated on the confirmation notice displayed at the last step of the ordering transaction before you confirm your purchase, and, upon your acceptance of the confirmation notice as well as all of the terms and conditions of this Agreement, the notice becomes your “Order”, an offer to us to purchase such Products on the terms set out therein and this Agreement.
Availability. All Orders are subject to availability. When placing your Order, the confirmation notice will display whether the item is in-stock (an “In-Stock Product”), out-of-stock (an “Out-Of-Stock Product”), or a pre-order (a “Pre-Ordered Product”) and may provide an estimated delivery time frame.
Acceptance. Orders submitted by you are not binding upon FitMyFoot until the Order is accepted by FitMyFoot as indicated by FitMyFoot’s issuance of a Purchase Invoice (an “Invoice”) to you by email for such Order, which email also constitutes FitMyFoot’s acceptance of your Order.
Merchant. FitMyFoot may appoint a merchant of record (the “Merchant”), as indicated in your confirmation notice, as the merchant of record for the transaction. In such a case, the Merchant will accept payment, handle Orders, and handle shipments for and behalf of FitMyFoot. Accordingly, your point of contact for dealing with Orders may be the Merchant and not FitMyFoot directly; check your Invoice for more details.
Subject to FitMyFoot Cancellation. FitMyFoot reserves the right to decline to accept your Order, or to cancel an accepted Order after an Invoice, at any time, including, without limitation, in the event there is an error, typographical error, inaccuracy, omission or mistake to the price of any of FitMyFoot’s Products or Product descriptions, promotions, offers or availability. Prices, specifications and configurations are subject to change without notice. Although FitMyFoot makes reasonable efforts to ensure that the Site is current and contain no errors or inaccuracies, FitMyFoot makes no representations, warranties or guarantees that the information, content or materials included in the Site will be error-free or completely accurate or current at all times, or at any time. FitMyFoot reserves the right at any time in FitMyFoot’s sole and absolute discretion and without notice to correct any errors, inaccuracies or omissions to the information on the Site.
Taxes, Duties and Extra Charges. Prices advertised on the Site may not include shipping and handling charges or applicable country or region-specific sales, goods or services taxes, which may be added to the price you pay. Calculation of taxes and shipping charges occurs before your Order is submitted and charged to your credit card as part of the total order amount. You are also responsible for any customs duties or any other similar fees associated with your Order.
Currency. All pricing will be noted on your Order and on the Invoice in the appropriate country- or region-specific currency as indicated thereupon. Depending on that currency, your credit card company may apply a conversion rate and additional fees that are outside of FitMyFoot’s control. Furthermore, if for any reason pursuant to this Agreement you become entitled to a refund, that refund may be converted by your credit card company at a different rate meaning that it may be lesser than, or greater than, the actual amount charged to you by your credit card company, as the case may be.
EXPIRY OF PURCHASE CODES
FitMyFoot purchase codes will be valid for use for 1 year from the date of issue (or as otherwise extended by us) after such time it will be invalid. You should redeem the purchase code before the expiry date, after the expiry date unused value will become the property of FitMyFoot.
CHANGES TO ORDERS
Changes. You may request a change to your Order under any Invoice, provided that the Product has not been released to production by the time of your request. Contact information can be found at: https://FitMyFoot.com/pages/contact-us. Please note that any such changes may delay other items of your Order, or may delay your Order entirely. Changes to existing Orders are treated as a new Order, subject to acceptance and other procedures generally described in Section 1 above. You will be responsible for any additional charges resulting from any accepted changes to your Order, and if an accepted change would entitle you to a refund, FitMyFoot or its Merchant will process such refund within 15 days of the acceptance of the change.
Cancellations and Cancellation Fees. You may request cancellation of any Order (even after an Invoice has been accepted) at any time until the applicable Product(s) has/have shipped. Contact information can be found at: https://FitMyFoot.com/pages/contact-us.
RETURNS AND REFUNDS
Return Period. FitMyFoot offers a limited 30 day return period (starting from the date the product is received) for all Products purchased from the Site which are defective (unless the Product Description or Order, as the case may be, indicates otherwise for any particular Product) (the “Return Period”).
Requesting an RMA. The Return Period applicable to a Product commences when FitMyFoot or its Merchant receives notice from its shipping agent that the applicable Product has been delivered to you. To request a refund, you must, within the Return Period, contact FitMyFoot or its Merchant (contact information can be found at: https://FitMyFoot.com/pages/contact-us during business hours to request a return merchandise authorization (“RMA”). FitMyFoot or its Merchant will send to you a RMA form by email and you must complete the RMA form and return it to FitMyFoot or its Merchant by following the instructions contained therewith within 10 days.
Returning the Product. You must return the product to FitMyFoot, following the RMA instructions. The Product must be returned with all contents provided to you with the Product when it originally shipped.
Non-Compliant Returns; Restocking Fee. If FitMyFoot, in its sole and absolute discretion, determines that the returned Product has not been returned in accordance with this Agreement or is not in original condition (such as, without limiting FitMyFoot’s discretion, if the package has been opened, there are signs of use or tampering, there are any missing components or it has been damaged) FitMyFoot may, in its sole and absolute discretion refuse to accept the return by returning the Product to you, upon which you will not be entitled to any refund.
Processing Refund. Subject to Section 3.d, FitMyFoot or its Merchant will refund to you the purchase price for the Product that was actually paid to FitMyFoot or its Merchant (for greater certainty, including applicable taxes but excluding shipping costs and any other extra charges for which you are responsible pursuant to the “Extra Charges” section above at Section 1.g) via the same means FitMyFoot or its Merchant received your payment in the first instance. Your refund will be processed no later than 15 days of FitMyFoot’s or its Merchant’s receipt of your Product.
Products. We strive to ship products within 14 days of the date of the purchase.
Pre-Ordered Products. When placing an Order for a Pre-Ordered Product, the Order or your Invoice may indicate an estimated shipping time. Pre-Ordered Products will be shipped if and when available. FitMyFoot makes no guarantee that any such Products will be shipped at any particular time and the actual date of shipment may change for any reason, including availability of materials, supplier difficulties, changes in specifications, matters beyond FitMyFoot’s or its Merchant’s control, design changes, government approvals or certifications, or any other reason. FitMyFoot will update you with its estimate of the shipping date from time to time, and will notify you when the Pre-Ordered Product ships.
Estimates. Any shipping dates or timeframes provided (whether in your Invoice or in this Agreement) are estimates only and subject to change.
Priority. All Products will be shipped in the order in which Invoices have been issued to FitMyFoot’s customers, including you.
Receipt. The date of shipping does not guarantee the date of receipt; the actual delivery date to you will depend on the shipping method selected and available to you during your Order.
General. FitMyFoot will arrange to deliver the Products in your Order to the address you provided in your Order, as noted on the Invoice. Title to the Products, and risk of loss, passes to you upon FitMyFoot’s delivery of the Product to the carrier you have selected or that was made available to you during your Order.
Delivery Procedure. FitMyFoot’s carriers will complete delivery of the Product to you at the address you specify in your Order.
Investigations. FitMyFoot reserves the right to investigate (or to retain a third party to investigate) any claims or returns on the basis of incorrect delivery procedure and false information. In the unlikely event that your Order arrives with visible damage to the exterior packaging, you may either take delivery or refuse the shipment.
Errors and Damages. You must examine the Product after you receive it. If an Order or shipping error has occurred, or if your Product is damaged (except for latent damage not readily apparent) you must notify FitMyFoot of the particulars as soon as possible, but in any event within two (2) days of the carrier’s delivery to you (the “Inspection Period”). Any claims made after this time frame will not be honoured and the Product(s) shipped and delivered to you will be deemed to have been delivered and accepted by you, and FitMyFoot will not consider any claim for damaged or missing Products outside of this time period.
Return Procedure. If your Product was received in error, or in damaged condition or other than in apparent good order, please contact FitMyFoot immediately. Contact information can be found at: https://FitMyFoot.com/pages/contact-us.
Scope and Period. FitMyFoot warrants to you that the Product will be free from defects in materials and workmanship under normal use for 1 year from the original date of purchase by you (the “Warranty Period“). The limited warranty in this Agreement (the “Limited Warranty”) is not transferable by you. All subsequent purchasers acquire the Product “as is” without benefit of the Limited Warranty. Where you purchased the Product from FitMyFoot’s Site or other online vendors the date of purchase is the date of the purchase invoice issued to you by FitMyFoot or such online vendors by email. Where you purchased the Product from an authorized reseller at a physical location, the date of purchase is the date of the invoice issued to you at the physical location.
Defects. In the event FitMyFoot determines that the Product is defective, FitMyFoot may in its discretion: (i) replace the defective Product with a new Product; or (ii) refund to you the purchase price you paid for the Product. SECTION 6(b) IS NOT APPLICABLE TO RESIDENTS OF QUEBEC.
Replacement. Where the Product is replaced during the Warranty Period, except as otherwise prohibited by applicable laws, the warranty for the replaced Product, as applicable, will expire upon the expiration of the original Warranty Period. Any warranty service or support under this Limited Warranty is conditioned upon your return of the Product to FitMyFoot. Where there has been a replacement of the Product, the Product, as provided pursuant to this limited warranty, becomes your property and the Product being replaced becomes FitMyFoot’s property. Where there is a refund, you will return the Product to FitMyFoot and such Product becomes FitMyFoot’s property. FitMyFoot may condition a refund or replacement on you returning the product or require you to provide a credit card number, which will be charged only if you fail to return the Product. SECTION 6(c) IS NOT APPLICABLE TO RESIDENTS OF QUEBEC.
THE LIMITED WARRANTY DOES NOT APPLY:
- to normal wear and tear;
- if the Product was not purchased from FitMyFoot or its authorized retailers;
- to damage caused by misuse, moisture or liquids, proximity or exposure to heat, accident, abuse, neglect or misapplication,
- to physical damage to the Product;
- to any software, whether or not supplied by FitMyFoot.
Returning the Product. FitMyFoot is the provider of this Limited Warranty. FitMyFoot’s warranty contact information can be found at https://FitMyFoot.com/pages/contact-us. You may need to provide a proof of purchase of the Product, in the form of the purchase invoice sent to you by FitMyFoot or an invoice from an authorized seller of the Product, to evidence that you are the original purchaser of the Product. In the event you return the Product to FitMyFoot outside of the Warranty Period, FitMyFoot’s standard replacement terms and charges may apply. FitMyFoot may limit the Limited Warranty to the country where FitMyFoot or its authorized seller sold the Product to you. You may be responsible for shipping, handling, or other costs if you request warranty services not in the country of original purchase.
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. EXCEPT AS SET OUT IN THIS LIMITED WARRANTY AND AS PERMITTED BY APPLICABLE LAWS, FitMyFoot SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, ENDORSEMENTS, AND CONDITIONS OF ANY KIND (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THIS AGREEMENT, THE SITE AND ALL PRODUCTS, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (A) WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, OR DURABILITY; (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT A FitMyFoot KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); OR (C) WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE). WHERE IMPLIED WARRANTIES CANNOT BE DISCLAIMED BY APPLICABLE LAW, SUCH IMPLIED WARRANTIES ARE LIMITED TO THE DURATION OF THIS 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 8 IS NOT APPLICABLE TO RESIDENTS OF QUEBEC.
By placing an Order with FitMyFoot, you acknowledge that the Product is not intended for persons with: (i) severe foot, ankle, leg, hip or other biomechanical deformities; and/or (ii) circulatory disorders resulting in infections or foot ulcerations. If you have a serious foot, ankle, leg, hip or biomechanical condition, consult your podiatrist or health professional before using. Stop using the Product and consult a health professional if you experience persistent pain, discomfort or swelling.
You also acknowledge that FitMyFoot is not a health care provider and the contents of FitMyFoot’s website, written materials, or product information is not medical advice. Never avoid or delay obtaining medical or health advice from a qualified health professional based upon something you have seen or read in FitMyFoot’s materials.
RELEASE, WAIVER AND LIMITATION OF LIABILITY
- YOU ACKNOWLEDGE AND AGREE THAT FitMyFoot, ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, LICENSORS, SUPPLIERS, SERVICE PROVIDERS, RESELLERS, AND DISTRIBUTORS (COLLECTIVELY, “FitMyFoot” IN THIS SECTION 10) WILL IN NO WAY BE LIABLE TO YOU FOR ANY GENERAL, PECUNIARY, NON-PECUNIARY, INDIRECT, ECONOMIC, SPECIAL, COMMERCIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, LOST DATA, LOSS OF OPPORTUNITY, DAMAGES CAUSED BY DELAYS OR A FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF PROPERTY, OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY PRODUCT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) AND EVEN IF SUCH PERSON/ENTITIES IS/ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
- IN NO EVENT SHALL FitMyFoot’S TOTAL LIABILITY TO YOU OR TO ANY THIRD PARTY RELATING TO OR ARISING FROM THIS AGREEMENT OR ANY PRODUCT WITH RESPECT EXCEED THE PURCHASE PRICE OF THE PRODUCT THAT YOU PURCHASED OR THE COST OF REPAIRING OR REPLACING THE PRODUCT, WHICHEVER IS GREATER.
- THE LIMITATIONS OF LIABILITY SET OUT IN SECTIONS 10(a) AND 10(b) 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 FitMyFoot HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 10 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. SECTION 10 IS NOT APPLICABLE TO RESIDENTS OF QUEBEC.
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.
Enurement. These terms and conditions and the rights and duties herein will be binding on and enure to the benefit of you and FitMyFoot and their successors and permitted assigns (including your heirs, executors and administrators).
Force Majeure. No FitMyFoot 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.
Entire Agreement. This Agreement, together with the Invoice and any other materials expressly referred to herein, constitutes the complete and exclusive statement of all of the terms, conditions, representations and warranties between you and FitMyFoot with respect to the purchase and sale of any Product offered by FitMyFoot, and supersedes and replaces all other oral and written communications between the parties or otherwise relating to the subject matter of this Agreement.
Amendments. 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 FitMyFoot in an instrument that expressly refers to this Agreement.
No Implicit Waivers or Novations. The failure by FitMyFoot 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 FitMyFoot 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 FitMyFoot to assert any rights at any time thereafter.
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.
Non-Application. The International Sale of Goods Act (British Columbia) and the United Nations Convention on Contracts for the International Sale of Goods, or any other similar legislation of any other jurisdiction that may be excluded by a similar reference, will not apply in any way to this Agreement or to the transactions contemplated by this Agreement.
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. SECTION 13(e) IS NOT APPLICABLE TO RESIDENTS OF QUEBEC.
Arbitration. 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 Product (collectively, the “Dispute“), will be solely and exclusively referred to, and finally resolved by, binding arbitration pursuant to the provisions of the British Columbia Arbitration Act and any amendments thereto. Such arbitration shall be conducted pursuant to the Domestic Commercial Arbitration Rules of Procedure of the British Columbia International Commercial Arbitration Centre then in force (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 FitMyFoot. 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 FitMyFoot 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 FitMyFoot 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.
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.
SECTION 14 IS NOT APPLICABLE TO RESIDENTS OF QUEBEC.
Attornment. You waive: (i) any right to object to venue or jurisdiction based on inconvenient forum or for any other reason, and (ii) 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. SECTION 15 IS NOT APPLICABLE TO RESIDENTS OF QUEBEC.
Governing Law. 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. SECTION 16 IS NOT APPLICABLE TO RESIDENTS OF QUEBEC.
Updates and Supplementary Terms. This Agreement may be updated or supplemented by FitMyFoot from time to time. For Products purchased in specific countries, unique terms may replace or modify this Agreement if so provided with the Product 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. SECTION 17 IS NOT APPLICABLE TO RESIDENTS OF QUEBEC.
Notice to California Users. If you are a California resident, you may have this Agreement mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms. Under California Civil Code Section 1789.3, California website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.
TERMS OF SERVICE
- The Service allows you to, among other features and functionality, (i) submit digital text, photos, scans, impressions, videos and other content and media (“Content”) in connection with customizing, ordering and purchasing products (each a “Product”) manufactured, marketed, distributed and/or sold by FitMyFoot; and (ii) may provide services related to tracking the status of the Product you have ordered.
- Subject to your compliance with the terms and conditions set out in these Terms of Service, FitMyFoot hereby grants to you a personal, limited, non-exclusive, non-transferrable and freely revocable license to access and use the Service.
- You hereby acknowledge and agree that any Content submitted by you through the Service will be disclosed to and be accessible by FitMyFoot.
- The Service may allow you access to third party websites or applications. By using the Service, you expressly relieve FitMyFoot from any and all liability arising from your use of any such third party website or application. FitMyFoot has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party.
- All right, title, interest and ownership and intellectual property rights in and to the trademarks of FitMyFoot and the Service, other than Content submitted by you through the Service, are and will remain the property of FitMyFoot or its software or content suppliers. FitMyFoot reserves all rights not expressly granted in and to the Service.
- The Service is provided to you “AS IS” for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed or otherwise exploited for any purpose other than use as intended through the provided functionality of the Service.
- Your Content is hosted by third party service providers that are not owned or controlled by FitMyFoot. FitMyFoot has no control over, and assumes no responsibility for, the content, privacy policies or practices of any third parties. Your content will be stored in the United States if you access the Service in the United States and in Canada if you access the Service from any jurisdiction other than the United States.
- FitMyFoot reserves the right to terminate this Terms of Service or modify, suspend or discontinue the Service, or any portion thereof, at any time and for any reason, with or without notice. FitMyFoot shall have no liability whatsoever for any damages, liabilities, losses or any other consequences that you may incur as a result of any such termination, modification, suspension or discontinuance.
In order to submit Content through the Service, you will be asked to provide your contact information, including your name, email address and phone number. You must provide complete and accurate information to FitMyFoot through the Service.
General Use of the Service – Permissions and Restrictions
- You may not use the Service to infringe any third party’s privacy rights, publicity rights, defamation rights, copyrights, trademark rights, contract rights or any other rights of any person.
- You agree not to use or launch any automated system, including without limitation any “robot” or “spider” that accesses the Service. You agree not to collect or harvest any personally identifiable information, from the Service or the Content. You agree not to solicit, for commercial purposes, any other users of the Service.
- You may not interfere with, or attempt to interfere with, the Service or the networks or services connected to the Service, whether through the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit such activity.
- You must use the Service in a manner consistent with any and all applicable laws and regulations. FitMyFoot reserves the right to investigate and take appropriate legal action against anyone who, in FitMyFoot’s sole discretion, violates this provision, including without limitation, banning the violating computer or mobile device from accessing the Service.
- FitMyFoot does not guarantee any confidentiality with respect to any Content uploaded by you, regardless of whether such Content is published or shared. You shall be solely responsible for your own Content and the consequences of submitting it while using the Service. In connection with Content, you affirm, represent, and warrant that you own or have the necessary licenses, rights, consents and permissions to use and authorize FitMyFoot to use all copyright or other proprietary rights in and to any and all Content to enable inclusion and use of the Content in the manner contemplated by the Service and these Terms of Service.
- For clarity, you retain all of your ownership rights in your Content. However, by submitting Content, you hereby grant FitMyFoot an irrevocable, worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use, host, reproduce, distribute, display, perform, modify and create derivative works of the Content in connection with providing the Service to you and to other users of the Service.
- FitMyFoot retains the right to use Aggregated Data generated by you and other users of the Service to generate Service usage statistics, for internal use, and for sharing with others on a selective basis. “Aggregated Data” means records, including but not limited to Content, which have been stripped of information potentially identifying customers, landing pages or end-users, and which have been manipulated or combined to provide generalized, anonymous information. You hereby acknowledge and agree that Aggregated Data incorporating your Content may be disclosed to and be accessible by third parties.
- FitMyFoot does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and FitMyFoot reserves the right to remove Content if properly notified that such Content infringes on another’s intellectual property rights.
- You acknowledge that any ideas, suggestions, concepts, processes or techniques which you provide to FitMyFoot related to the Service or FitMyFoot or its business (“Feedback”) shall become FitMyFoot’s property without any compensation or other consideration payable to you by FitMyFoot, and you do so of your own free will and volition. FitMyFoot may or may not, in its sole discretion, use or incorporate the Feedback in whatever form or derivative FitMyFoot may decide into the Service or its other products and services, or any future versions or derivatives of the foregoing. You hereby assign all rights on a worldwide basis in perpetuity to FitMyFoot in any Feedback and, as applicable, waive any moral rights therein.
Access Termination Policy
FitMyFoot may ban a computer or mobile device from accessing the Service and/or terminate a user’s access to the Service if, under appropriate circumstances, they are determined by FitMyFoot to be an infringer of these Terms of Service.
YOU AGREE THAT YOUR USE OF THE SERVICE AND ALL CONTENT FORMING PART OF OR RELATED TO THE SERVICE, INCLUDING WITHOUT LIMITATION ANY USER SUBMISSIONS AND CONTENT, SHALL BE AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, FitMyFoot, AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED OR STATUTORY, IN CONNECTION WITH THE SERVICE AND YOUR USE THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, HARDWARE COMPATIBILITY, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT. FitMyFoot MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF ANY SITES, APPLICATIONS, PAGES OR SERVICES LINKED TO OR THROUGH THE SERVICE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) ANY ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN THE SERVICE, (II) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE OR ANY CONTENT, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (V) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, OR (VI) ANY ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE. FitMyFoot DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR, ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED SERVICE OR WEBSITE FEATURES IN ANY SPONSOR MESSAGE, ADVERTISING OR BANNER MESSAGE. FitMyFoot WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTY PROVIDER OF PRODUCTS OR SERVICES.
IN NO EVENT SHALL FitMyFoot, AND ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM YOUR USE OF OR ACCESS TO THE SERVICE, INCLUDING WITHOUT LIMITATION RESULTING FROM ANY (I) ANY ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN THE SERVICE, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE OR ANY CONTENT, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (V) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT FitMyFoot IS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
YOU SPECIFICALLY ACKNOWLEDGE THAT FitMyFoot SHALL NOT BE LIABLE IN ANY WAY FOR ANY CONTENT INCLUDING BUT NOT LIMITED TO ANY ERRORS OR OMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
The Service is offered by FitMyFoot from its facilities in British Columbia, Canada. FitMyFoot makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.
You agree to defend, indemnify and hold harmless FitMyFoot, and its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts and expenses (including but not limited to attorney’s fees) arising from: (i) your use of or access to the Service; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property or privacy right; or (iv) any claim that your Content submitted through the Service or otherwise to FitMyFoot caused damage to a third party. This defence and indemnification obligation will survive these Terms of Service and your use of the Service.
If you download, purchase or otherwise acquire any products or services of FitMyFoot, including without limitation the Service, through the “App Store” provided by Apple Inc. (“Apple”) or are otherwise using the Service through an iOS device, you agree to be bound by the additional terms and conditions set forth below:
- You acknowledge that these Terms of Service are concluded between you and FitMyFoot only, and not with Apple, and that FitMyFoot, not Apple, is solely responsible for the products or services of FitMyFoot, including without limitation the Service and the content thereof.
- Notwithstanding anything to the contrary in these Terms of Service, the license granted to you hereunder with respect to the Service is limited to a non-transferable license to use the Service on any iOS device that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service.
- FitMyFoot is solely responsible for any product warranties, if any, made under these Terms of Service. In the event of any failure of the Service to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Service, if any, to you. You acknowledge and agree that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service, and that, subject to the terms of these Terms of Service, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be FitMyFoot’s sole responsibility.
- You acknowledge that FitMyFoot, not Apple, is, subject to the terms of these Terms of Service, responsible for addressing any claims made by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You acknowledge that, in the event of any third party claim that the Service or your possession and use of the Service infringes that third party’s intellectual property rights, FitMyFoot, not Apple, will, be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Service.
- You represent and warrant that: (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as a third party beneficiary thereof.
Ability to Accept Terms of Service
You affirm that you are either older than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service.
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by FitMyFoot without restriction.
The Service may use information and data transmission networks operated by third parties to send data, information and Content from a computer or mobile device to FitMyFoot’s servers, and to serve data, information and Content back to such computer or mobile device. Depending on your wired or wireless data or similar plan with such third party operators, you may incur charges from such third party operators for use of its information and data transmission networks. You are solely responsible for any and all costs, including without limitation wireless and cellular data costs, you may incur as a result of the usage of the Service and/or as a result of data, information and Content submitted or received by your computer or mobile device through the Service.
If there is any dispute between you and FitMyFoot about or involving these Terms of Service or the Service, you hereby agree that the dispute shall be governed by and construed in accordance with the laws of the Province of British Columbia, Canada, without regard to its conflict of law provisions. You hereby agree to submit to the exclusive jurisdiction of the courts in Vancouver, British Columbia with respect to any claim, proceeding or action relating to or otherwise arising out of these Terms of Service or your access to or use of the Service, howsoever arising, provided always that FitMyFoot may seek and obtain injunctive relief (or an equivalent type of urgent legal relief) in any jurisdiction.
If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and FitMyFoot’s failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. FitMyFoot reserves the right to amend these Terms of Service at any time and without notice, and it is your responsibility to review these Terms of Service for any changes. Your use of the Service following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms.
Instructions for contacting FitMyFoot can be found at the following website: https://FitMyFoot.com/pages/contact-us.