Effective: May 4, 2016
This website http://kontakt.io (this “Site”) is operated by Kontakt Micro-Location Sp. z.o.o. with its registered office in Krakow (30-709), at ul. Stoczniowców 3, registered under the KRS number 490663 (“Kontakt”, “Kontakt.io”, “we”, “us”, or “our”). The Site offers and comprises product information and product management, user accounts, content, data reporting, other educational materials and a shop where you can purchase our Bluetooth technology – based products, including, among others, Smart Beacon, Tough Beacon, USB-Beacon, Cloud Beacon, and Smart Beacon Two (the “Beacons”).
If you do not agree to the Agreement, you are prohibited from accessing and/or making any purchases via the Site.
THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER.
Modification of Agreement
Kontakt.io may modify this Agreement from time to time and will make a reasonable attempt to notify you by making the revised version available via the Site, and an updated revision date will indicate that changes have been made. The new Agreement will be effective when posted. Your use of the Site after any such modifications or revisions are posted shall indicate your acceptance of any modified or revised terms of the Agreement. If you do not agree to the modified or revised terms, then do not access or use this Site. Kontakt.io may also terminate this Agreement at any time without notice to you. In the event of termination, you are no longer authorized to access the Site, and the restrictions imposed on you with respect to the Site and Beacons, including the disclaimers, limitations of liabilities, and export restrictions stated in this agreement shall survive.
You can purchase Beacons by visiting our online store at our Site (the “Store”) and filling out an appropriate order form (the “Order”). Once you file the Order, Kontakt.io shall promptly send electronic confirmation accepting the Order as well as setting final terms of its performance (“Confirmation”). Confirmation may contain in particular: estimated date of shipment and delivery, gross price for the ordered Beacons, delivery costs, taxes as well as any other information relevant to the Order that may be foreseen at the date of the issuance of the Confirmation. In no event shall Kontakt.io be held liable for any errors, omissions or inaccuracies in the content of the Order.
Any adjustment of the Order shall be subject to an explicit written acceptance of Kontakt.io. For the avoidance of doubt, the lack of Kontakt.io’s response shall not be deemed as an acceptance of a request for Order modification.
Order Suspension and Cancellation
There may be rare occasions when Kontakt.io confirms your Order but subsequently learns that it cannot supply the ordered Beacons. We will reach out to you to arrange for a substitute solution or rearrange the delivery schedule. In the event we cannot agree on the new arrangements or supply the Beacons ordered, Kontakt.io will cancel the Order and refund your purchase price in full and Kontakt.io shall no liability towards you for any damages related to order suspension and cancelation.
Kontakt.io shall be entitled to suspend the performance of an Order in the situation of your improper performance of the Agreement, until all infringements and their effects are redressed in a way satisfactory to Kontakt.io. In case of any unforeseeable circumstances beyond Kontakt.io’s control that make it impossible, harmful or unreasonably difficult for Kontakt.io to perform the Order, the period for the performance of the Order shall be automatically prolonged by the time of the duration of the aforesaid circumstances, or the Order shall be cancelled, as decide by Kontakt.io in its full discretion.
If Kontakt.io cancels an Order after you have already been billed, Kontakt.io will contact you directly to explain the issue and refund the billed amount if no other solution is agreed to by Kontakt.io and you.
The maximum number of Beacons that can be purchased via our online store is 50 (“Maximum Quantity”).
In case of non – standard quality or above the Maximum Quantity Orders, the production and shipping timetable for any bespoke solutions for Beacons shall be discussed and agreed upon separately in advance in writing, before production for such Beacons commences. Contact us at firstname.lastname@example.org for any inquiries.
While placing your Order you will be asked to provide your payment information. We accept all major credit cards, including MasterCard, Visa, American Express, and Maestro, as well as payment processing systems, i.e. PayPal, and Braintree. In some cases, we can also allow you to pay via a regular bank transfer.
Please note that, in addition to the price for the Beacons and shipping, if applicable, you are responsible for the payment of all taxes, levies, fees and custom costs that may arise in connection with your Order.
Prices shown are in U.S. dollars. Please note that the total purchase price may fluctuate with exchange rates if your account is in a different currency. In addition, your bank or credit card issuer may also charge you foreign conversion charges and fees, which may also increase the overall cost of your purchase. Please contact your bank or credit card issuer regarding these fees.
Pricing and Price Reductions/Corrections
Kontakt.io reserves the right to change prices for products displayed at the Store at any time, and to correct pricing errors that may inadvertently occur.
Performance and Shipment of the Order
Kontakt.io shall use its best endeavors to send ordered Beacons pursuant to the Confirmation and the Agreement, in particular, to deliver them as fast as possible, in a package that ensures their safety and integrality. Notwithstanding the foregoing, you acknowledge that the delivery time may be prolonged by the time of duration of an obstacle due to circumstances beyond the control of Kontakt.io, i.e. unexpected, prolonged or numerous custom inspections or unforeseeable disturbances in transport. We are not responsible for the customs arrangements in your jurisdiction, and have no control over this process.
You acknowledge that Kontakt.io shall not be obliged to perform the Order until all due payments for the Order are received.
Either you or one of your employees or agents authorized to pick up the consignment (all referred to as the “Recipient”) shall confirm the receipt of the Order by a personal signature on the bill of lading. Recipient is obliged to examine carefully the delivered Beacons upon their receipt, both in terms of their quality and quantity.
Recipient shall report immediately to the shipping handler and Kontakt.io. (via e-mail and/or telephone) all apparent damage, defects or discrepancies of the consignment suggesting damage or defects of Beacons and/or quantitative discrepancies of the consignment, as well as to confirm this fact on the bill of lading. Kontakt.io shall review the complaint. Only if the Recipient fulfills its reporting obligations and Kontakt.io establishes that the facts of the case indicate that the complaint is justified, Kontakt.io shall at its own expense immediately replace the defective units of Beacons or send any missing number of units. Other ways of compensation for incomplete or defective Orders are explicitly excluded.
Risk of Loss; Responsibilities
Once these Beacons leave our premises, you assume full responsibility for all claims, loss, damage, liability or expense arising from your acts, negligence or omissions and your employees or agents, and shipping agents, relating to transportation, handling, storage, maintenance and use of the delivered Beacons, formalities related to custom controls and other legislative requirements.
The batteries in some of our Beacons are replaceable without special tools and you can do it on your own. While the replacement process itself is simple and easy enough, you should take care to safely remove and replace the coin cell battery in order to ensure the Beacon will function properly after replacement. If you mishandle or damage the Beacon when replacing the battery, we cannot guarantee that the Beacon will function after the battery is replaced and our Warranty (as described in the Returns & Warranty document) will not cover the damage.
We use standard batteries which should be available anywhere in the world. If you ever need new batteries and cannot find suitable replacements, just contact us we’ll help you find the right kind.
Beacons with Irreplaceable Batteries
Some Beacons have batteries which are not replaceable by the user either because of the special nature of the battery or because the case is not designed to be opened. For such Beacons, Kontakt.io can only guarantee that the hardware will perform as designed for the life of the Beacons. Once the battery has discharged itself, it is incumbent upon the owner of the Beacon to take the Beacons and battery to an appropriate recycling facility.
Unregistered users may access the Site to review information published on the Site, but must be registered in order to access certain features of the Site and purchase Beacons in our Store.
You agree not to disclose your password to anyone else, and that you will be solely responsible for any activities or actions taken under your Account, whether or not authorized by you. You should notify us immediately of any unauthorized use of your password or Account. We are not liable for any loss or damage from your failure to comply with these conditions. You agree that the information you provide to us will be true, accurate, current and complete. By creating an Account you consent to provide you with any notices given pursuant to Agreement; and to us using electronic records to store information related to the Agreement, and other contracts between you and Kontakt.io.
Copyright Notice and Uses of Site Content
The contents of the Site are protected by the copyright and other laws of the United States, the European Union, and its treaty countries and other jurisdictions. Except as may otherwise be provided in a written agreement you have with Kontakt.io, you may not modify, copy, reproduce, republish, upload, post, transmit, transfer, or distribute in any way, any of the contents of this Site. You may download content from this Site solely for your personal, non-commercial use provided you keep intact all copyright and other proprietary notices. Any copies of the content must include Kontakt.io’s copyright notice: © 2016 Kontakt Micro-Location Sp. z o.o. All rights reserved.
Third Party Services, Websites, or Resources
The Site, including our blog, may contain links, content, or resources provided by third parties (the “Third Party Resources”). When you access Third Party Resources, we are not responsible or liable for the availability, accuracy, functionality of the Third Party Resources, adherence to third party policies, or legality thereof. You also agree that Kontakt.io has no control over Third Party Resources. We do not endorse such websites, services, or resources or the content, products, or services on or available from such Third Party Resources. You are solely responsible for and assume all risk arising from your use of any such websites, services or resources.
Your use of the Site and any other feature or service provided by Kontakt.io is at your sole discretion and risk. For the purpose of this section, this Disclaimer also includes Beacons sold by Kontakt. We will not be responsible for any harm to your computer or mobile device, loss of data, personal injury, property damage, or other harm that results from your use of the Site or Beacons.
NOTWITHSTANDING ANYTHING TO THE CONTRARY PROVIDED IN THE RETURNS AND WARRANTY DOCUMENT, THE MATERIALS ON THE SITE AND BEACONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. COMMENTARY AND OTHER MATERIALS POSTED ON THE SITE ARE NOT INTENDED TO BE ADVICE ON WHICH RELIANCE SHOULD BE PLACED, AND KONTAKT.IO THEREFORE DISCLAIMS ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY SUCH RELIANCE.
TO THE FULLEST EXTENT PERMISSIBLE IN REGARDS TO APPLICABLE LAW, KONTAKT.IO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND ANY OTHER CONDITIONS, WARRANTIES AND OTHER TERMS WHICH MIGHT OTHERWISE BE IMPLIED BY STATUTE, COMMON LAW, CIVIL LAW, OR LAW OF EQUITY WITH REGARDS TO THE SITE AND BEACONS. KONTAKT DOES NOT WARRANT THAT THE SITE OR BEACONS, INCLUDING SERVICE USED TO OPERATE THE SITE OR BEACONS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE, OR THE SERVER THAT MAKES IT AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
We do not make any warranties regarding the security, accuracy, reliability, timeliness and performance of the Site and Beacons; or that the Site will be error-free or that any errors will be corrected. Kontakt.io and its licensors will not be liable, and you are solely responsible, for any and all costs associated with access, usage, maintenance, repair, and correction of any equipment you use to access or use the Site or Beacons.
We are not responsible for the incorrect or inaccurate transcription of information; problems related to any of the equipment or software associated with the Site or Beacons or used by you; human error outside our reasonable control; any interruption, deletion, omission, degradation, defect, or failure of any telephone network or electronic transmission; or problems relating to inability to access the Site or Beacons.
We are not responsible for the privacy issues or failures caused by you, a Kontakt.io customer, or otherwise affiliated third party; who uses services provided by the Site to collect, store, process, or otherwise use sensitive information; whether the cause is intentional, accidental, or due to some other failure. Usage of information as described in this paragraph occurs outside the knowledge and purview of Kontakt.io. You responsible for upholding and enforcing your own privacy policies, license agreements, and terms of service.
You agree to defend, indemnify, and hold Kontakt.io, its officers, directors, employees, and agents; harmless from and against any claims, liabilities, damages, losses, and expenses; including without limitation reasonable attorney’s fees and costs, arising out of or in any way connected with; your access to or use of the Site or Beacons; your violation of the Agreement; or your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right.
Limitation of Liability
IN NO EVENT, INCLUDING BUT NOT LIMITED TO, NEGLIGENCE, SHALL KONTAKT.IO, ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, AFFILIATES OR PARENT COMPANY BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT ARISE OR RESULT FROM OR ARE RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SITE, MATERIALS MADE AVAILABLE ON OR THROUGH THE SITE, OR ANY BEACONS SOLD BY KONTAKT.IO, ITS LICENSORS, OR ITS AGENTS AND DISTRIBUTORS. IF YOU ARE DISSATISFIED WITH THE SITE, OR ANY MATERIALS MADE AVAILABLE BY OR THROUGH THE SITE, OR WITH THIS AGREEMENT; YOUR SOLE AND EXCLUSIVE OPTION IS TO DISCONTINUE USING THE SITE.
Some jurisdictions do not allow the exclusion of certain warranties, or the exclusion or limitation of liability for consequential or incidental damages, so the above limitations may not apply to you.
In the event of any contradictions between provisions of TOS and Returns & Warranty, the provisions of the Returns and Warranty version prevails.
Notices of Copyright Infringement
If you believe your intellectual property rights are infringed by any content on the Site, send us a written notification using the contact information made available on the Site. We require some form of proof and an official statement that you are, or that you represent the intellectual property rights owner, and that you have a good faith belief that your rights are being infringed, or that there is some unauthorized use of your intellectual property on the Site. We also require some reasonable time to respond to, or remedy the situation as is most appropriate. We are not responsible for, and are unable to take action against, intellectual property rights infringements, when said property is not stored on or transmitted through the Kontakt Site, or the servers and networks used to operate the Site.
European Union Export Compliance Assurances
You acknowledge that all products, services, proprietary data, know-how, software, or other data or information (herein referred to as “Products”) obtained from Kontakt.io, including any product derived thereof, are subject to the European Union export control laws. Accordingly their use, export, and re-export, may be restricted or prohibited. You and your affiliates agree to obtain prior to export, an authorization from the applicable agency (either in writing or as provided by applicable regulation). You, therefore, agree that neither you nor your subsidiaries or affiliates will directly or indirectly export, re-export, transfer, or release, or cause to be exported or re-exported, any such Products or any direct Product thereof to any destination or entity prohibited or restricted under EU law, including but not limited to EU embargoed or sanctioned countries or entities (including their nationals) unless you obtain prior to export, an authorization from the applicable agency (either in writing or as provided by applicable regulation). You further agree that no Products received from Kontakt will be directly or indirectly employed in military applications, and especially any weaponized end uses, or in any manner transfer to another party for any such end use. This requirement shall survive any termination or expiration of this Agreement.
United States Export Control and Restricted Countries
By using the Site and / or purchasing Beacons, you represent and warrant that (i) neither you nor your entity is 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 also will not use the Site, the materials provided therein and Beacons for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons.
The Kontakt.io logo is a trademark of Kontakt Micro-Location Sp. z.o.o. and / or its affiliates. Certain other product names, brand names, and company names mentioned in this site, may be trademarks of their respective owners.
Arbitration clause and forum selection clause
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action between you and Kontakt.io or its successors or assigns shall exclusively be settled through binding and confidential arbitration and not in a state or federal court of law.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes collectively, the “Rules and Procedures“
You must abide by the following rules: the arbitration shall be confidential, and neither you nor Kontakt.io may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award, and each party shall pay its own attorneys’ fees and expenses.
Notwithstanding the foregoing, either you or Kontakt.io may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other Party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in the State of New York. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in the State of New York in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within the State of New York for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
If any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. This arbitration provision shall survive termination of this Agreement and the termination of your Kontakt.io Account.
If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in the State of New York.
Jury Trial; Class Action Waiver
YOU AND KONTAKT.IO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Kontakt.io agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of the arbitration provision shall be null and void. 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.
Kontakt.io shall not be in breach of the Agreement nor be liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
This is the entire scope of this Agreement; there are no other warranties, terms, covenants, or binding obligations between Kontakt.io and you other than what is set out in the Agreement.
No variations to or alterations of the Agreement shall be valid unless unanimously and expressively agreed by Kontakt.io and you in writing.
This Agreement is governed by the laws of the State of New York, without giving regards to its conflict of laws rules.
In the event that any provision of the Agreement becomes or is declared by a court to be illegal, unenforceable, or void, the Agreement shall continue in full force and effect without the said provisions and Kontakt.io together with you shall replace the aforesaid provision by the provision that is in accordance with law and reflects as close as possible the invalid provision.
The terms and conditions set out in the United Nations Convention for the International Sale of Goods (CISG) are hereby expressly excluded.
No waiver of any breach hereof shall be deemed a waiver of any other breach hereof.
Section headings are provided for convenience only, and shall not be used to construe the meaning of any section.