Terms of Sale
Last Modified April 27, 2016. Replaces March 25, 2016 version in its entirety.
IMPORTANT — READ CAREFULLY BEFORE PURCHASING: This Terms of Sale Agreement (“Agreement”) is a legal agreement between you and VersaMe, Inc. (“VersaMe”) governing your purchase or use of any products from VersaMe, including the Starling® and any accessories (the “Products”). To the extent the Products contain or consist of software in any form (“Software”), such Software is licensed to you, not sold, and only in accordance with the section entitled “Software License” below. Terms such as “sell” and “purchase,” as used in this Agreement, apply only to the extent the Products consist of items other than Software.
By purchasing a Product, you agree to be bound by the terms of this Agreement. IF YOU DO NOT AGREE TO THESE TERMS OF SALE, DO NOT PURCHASE ANY PRODUCT FROM VERSAME. You also affirm that you have reached the age of majority in the state or province in which you reside.
VersaMe is registered to do business and operates in North Carolina, and you agree that this Agreement is governed by the laws of North Carolina and is subject to arbitration per Dispute Resolution section below.
By placing an order with VersaMe, you agree that: (i) any credit card information supplied by you is true and complete; and (ii) you will pay the applicable price listed, as well as any shipping and handling charges and applicable taxes. Products purchased by you are for personal or gift use and not for commercial use.
VersaMe reserves the right not to accept your order for any reason or no reason. VersaMe reserves the right to restrict multiple quantities of a Product being shipped to any one customer or postal address.
2. SHIPPING AND DELIVERY.
VersaMe will pack the Products in accordance with its standard practices. You can choose the method of shipment and timing of delivery for Products ordered, and you will be charged shipping and handling charges accordingly. Title to the Products (except to the extent the Products consist of Software) and risk of loss will pass to you upon VersaMe’s delivery of the Products to the carrier. You acknowledge that all scheduled shipment dates are estimates only. VersaMe will make reasonable efforts to meet the scheduled shipment dates, but in no event will VersaMe be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery.
3. SOFTWARE LICENSE.
VersaMe grants to you a nonexclusive, nontransferable license to use the Software, in executable form, solely as embedded in the Products, solely for your internal, non-commercial use. You may not copy or modify the Software. You acknowledge that the Software contains trade secrets of VersaMe, and, in order to protect such trade secrets, you agree not to disassemble, decompile, or reverse engineer the Software nor permit any third party to do so, except to the extent such restrictions are prohibited by law. VersaMe reserves all rights and licenses in and to the Software not expressly granted to you under this Agreement.
4. VERSAME’S INTELLECTUAL PROPERTY.
VersaMe owns trademarks, registered and unregistered. “VersaMe,” “Starling,” VersaMe’s logos, and variations thereof found on the Site are trademarks owned by VersaMe and all use of these marks inures to the benefit of VersaMe.
5. LIMITED PRODUCT WARRANTY.
VersaMe warrants to the original purchaser that your Product shall be free from defects in materials and workmanship under normal use for a period of one year from the date of purchase, except that if you reside in the European Economic Area (“EEA”) and you purchased your Starling product in the EEA, the warranty period is two years from the date of purchase (the “Warranty Period”). VersaMe does not warrant that the operation of the Product will be uninterrupted or error-free. VersaMe is not responsible for damage arising from failure to follow instructions relating to the Product’s use. This Limited Warranty does not cover software embedded in the Product or the services VersaMe provides to owners of the Product. Refer to the Software License section above and VersaMe’s Terms of Service thestarling.wpengine.com/legal/terms-of-service respectively, for details of your rights with respect to their use.
If a hardware defect arises and a valid claim is received by VersaMe within the Warranty Period, VersaMe will, at its option and to the extent permitted by law, either (1) repair the Product at no charge, using new or refurbished replacement parts, or (2) replace the Product with a new or refurbished Product. In the event of a defect, to the extent permitted by law, these are your sole and exclusive remedies. Shipping and handling charges may apply except where prohibited by applicable law. This Limited Warranty is valid only in the jurisdictions where the Products are sold by VersaMe itself or through its authorized reseller or agent and is valid to the extent permitted by the applicable laws of such jurisdictions. Any replacement hardware product will be warranted for the remainder of the original warranty period or thirty days, whichever is longer, or for any additional period of time that may be applicable in your jurisdiction.
To obtain warranty service, you must deliver the Product, in either its original packaging or packaging providing an equal degree of protection, to VersaMe, Warranty Department:
9121-108 Sam Furr Rd, Ste 129
Huntersville, NC 28078
In accordance with applicable law, VersaMe may require that you furnish proof of purchase details and/or comply with registration requirements before receiving warranty service. For specific instructions on how to obtain warranty service on your Product, visit www.support.versame.com.
This Limited Warranty applies only to the Product manufactured by or for VersaMe that can be identified by the “VersaMe” trademark, trade name, or logo affixed to it. The Limited Warranty does not apply to any (a) VersaMe services other than the Product, (b) non-VersaMe hardware product, (c) consumables (such as batteries), or (d) software, even if packaged or sold with the Product or embedded in the Product. This Limited Warranty does not apply to a Product or part of the Product that has been altered or modified (e.g., to alter functionality or capability) by anyone who is not a representative of VersaMe or if the Product is inserted or installed in a casing not provided by VersaMe. In addition, this Limited Warranty does not apply to damage caused by: (a) use with non-VersaMe products; (b) accident, abuse, misuse, flood, fire, earthquake or other external causes; (c) operating the Product outside the permitted or intended uses described by VersaMe or with improper voltage or power supply; or (d) service (including upgrades and expansions) performed by anyone who is not a representative of VersaMe. No VersaMe reseller, agent, or employee is authorized to make any modification, extension, or addition to this Limited Warranty. If any term of this Limited Warranty is held to be illegal or unenforceable, the legality or enforceability of the remaining terms shall not be affected or impaired. Consumers in some jurisdictions may have legal rights under applicable national legislation governing the sale of consumer goods. Such rights are not affected by the warranties in this Limited Warranty.
6. DISCLAIMER OF ALL OTHER WARRANTIES.
EXCEPT AS PROVIDED IN PARAGRAPH 5, VERSAME HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PRODUCT OR ITS PERFORMANCE, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
7. LIMITATION OF LIABILITY.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL VERSAME BE LIABLE FOR PERSONAL INJURY, OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, LOST PROFIT, LOST BUSINESS, OR PUNITIVE DAMAGES ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH YOUR PURCHASE, USE OR INABILITY TO USE, PERFORMANCE, OR OPERATION OR INABILITY TO OPERATE THE PRODUCTS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, WARRANTY, PRODUCT LIABILITY, OR OTHERWISE) AND EVEN IF VERSAME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
8. DISPUTE RESOLUTION.
8.1.1 Process. If you have a claim or dispute arising directly or indirectly out of or related to this Agreement or any Products that has not been resolved to your satisfaction by the customer service team at firstname.lastname@example.org, you agree to notify VersaMe through the Informal Claim Resolution Process described below. If the claim or dispute you have with VersaMe remains unresolved after the Informal Claim Resolution Process (or if VersaMe is unable to resolve a claim or dispute it has with you), then we both agree to resolve the claim or dispute through binding arbitration or small claims court (or its equivalent), rather than in courts of general jurisdiction, as described in the Formal Claim Resolution Process section below.
8.1.2 ARBITRATION. IN ARBITRATION, A CLAIM OR DISPUTE IS RESOLVED BY A NEUTRAL ARBITRATOR, RATHER THAN A JUDGE OR JURY. BOTH OF US UNDERSTAND THAT WE ARE CHOOSING TO RESOLVE ANY CLAIM OR DISPUTE THROUGH ARBITRATION, AND THE RIGHT WE MAY HAVE HAD TO LITIGATE A CLAIM OR DISPUTE IN COURT IS BEING WAIVED.
8.1.3 NO CLASS ACTION OR CONSOLIDATED PROCEEDINGS. ANY ARBITRATION THAT OCCURS WILL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS, CLASS ACTION SUITS, OR CONSOLIDATED PROCEEDINGS ARE NOT PERMITTED AS A WAY TO RESOLVE ANY CLAIM OR DISPUTE.
8.1.4 Scope. This agreement to arbitrate claims and disputes between us is intended to be broad and includes, without limitation, (i) claims or disputes relating to any aspect of our relationship, including the Products or services offered or purchased or any other relationship between us, whether based in contract, tort, statute or any other legal theory, (ii) claims or disputes directly or indirectly arising from conduct or events that occurred prior to the effective date of this Agreement (including, without limitation, claims relating to advertising), or after its termination, (iii) claims or disputes subject to class action litigation in which you are not currently a member of a certified class, and (iv) claims or disputes with any agent, employee, successor or assign of either of us (all such claims and disputes are referred to collectively as “Claims”). This agreement to arbitrate does not, however, include Claims pertaining to intellectual property rights, as described more fully in Paragraph 8.3.14 below.
8.2 INFORMAL CLAIM RESOLUTION PROCESS:
8.2.1 Initiate Informal Claim. If you believe a Claim has not been resolved to your satisfaction by VersaMe’s customer service team (which can be reached by telephone Monday through Friday, 8:00 a.m. through 6:00 p.m. Eastern Time, at 650-600-1231), you may start the Informal Claim Resolution Process by e-mailing email@example.com to receive a Notice of Dispute form to complete and return to firstname.lastname@example.org. A VersaMe representative will then contact you and attempt to assist in the resolution of your Claim. If VersaMe seeks to resolve a Claim it has with you, we will start the Informal Claim Resolution Process by emailing a copy of the Notice to the email address you have on file with us.
8.2.2 Waiting Period. Neither of us may start the Formal Claim Resolution Process until at least sixty days have passed since the Informal Claim Resolution Process has begun; provided, however, either party may seek interim injunctive relief in a case involving intellectual property, as described in Paragraph 8.3.14 below, at any time before or after the Informal Claim Resolution Process has begun.
8.3 FORMAL CLAIM RESOLUTION PROCESS:
8.3.1 Arbitration under the FAA. If a Claim is not resolved through the Informal Claim Resolution Process described above, the Claim must then be submitted to binding arbitration. This agreement to arbitrate is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act (“FAA”).
8.3.2 AAA Rules and Initiation. The arbitration will be administered by the American Arbitration Association (“AAA”), and will follow the rules and procedures set forth in (i) the AAA’s Commercial Arbitration Rules and (ii) if applicable based on the nature of the Claim and the parties, the AAA’s Supplementary Procedures for Consumer-Related Disputes in effect at the time the Formal Claim Resolution Process begins (collectively, “AAA Rules”). The arbitrator is bound by the terms of this Dispute Resolution section. If there is a conflict between any term of the AAA Rules and a term of this Dispute Resolution section, then the term of this Dispute Resolution section shall govern. The AAA Rules, along with the forms and instructions needed to initiate an arbitration, are available online at www.adr.org or by telephoning the AAA at 1-800-778-7879. An arbitration case can be initiated online at www.adr.org.
8.3.3 Issues for Arbitrator. All issues regarding a Claim are for the arbitrator to decide, except that any issues relating to the interpretation and enforcement of these arbitration provisions (including the interpretation and enforceability of the Class Action Waiver described below) will be decided by a court and not by an arbitrator.
8.3.4 Location. Unless VersaMe and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your primary residence.
8.3.5 Process. If your Claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your Claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
8.3.6 Arbitration Fees. Except as provided below, VersaMe will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the Formal Claim Resolution Process (collectively, “Arbitration Fees”). However, if the arbitrator finds that either the substance of the Claim or the relief being sought is frivolous or the Claim was brought for an improper purpose (as determined under the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of Arbitration Fees will be governed by the AAA Rules, and you will be required to reimburse VersaMe for any amounts disbursed by it that are determined to be your obligation to pay.
8.3.7 Award; Costs. The arbitrator can award any remedies that could be awarded by a court of law or equity, and the award shall be final and binding on the parties and may be entered as a judgment in court. Except as provided in this Paragraph 8.3.7 and Paragraph 8.3.9, each party will bear the cost of its own attorneys, experts, witnesses, and other expenses; provided, however, that if the arbitrator finds in your favor with respect to a Claim and issues you an award that is greater than the value of VersaMe’s last written settlement offer made to you before the arbitrator was selected, then: (a) VersaMe will pay you the greater of (i) the amount of the award or (ii) $7,500 (“Minimum Payment”); plus (b) if you have employed an attorney to assist you in the arbitration of your Claim, VersaMe will (i) pay twice the amount of the attorney’s reasonable fees (but in no event greater than $20,000), and (ii) reimburse any documented out-of-pocket expenses that the attorney reasonably accrued for investigating, preparing, and pursuing the Claim in arbitration (“Attorney Payment”). If VersaMe did not make a written offer to settle the Claim before an arbitrator was selected, you will be entitled to receive the Minimum Payment and the Attorney Payment if the arbitrator awards you any relief on your Claim.
8.3.8 Additional Arbitrator Decisions. The arbitrator can resolve disputes as to the payment and reimbursement of Arbitration Fees and the amount of any Minimum Payment or Attorney Payment at any time during the arbitration proceeding or upon request by either party made within 14 days after the arbitrator’s ruling on the merits of the Claim.
8.3.9 Attorneys’ Fees. The right to the Attorney Payment supplements the right to attorneys’ fees you might have under applicable law. That is, if you would be entitled to a larger amount of attorneys’ fees under applicable law, the Attorney Payment provision does not preclude the arbitrator from awarding you that amount; provided, however, that you may not recover duplicative awards of attorneys’ fees or costs. VersaMe will be entitled to an award of its attorneys’ fees and expenses in the arbitration only if the arbitrator determines that VersaMe would be entitled to such relief under applicable law were the Claim to have been resolved in court.
8.3.10 Individual Relief Only. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
8.3.11 CLASS ACTION WAIVER. YOU AND VERSAME AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER FOR ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING THE GENERAL PUBLIC OR OTHER PERSONS SIMILARLY SITUATED TO YOU. FURTHER, UNLESS BOTH YOU AND VERSAME AGREE OTHERWISE,THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON OR ENTITY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE, CLASS OR CONSOLIDATED PROCEEDING.
The foregoing agreements and waivers are referred to herein collectively as the “Class Action Waiver.” The parties agree that the Class Action Waiver is a material term of and nonseverable from the Dispute Resolution section. If the Class Action Waiver is found to be unenforceable, then the entire Dispute Resolution section (other than Paragraphs 8.3.15 (Applicable Law) and 8.3.16 (Jurisdiction) below) shall be null and void.
8.3.12 No Jury; Status. No Claim submitted to arbitration may be heard by a jury, nor may a Claim be brought in the capacity of a “private attorney general.”
8.3.13 Future Changes to Agreement. Notwithstanding any provision in the Agreement to the contrary, we agree that if VersaMe makes any future material change to this Dispute Resolution section, you may reject any such change by emailing us notice within 30 days of the change to email@example.com. If you reject any such change, you are nevertheless agreeing that you will resolve any Claim in accordance with the terms of this Dispute Resolution section as written without such change.
8.3.14 Intellectual Property Disputes; Small Claims Court. Notwithstanding any provision in this Dispute Resolution section to the contrary, (i) a Claim involving intellectual property rights (including, without limitation, patent rights, copyrights, trademarks, service marks or trade secrets) may only be decided by a court of competent jurisdiction within Mecklenburg County in the State of North Carolina, and (ii) if your Claim is not resolved during the Informal Claim Resolution Process, after the waiting period in Paragraph 8.2.2, you may pursue the Claim in small claims court or its equivalent (provided the Claim is for less than the claim limit for such court) rather than arbitrate so long as such court retains jurisdiction over the Claim and such Claim is being made solely on your behalf and not on behalf of anyone else. If the Claim is transferred or appealed to a different court at any time, VersaMe reserves the right to elect to have the Claim resolved by arbitration as provided above.
8.3.15 Applicable Law. Any disputes arising directly or indirectly out of or related in any way to the Agreement or Products shall be governed by the laws of the State of North Carolina (without regard to its choice of law rules and without regard to conflicts of laws principles) and by the FAA.
8.3.16 Jurisdiction. YOU AND VERSAME AGREE THAT ALL ACTIONS OR PROCEEDINGS COGNIZABLE IN COURT IN ACCORDANCE WITH THE TERMS OF THIS DISPUTE RESOLUTION SECTION THAT ARISE DIRECTLY OR INDIRECTLY OUT OF OR ARE RELATED TO THE AGREEMENT OR THE PRODUCTS SHALL TAKE PLACE IN THE STATE AND FEDERAL COURTS OF MECKLENBURG COUNTY IN THE STATE OF NORTH CAROLINA. EACH PARTY HEREBY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION AND WAIVES ANY CLAIM THAT THESE COURTS ARE AN INCONVENIENT OR IMPROPER FORUM. ALL ACTIONS OR PROCEEDINGS SEEKING TO COMPEL COMPLIANCE WITH THE TERMS OF THE DISPUTE RESOLUTION SECTION, INCLUDING ACTIONS SEEKING TO STAY PROCEEDINGS PENDING RESOLUTION OF CLAIMS IN ACCORDANCE WITH THE ARBITRATION AND OTHER REQUIREMENTS OF SAID SECTIONS, AND THE CONFIRMATION, MODIFICATION, OR VACATION OF ANY AWARD, SHALL BE SUBJECT TO THE FOREGOING JURISDICTION PROVISIONS.
8.3.17 No Preclusive Effect. No award or finding or stipulation of fact by the arbitrator will have any preclusive or collateral estoppel effect in any other arbitration or court, unless it involves the exact same parties.
8.3.18 Severability. With the exception of Paragraph 8.3.11 (Class Action Waiver) above, if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, then the balance of this Dispute Resolution section shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained herein.
This Agreement shall constitute the complete and exclusive agreement between you and VersaMe. VersaMe may modify this Agreement at any time. This Agreement may not be modified by you except in a writing duly signed by you and an authorized representative of VersaMe. The failure by VersaMe to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be severable only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.