Moxie Rental Program Agreement Terms and Conditions (“Rental Agreement”)
By reviewing this Rental Agreement, you have acknowledged that you have read and understood this Rental Agreement and agree to be bound by it. If you do not accept this Rental Agreement, then you may not use the MOXIE robot, accessories and/or Moxie Parent App (collectively, the “MOXIE Product”).
THESE RENTAL TERMS INCLUDE 1) A CLASS ACTION WAIVER (A WAIVER OF YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT) AND 2) AN ARBITRATION CLAUSE.
1. Rental Agreement Process / Payment
You must be 18 years of age and reside in the United States and/or the District of Columbia in order to rent the MOXIE Product. In order to rent the MOXIE Product, you need to have a valid credit card on file at the EMBODIED website and this credit card needs to remain on file and valid throughout the Term of this Rental Agreement (hereinafter the “Rental Term”).
Rental Period - You must agree to a minimum of one month Rental Term in order to rent the MOXIE Product (referred to as the “Minimum Rental Period”). The first rental period begins on the day after the MOXIE Product is delivered to your address (the “Delivery Date”). The first rental month will end on the previous calendar day of the following month after the Delivery Date. The remaining rental periods may begin on the same calendar day as the first rental period.
Recurring Billing – The monthly rental fee (e.g., the “Rental Fee”) for each subsequent rental period will be automatically charged in advance and will be initiated on the Rental Begin Date (referred to as the “Charge Date”). In some circumstances, the Charge Date may be delayed for business, technical or legal purposes. You agree that EMBODIED is authorized to charge your card the Rental Fee plus any applicable taxes on the Charge Date on a monthly basis until you cancel this Rental Agreement. Sales taxes and/or other applicable taxes will be calculated based on your shipping address. Your account at moxierobot.com will show your account details. It is your responsibility to keep your contact information and payment information up-to-date.
A customer may cancel the rental under the Rental Agreement, but must abide by the cancellation terms set forth below and return the MOXIE Product according to the return procedure outlined below. Customer will be charged the recurring monthly rental fee for each month until the Customer cancels the Rental Agreement and returns the MOXIE Product through an Embodied approved carrier using Embodied approved packaging. You will be renting the MOXIE Product on a monthly basis.
By providing your credit or payment card information, you agree that EMBODIED is authorized to immediately charge your credit or payment card for 1) a first month rental payment 2) a security deposit and 3) a cleaning and reconditioning fee. Below is an example of the Rental Process:
- Customer chooses a Moxie Rental.
- During checkout at the Embodied website, the customer agrees to the Rental Agreement and charging of the Rental Fee.
- Customer’s credit card initially charged for first month rental payment, a security deposit, and a cleaning and reconditioning fee.
- After first month, the customer’s credit card will be charged for a second month rental payment.
- After second month, the customer’s credit card will be charged for a third month rental payment.
The MOXIE Product will not be shipped until all initial charges (identified in item 3 above), has been approved by your credit or payment card issuer.
2. Term and Termination
Term - Your MOXIE Product rental will begin on the Delivery Date (as specified) above and will end on the date where 1) You cancel the Rental Agreement and 2) the MOXIE Product is received by the Embodied-specified carrier for return to Embodied or when otherwise terminated by either Party as provided below in this section.
Invalid Payment Card / Late Payments - In the event any charges to your credit or payment card are declined, you are responsible and must immediately provide a valid credit or payment card using your Embodied Account. If you fail to provide a valid credit or payment card within five (5) days, your security deposit will be forfeited, you shall be in default of the terms and conditions of this Rental Agreement, as defined below and your Moxie Product will be remotely disabled. If your payment is not received by Embodied within ten (10) business days after the due date, any payment rate shall bear interest at the maximum permitted by law and Embodied reserves the right to charge a late fee up to the maximum permitted by law. Acceptance of any payment by Embodied after its due date shall not constitute a waiver by Embodied of any of Embodied’s rights hereunder.
Termination - You may terminate this Rental Agreement at any time by cancelling your rental of the Moxie Product as described below. Embodied may terminate this Rental Agreement at any time and for any reason prior to the day at which the Moxie Product is shipped by Embodied’s identified carrier at the Embodied associated warehouse for delivery to you (e.g., the Ship Date) by refusing to fulfill a rental order. If your credit card has been charged, but your rental order has been rejected, Embodied will initiate a refund of your payment within three to five business days of the rental order rejection.
3. Customer Order Review
Embodied reserves the right to refuse rental orders or process the rental orders if there is any suspected fraud, unauthorized activity and/or illegal activity. If we reject your order due to suspected fraud, unauthorized activity or illegal activity, we may contact you at the email or the phone number listed that you have provided to us. We also reserve the right to refuse to ship to certain addresses that we have determined may be involved and/or associated with suspected fraud, unauthorized activity or illegal activity may screen received rental orders for fraud, unauthorized activity or illegal activity. Embodied further reserves the right to remotely disable the MOXIE Product and/or the Parent App if Embodied determines that there may be fraud, or other types of unauthorized or illegal activity.
4. MOXIE Product Condition
The MOXIE Product may be new or reconditioned at the sole discretion of Embodied. All items and/or accessories will be delivered to you in good condition. Embodied will attempt to ship the MOXIE Product in the timeframe identified in your order and/or provided to you when you placed your rental order. Any delivery timeframes are estimates made in good faith. In some circumstances, inventory may be limited, and thus MOXIE Product availability may be limited in some circumstances and not available for immediate shipment.
Product availability may be limited in some cases and not available for immediate shipment. We will take commercially reasonable steps to inform you in writing of any shipping delays that extend beyond the timeframe we provided at the time of purchase. We are not liable for any shipping delays due to factors outside of our reasonable control, including, but not limited to, bad weather, natural disasters, strikes, protests, government disruptions, etc. You shall inspect the MOXIE Product upon delivery and advise Embodied within three (3) business days if the MOXIE Product is not in good condition by emailing Embodied’s customer support representative at support@embodied.com, after which Embodied may deem that the MOXIE Product has been received in good condition.
5. Cancellation
Cancellation After Product Shipment and Receipt of Product. You may cancel this Rental Agreement at any time after the Ship Date by logging on to your account, following the cancellation procedures provided within your account and having the MOXIE Product delivered or provided to Embodied’s specified carrier. To cancel your rental after the MOXIE Product was shipped to you, you agree to return the MOXIE Product to us consistent with our instructions and using the shipping label that you will receive from us when you initiate the cancellation, as described below. Your cancellation will become effective on the date that MOXIE Product is shipped back to us (using an Embodied approved carrier in Embodied approved packaging).
Please note that if you cancel the Rental Agreement within six (6) months and do not return the MOXIE Product to Embodied, Embodied reserves the right to charge your credit or payment card for the replacement cost of the MOXIE Product. Embodied also reserves the right to remotely disable the MOXIE Product.
Cancellation by Embodied After Shipping. Embodied may terminate this Rental Agreement after the Ship Date for any reason upon thirty (30) days advance written notice to you. If you default, Embodied may also terminate this Rental Agreement after the Ship Date. Upon Termination by Embodied, Embodied reserves the right to electronically disable the MOXIE Product and/or the MOXIE mobile application.
6. Cleaning and Recondition Fee and Security Deposit
When you sign up for the MOXIE Rental Program, the Clean and Recondition Fee and the Security Deposit, (each in the amount specified on the Embodied website), will be charged to your credit or payment card in addition to the initial Rental Fee plus applicable taxes. The Clean and Recondition Fee is a one-time nonrefundable fee that covers our cost of cleaning and refurbishing the MOXIE Product. The Security Deposit will be refunded to you upon return of the MOXIE Product, less any charges resulting from your failure to comply with the provisions of these Terms and Conditions. You may not apply the Security Deposit to the rental amounts owed under these Terms and Conditions. Refund of the Security Deposit, less any charges resulting from your failure to comply with the provisions of these Terms and Conditions, will be credited to your credit or payment card within thirty (30) days after our receipt and satisfactory inspection of the MOXIE Product.
7. Use of MOXIE Product
You will use the MOXIE Product only for personal use and in accordance with its intended use. You will use the MOXIE Product pursuant to the written documentation supplied to you by Embodied with the MOXIE Product (e.g., the User Manual and/or the Quick Start Manual). You will maintain the MOXIE Product in accordance with all instructions included in any documentation received from Embodied (e.g., in the User Guide and/or the Quick Start Manual) and /or provided from Embodied in terms of updates and/or bulletins that may be periodically sent and/or mailed to you. At the end of the Rental Term, you will return the MOXIE Product to Embodied in the same condition as received, excepting normal wear and tear. You may not remove any warning, product and/or identification labels and/or markings from the MOXIE Product.
8. Return of Product Upon Cancellation
To return the MOXIE Product, you must log in to your account and follow the site instructions for requesting a rental cancellation. Our customer support team will contact you with return instructions and a Return Shipping Fee will be assessed and will need to be paid for by the Customer before a Return Merchandise Authorization (RMA) and return shipping label is provided. You will receive an invoice from Embodied for the Return Shipping Fee and you will need to go to Embodied’s website to complete payment for it. The MOXIE Product and accessories must be fully returned in the original packaging. If original packaging is no longer available, then you will need to purchase approved packaging (plus any applicable tax and shipping) to be sent to you to be used to return Moxie.It shall be your responsibility to ensure that MOXIE Product is properly packed and secured inside the packaging, including all accessories. Your cancellation of the Rental Agreement will not become effective until the Product is placed with Embodied’s specified carrier for delivery to us.
Please note that if, upon return to us, it is determined that the MOXIE Product has been damaged, is missing components, is not in a reusable condition and/or otherwise has signs of abuse, Embodied reserves the right to decline a refund request, we may charge a restocking fee or may otherwise reduce the amount of your security deposit that is returned to you. This is determined at Embodied’s sole discretion and is to take account of the above-mentioned damage, any missing components, and/or the amount of repair time it took to restore the MOXIE Product to working conditions.
9. Damage, Destruction and Loss
You shall bear all risk of destruction, loss or damage to the MOXIE Product from the time it is delivered to the shipping address you provided to the time that it is returned and received by Embodied. In the event of damage to the Product or Accessories from any cause, aside from normal wear and tear, you agree to pay to Embodied the cost of repair as determined by Embodied in its sole and absolute discretion (i.e., the Damage Fee) provided the Damage Fee for each item shall not be greater than the Replacement Cost (listed below) for each item, as applicable. If Embodied determines, in it sole discretion, that the damaged MOXIE product or accessories cannot be repaired (and thus need to be replaced), you agree to pay Embodied the cost of replacement as follows: (i) Power cord and adapter – twenty dollars ($ 20) plus applicable shipping costs and applicable taxes and (ii) entire MOXIE Product – Embodied retains the current security deposit and you are charged a new security deposit fee before the replacement MOXIE Product is shipped to you. You agree that the new Security Deposit will be charged to your credit or payment card. In the event that you fail to return the MOXIE Product at the end of the Rental Agreement, you agree that you will not be entitled to a refund of the new Security Deposit.
10. Ownership; Use
The MOXIE Product rented under this Rental Agreement remains the property of EMBODIED at all times. Customer SHALL NOT sublease or assign any rights to or for rental MOXIE Product. Customer will not permit any ownership labels to be removed, obscured or defaced. The MOXIE Product must only be used only by Customer or designee as stated on the face of the Rental Agreement. Specifically, you may only use the MOXIE Product under this Rental Agreement for Personal, Non-Commercial Use. If Customer moves the MOXIE Product outside the United States, Customer shall pay any costs arising from this change of location that occurred with or without EMBODIED's written consent.
If EMBODIED has given written consent for Customer to relocate Equipment outside the United States, Customer shall be responsible for all related cost including return shipping. Customer shall not make any alterations, additions or modifications to the MOXIE Product and shall use it only for the purpose and in the manner intended by the manufacturer and/or identified within this Rental Agreement. You shall not grant a security interest of any kind in the Moxie Product to any other person. You shall keep the Moxie Product free and clear from all levies, attachments, liens, and encumbrances. In the event that any person other than Embodied / Customer attempts to create or assert an interest in the MOXIE Product, you shall give immediate notice to Customer and shall take such action as Customer may require.
11. Limited Warranty Rights
Limited Warranty. This Limited Warranty gives you specific legal rights. You may also have other or additional legal rights under the laws of your state. The disclaimers, exclusions, and limitations of liability under this Limited Warranty will not apply to the extent prohibited by applicable law in your state. Please refer to warranty and related laws for your state to fully understand your legal rights. You as the Purchaser are the only ones with legal rights under this Limited Warranty. Embodied warrants the MOXIE Product from defects in materials and workmanship under normal use during the Rental Term of this Rental Agreement. EMBODIED MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND HEREBY EXPRESSLY DISCLAIMS ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. Should a Moxie Product be returned to EMBODIED during the Rental Term of this Rental Agreement, and EMBODIED determines that the Product is defective, EMBODIED will, at its sole discretion either (i) repair the Moxie Product or (ii) replace the Moxie Product or any defective components or parts with a new or refurbished Moxie Product, component or part.
Scope and Limitation of Limited Warranty. EMBODIED’s warranty obligations are limited to the repair or replacement of defective Moxie Products or parts thereof during the Rental Term of this Rental Agreement, as described above. This warranty does not cover customer training, installation, set-up or adjustment, any wireless signal or reception problems, and/or any reimbursement for loss of use or shipping cost.
What is Not Covered by Limited Warranty. The Limited Warranty does not apply to: (1) normal wear and tear associated with normal aging of the Moxie Product; (2) damage caused by incorrect or inappropriate use of the Moxie Product as defined by operating outside the Embodied Published Guidelines, including but not limited to improper care, maintenance, storage and/or cleaning of the Moxie Product; (3) damage caused by carelessness, casualties, accident, abuse, misuse, liquid contact, fire or other external cause; (4) dissatisfaction due to personal opinion of aesthetics, features or functionality; (5) cosmetic damages including, but not limited to dents, scratches or broken plastic unless these damages occurred to a defect in materials or workmanship; (6) damages caused by attempting to repair the Moxie Product (including upgrades) performed by individuals who are not authorized to repair the Moxie Product; (7) issues related specific Wi-Fi signal or reception problems, internet connectivity issues of your Wi-Fi router, or your smartphone or mobile communications device; or (8) if the Moxie Product has been modified to alter capability or functionality of the products without written permission of Embodied. The Warranty is void if a customer uses the Moxie Product with third-party parts or accessories.
This Limited Warranty does not apply to the non-electronic items shipped with the Moxie Product (e.g., any user guides or publications). This Limited Warranty is applicable in the United States only; any use of Moxie Product outside the United States voids the Warranty.
This Limited Warranty is not assignable. This Limited Warranty is only available to the original purchaser of the Rental Agreement (or if gifted the subscription holder) and is not transferrable.
This Limited Warranty only covers non-commercial, in-home and indoor use.
Disclaimer of Warranties. TO THE FULLEST EXTENT PERMITTED BY LAW, THE WARRANTY AND THE REMEDIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED. EMBODIED DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS, WARRANTIES AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER ARISING BY COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. TAMPERING WITH AND/OR OPENING UP THE PRODUCT VOIDS THE PRODUCT’S WARRANTY.
Limitation of Damages. IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS AND EXCLUSIONS, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EMBODIED OR ITS EMPLOYEES, AGENTS, OFFICERS, DIRECTORS OR SUPPLIERS BE RESPONSIBLE OR LIABLE IN CONTRACT, WARRANTY, TORT OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, GOODWILL, BUSINESS INTERRUPTION OR ANY OTHER LOSSES THAT ARISE DIRECTLY OR INDIRECTLY OUT OF YOUR USE OF THE PRODUCT. TO THE FULLEST EXTENT PERMITTED BY LAW, EMBODIED’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER SHALL NOT EXCEED THE TOTAL AMOUNT PAID FOR YOUR USE OF THE PRODUCT THAT CAUSED SUCH DAMAGE. CERTAIN STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION ARE NOT APPLICABLE TO RESIDENTS OF NEW JERSEY. WITH RESPECT TO RESIDENTS OF NEW JERSEY, EMBODIED IS NOT LIABLE FOR ANY DAMAGES ARISING FROM OR RELATING TO THE MOXIE PRODUCT UNLESS SUCH DAMAGES ARE THE RESULT OF EMBODIED’S NEGLIGENT, RECKLESS OR INTENTIONAL ACTS OR OMISSIONS AND TO THE FULLEST EXTENT PERMITTED BY LAW, EMBODIED IS NOT LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES.
12. Repair/Damage
Upon reasonable notice from Customer during the course of the Rental Term, EMBODIED will repair normal defects in material and additionally cover an operational or mechanical failure caused by a defect of the MOXIE Product. Normal wear and tear, theft, misplacement, reckless, abusive or intentional conduct is not covered by this Rental Limited Warranty. Customer will pay the costs of any repair if the Equipment has been neglected, misused or abused after receipt by Customer, or permits anyone other than EMBODIED to work on or service the MOXIE Product. All software and data on a MOXIE Product returned for repair will need to be backed up by Customer prior to being repaired, as during hardware service all contents will be deleted, and the storage media will be reformatted. The replacement or repaired MOXIE Product will be returned at the start of the rental period unless EMBODIED has performed upgrades and/or updates to the MOXIE Product. Customer must pay rental charges if any Equipment replaced by EMBODIED is not properly returned to EMBODIED not later than the earlier of ten (10) calendar days after shipment of the replacement MOXIE Product or (ii) the expiration of the Rental Term.
13. No Right To Purchase
You do not have an option to purchase the MOXIE Product at any time. You expressly agree that you are renting the Moxie Product FOR YOUR PERSONAL, NON-COMMERCIAL USE ONLY. In other words, Customer has no purchase rights, purchase options or equity accruals in the MOXIE Product unless specifically otherwise stated by EMBODIED in writing, all of which will be immediately lost if Customer fails to timely pay all sums due under this Rental Agreement. You are prohibited from subleasing or lending the MOXIE Product. Embodied and You understand that this transaction is a lease and not a conditional sale or financing agreement.
14. Indemnity
Subject to this Rental Agreement, you will defend, indemnify and hold harmless EMBODIED, its subsidiaries and affiliates, and their respective directors, officers, agents, employees, licensors, and suppliers, from and against any claim, cause of action, liability, expense, loss or demand, including without limitation reasonable legal and accounting fees, arising out of, or in any way connected with (i) your breach of this Rental Agreement or the agreements made part of this Rental Agreement by reference, (ii) your breach of any applicable laws, regulations or third party rights, and (iii) your improper use, whether intentional or unintentional, of the MOXIE Product and/or any EMBODIED services.
15. Feedback
Embodied welcome and encourage you to provide feedback, comments and suggestions about the MOXIE Product (“Feedback”). You may submit Feedback by emailing us at support@embodied.com. Please note that any Feedback you submit to EMBODIED will be considered non-confidential and non-proprietary to you. By submitting such Feedback to EMBODIED, you grant embodied a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.
16) DISPUTE RESOLUTION
ANY DISPUTE THAT MAY OCCUR BETWEEN YOU AND EMBODIED, EXCEPT FOR A SMALL CLAIMS DISPUTE, MAY BE SUBJECT TO A CLASS ACTION WAIVER. YOU AGREE THAT ANY DISPUTE BETWEEN YOU AND EMBODIED IS SUBJECT TO THE PROCEDURE DESCRIBED BELOW WHICH INCLUDES BINDING ARBITRATION. PLEASE REVIEW THE RENTAL AGREEMENT IN ITS ENTIRETY TO UNDERSTAND THE DISPUTE RESOLUTION AND ARBITRATION PROVISION BELOW. YOU ALSO CONSENT TO THE DISPUTE RESOLUTION PROCEDURE DESCRIBED BELOW FOR YOU AND YOUR MINOR CHILD.
Procedure for Resolving Disputes
1) Try to Resolve Between Parties – If any claim or allegation or disagreement arises out of this Rental Agreement (referred to as “Dispute” or “Disputes”), or to any of Rental Agreement, then you and Embodied agree to send or transmit a written notice to the other party providing a description of the Dispute along with any proposed suggestions of how to resolve the dispute. If Embodied is sending such notice, Embodied will send the notice to the latest contact information that they have (the email address in your account). If you have not provided Embodied with contact information or the contact information is not correct, Embodied has no obligation under this section. Any notice you send should be addressed to Embodied, Inc., 385 E. Colorado Blvd., Suite 110, Pasadena, CA 91101, Attention: General Counsel. After such notice is received, Embodied and you agree to negotiate and engage in dialogue to resolve the Dispute for a period of 60 days. There is requirement that either you or Embodied to resolve this dispute on terms with respect to which you and Embodied, in each party’s sole and reasonable discretion, are not comfortable.
2) Arbitration – If the Parties cannot resolve a dispute as set forth above with the 90 days of receipt of said notice, then either Party can submit the Dispute to formal arbitration as described in detail below.
When the applicable 60-day period has lapsed and to the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration in accordance with the then Consumer Arbitration Rules of the American Arbitration Association (“AAA”). If the Dispute has a claimed value of less than $ 200,000, then the arbitration will be heard and determined by a single arbitrator who is a lawyer with at least 20 years practicing as a member of the bar in the substantive practice area that is related to the Dispute or a retired judge. The arbitrator will administer the proceedings in accordance with the Consumer Arbitration Rules of the AAA. The arbitration costs will be split evenly between the Parties. If the Dispute is greater than $ 200,000, or if Embodied elects in its sole discretion to bear the costs of arbitration in excess of those arbitrators before a single neutral arbitrator, then the arbitration shall be heard by a three-member party, with one member selected by each party and the third (who will be chair of the panel) selected by the two party appointed members or by the AAA in accordance with the Customer Arbitration Rules. The cost will be split evenly between the Parties. In either case, the arbitrator or arbitration panel, as the case may be will apply applicable law and the provisions of this Rental Agreement, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue an award based on the determination. Certain portions of this Section are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Embodied agree that we intend that this section satisfies the “writing” requirement of the Federal Arbitration Act.
The arbitrator(s) shall follow California law and the Federal Rules of Evidence in adjudicating the Dispute. The parties waive the right to seek punitive damages and the arbitrator(s) shall have no authority to award such damages in such arbitration proceeding. In arbitration, as with a court, the arbitrator must honor the terms of this Rental Agreement and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. The arbitrator(s) will provide a detailed written statement of decision, which will be part of the arbitration award and admissible in any judicial proceeding to confirm, correct or vacate the award. If either party refuses to perform any or all of its obligations under the final arbitration award (following appeal, if applicable) within thirty (30) days of such award being rendered, then the other party may enforce the final award in any court of competent jurisdiction in Los Angeles County, California.
AAA procedures, rules and fee information are available at http://www.adr.gov.
LIMITED TIME TO FILE CLAIMS - TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR EMBODIED WANT TO ASSERT A DISPUTE AGAINST THE OTHER, THEN YOU OR EMBODIED MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH ABOVE) WITHIN 1 YEAR AFTER THE DISPUTE ARISES, OR THE DISPUTE WILL BE FOREVER BARRED.
Injunctive Relief. The provisions above do not apply to any legal action taken by Embodied to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to the MOXIE Product, any Content, or Unsolicited Ideas and Materials and/or Embodied’s intellectual property rights (including such Embodied may claim that may be in dispute) and/or Embodied’s operations.
Small Claims. Notwithstanding anything described above, either party may bring a qualifying claim or Dispute in small claims court.
No Class Action – Disputes will only be handled individually and will not be consolidate with any other proceedings and/or disputes that involve any claim or controversy of any other party. If however, a court of competent jurisdiction or any arbitrator holds this restriction to be unenforceable or unconscionable, then our provision requiring arbitration does not apply and the Dispute must be brought exclusively in the court pursuant to the provision below.
Federal and State Courts in Los Angeles. Except to the extent that arbitration is required as described above, and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute may only be instituted in state or federal court in Los Angeles County, California. Accordingly, you and Embodied consent to the exclusive personal jurisdiction and venue of such courts for such matters.
17. Miscellaneous
EMBODIED reserves the right to change the terms of any products, goods or services that we offer and you rent or purchase. This may include, without limitation, changes to prices, taxes and/or delivery times. EMBODIED will provide you with prior notice of any changes, by posting a notice to EMBODIED’S website and/or sending an e-mail to you at the address you provided at the time of rental and/or that is affiliated with your Account. EMBODIED will not incur any obligation as a result of such change. By continuing to accept products, goods and/or services after we have notified you of a change to any terms, you will be deemed to have accepted the change. You still retain the right to cancel the rental of the MOXIE Product as outlined in detail above.
In any provision of this Rental Agreement is held to be unenforceable, void and/or invalid, the remaining provisions of this Rental Agreement will remain in full force and effect.
If EMBODIED does not or fails to enforce any right or provision in these Rental Terms, that does not constitute of a waiver of such right and/or provision unless that is agreed to in writing by EMBODIED.
Unless expressly set forth herein, any exercise by either Party of any of its remedies described hereunder will be without prejudice to asserting and/or exercising its rights to its other remedies under this Rental Agreement or otherwise permitted by law.
Notices under this Rental Agreement will be provided via email (e.g., the email associated with your account) and shall be deemed to be given on the date of transmission of the email that is providing written notice. It is your sole responsibility to verify and/or ensure that your email address associated with your account is accurate and current.
EMBODIED may, without restriction, assign, transfer or delegate this Agreement and/or any rights and obligations hereunder at its sole discretion and without notice to you. You may not assign, delegate, and/or transfer your rights and/or obligations under this Rental Agreement.
This Rental Agreement does not confer any rights and/or remedies upon any persons other than the Parties to this Rental Agreement.
Any obligations of the Parties under this Rental Agreement continue beyond the termination, cancellation or expiration of this Rental Agreement, shall survive such termination, cancellation, or expiration.
This MOXIE Product may not be used at a location outside of the United States. Thus, EMBODIED makes no representation or warranty that the MOXIE Product is available, operational and/or appropriate outside the United States.
