Pre-Sale Terms and Conditions
Effective July, 21 2016
Welcome! This website, located at www.liveplanet.net or any other website where these Terms are posted (including any subdomains and versions thereof, the “Site”) is owned and operated by Live Planet, Inc. (“Live Planet”, “Company”, “us,” “our,” or “we”). Please read these Terms & Conditions for Online Offers to Purchase (the “Terms”) carefully before submitting your pre-order for a Live Planet VR/360 camera (the “Product”). By using our Site to submit a pre-release offer to purchase the Product (an “Offer”) or to confirm your shipping address and/or order, you agree to be legally bound by these Terms.
Summary of Key Terms
When you submit your Offer, you are offering to purchase a Product from us on the terms and conditions set forth below. As described in these Terms, you may retract your offer, and we may reject your Offer and refund all amounts paid by you. Your Offer is not a contract to purchase the Product. (See Section 1)
These Terms provide that all disputes related to these Terms will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Arbitration Agreement in Section 18 for the details regarding your agreement to arbitrate any disputes arising under these Terms, including any limitations of that agreement.
Specifications for our Products may change from the specifications currently published on our website. (See Section 4)
Shipping of the Products may be significantly delayed. (See Section 5)
Any warranty we make available for our Products will be published before we accept your offer to purchase the Product, and you will have the opportunity to rescind your offer and receive a full refund of all amounts you paid if the warranty terms are not to your liking. (See Section 11)
Using the Product requires an active Internet connection and an account on the Live Planet content management and distribution service , which will be operational at www.LivePlanet.net when Product is shipped. Use of the Service is subject to the Live Planet Terms of Service. (See Section 9).
1. Pre-Order and Acceptance
Each Offer you submit constitutes an offer to purchase the Product from us and does not constitute an agreement by Live Planet to sell you the Product. All Offers are subject to Live Planet’s acceptance and may be rejected at any time and for any reason in Live Planet’s sole discretion. Additionally, as set forth in Section 4 below, your Offer is revocable by you at any time prior to our acceptance of that Offer. If we reject your offer, Live Planet will, as your sole and exclusive remedy and Live Planet’s sole and exclusive liability, refund the amount you prepaid, as described in Section 4.
When the shipping date of our Products approaches, Live Planet will send you an email at the email address you provided with your Offer, and request that you confirm your Offer and/or verify your shipping address (the “Confirmation”). If you do not submit your Confirmation within 30 days of Live Planet’s request, Live Planet may, at its sole discretion, reject your Offer and provide you a full refund of the amount you paid or continue to attempt to contact you. After we receive your Confirmation, we will notify you whether we accept or reject your Offer. Upon our acceptance, you will be bound by all terms and conditions applicable to the sale, these Terms, and any supplemental terms and conditions provided to you.
If you have any questions, comments, or concerns regarding Live Planet’s pre-order acceptance policy, or if you believe that your pre-order was rejected in error, please contact Live Planet at support@LivePlanet.net.
You must be at least 18 years old to submit an Offer and to purchase a Product. By agreeing to these Terms, you represent and warrant to us that you are at least 18 years old. If you are offering to purchase a Product on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
You must pay a deposit equal to the advertised purchase price of the product you select (the “Deposit”) in order to submit your Offer. Your Deposit is refundable as provided in these Terms and under applicable law. If you do not submit the deposit, your Offer will be deemed ineligible and will be rejected by Live Planet. However, Payment of the Deposit DOES NOT mean your Offer was accepted by Live Planet and does not guarantee acceptance of your Offer in the future. You must pay your Deposit through our Site using one of the approved payment processing vendors available to you during the checkout process, or through other means we make available to you.
4. Specifications; Refunds
We know the Live Planet camera and the related services we will offer will make you very happy with your purchase decision. However, our Product is presently in development, and the Product specifications published on our Web site may change prior to delivery. Please review all specifications prior to submitting your Confirmation.
If you change your mind about your purchase at any time prior to our acceptance, you may revoke your Offer and we will refund your Deposit. To cancel, please send us an email as set forth in Appendix 1 (below) to firstname.lastname@example.org. We will process all Deposit refunds promptly and refund the full amount you paid. We will refund deposits using the method of payment used to pay the Deposit, or if unavailable, we may attempt to contact you to arrange delivery of your refund. Live Planet will make reasonable efforts to contact you to provide a refund, but if Live Planet does not receive a response from you within 90 days of Live Planet’s initial request for your shipping address, or if Live Planet is not able to process your refund after that 30 day period (for example, due to a cancelled credit card), then Live Planet reserves the right to treat your Deposit as unclaimed property in accordance with applicable law.
Once we have accepted your Offer, your Deposit is NON-REFUNDABLE and will be immediately applied to the purchase price for the Product. Due to the substantial discount we are offering for the pre-sale, no refunds or returns will be allowed once we have accepted your Offer, unless expressly required by law or as provided under the limited warranties applicable to the purchased Product, if any. For further information see Section 11 and our Return, Warranty and License Policy (Note: these will be posted prior to order confirmations).
5. Shipping and Delivery Date
Unless and until we state otherwise, our Products are in development, and are not ready for delivery. Shipping will commence no sooner than October 1, 2016, and may commence substantially later. Any shipping date we provide is an estimate only, and the actual shipping date of any Product you are to receive will depend on a variety of factors including (but not limited to) our manufacturing schedule, the date you submit your Offer, the date you submit your Confirmation, and the date we accept your Offer. Commencement of shipping is subject to change without notice to you. You must pay all shipping charges based on the address you provide in your Offer, or if different, in your Confirmation.
Please note, shipping charges for certain destinations will be calculated at the time when you submit your Offer and those shipping charges will be included in your Deposit. For those destinations where shipping charges are not incorporated into your Deposit, we will calculate shipping based on the address you provide as part of your Confirmation and we will charge you when you submit your Confirmation. Except where required by law or where otherwise noted (see Section 7, below), all posted prices are exclusive of VAT and other sales taxes, and we will not apply your Deposit to the payment of VAT or sales taxes. You are solely responsible for the payment of all tariff, import, customs, tax, and other charges applicable to your purchase of the Products. If shipping costs increase due to a change of address (regardless whether such change is indicated on your Confirmation or otherwise made by you,) Live Planet may, in its sole discretion, require you to pay additional shipping fees or refund the full amount you paid.
6. Transfer of Risk and Title
All shipments are made “FCA” (Incoterms 2010) from our warehouse or distribution center. Without limitation or modification of the foregoing, “FCA” generally means that the risk of loss of the Product passes to you as soon as the carrier picks up the Product at our warehouse/distribution center, and you are responsible for any loss or damage to the Product from that point on. Insurance for your shipment and any claims against a carrier for damage during shipping are your responsibility. We suggest that you have your carrier require an authorized signature prior to delivery, and we are not liable for any unauthorized delivery or theft.
Except in the case of sales tax for residents of the State of California, U.S.A., and VAT where required by applicable law, all import duties, VAT, sales and other taxes, service fees, and any other additional charges are not included in the Product price or shipping cost and your Deposit will not be applied to such charges. These charges are solely your responsibility. Please check with your state and country’s customs office to determine what these additional costs will be prior to submitting your Order or Confirmation. If you have already submitted an Order or Confirmation and discovered that such taxes make your pre-order untenable for you, please contact Live Planet Support to rescind your Offer, and we will refund your Deposit, provided that you contact us prior to our acceptance of your pre-order.
8. Export Control
You acknowledge that Products may be subject to export control laws and other laws and regulations of the United States and other countries, and that if Live Planet ships a Product to you, the Product may be impounded or otherwise confiscated by customs or other authorities. You are responsible for compliance with all applicable export control laws and regulations. You represent that you will not export, re-export, or transfer indirectly or directly any Product outside of the United States without obtaining proper authorization from the applicable government agencies. Without limiting the immediately preceding sentence, you will not export, re-export, or transfer directly or indirectly any Product to: (i) an embargoed/terrorist supporting country, including Cuba, Iran, North Korea, Syria, Sudan, or any other such country as determined by the US government (and subject to change from time to time); (ii) a person or entity barred by the US Government on export activity lists, including persons or entities on the Treasury Department Specially Designated National List, Entities List, and Denied Persons List; or (iii) any destination for an end use that is prohibited by applicable law. You will defend and hold Live Planet harmless against all claims, damages, or liability resulting from breach of the foregoing.
9. Use of the Product; Live Planet Service
You represent that the Product you have offered to purchase is for your own use and not intended for resale. Use of the Product is subject to all laws, regulations, and ordinances applicable in your jurisdiction. It is solely your responsibility to determine whether your use of the Product complies with local laws, regulations, and ordinances, and to ensure that your use complies with all applicable laws, regulations and ordinances. If you do not have sufficient information to determine whether your use of the Product will comply with all applicable laws, regulations, and ordinances, then do not submit an Offer.
You must also use the Product in strict accordance with the user documentation provided together with the Product and with our Return, Warranty and License Policy. Certain features of the Product may require an Internet connection and an account on the Live Planet content management and distribution service (“Service”). Your use of the Live Planet Service is subject to the Live Planet Terms of Service. If you violate the Live Planet Terms of Service, you may not be able to use the Product or certain features of the Live Planet Product. Live Planet will not be liable for your inability to use the Product or Service, and your sole and exclusive remedy will be to request a refund if allowed under Section 4.
10. Intellectual Property
Live Planet (or its licensors) own all patent, trademark, copyright, trade secret and other intellectual property rights in the Product. If Live Planet accepts your Offer, you will acquire no interest or rights in Live Planet’s intellectual property, except as provided herein or in the applicable license(s). You acknowledge and hereby agree that your use of the Product is subject to the Live Planet Terms of Service and any additional license terms and restrictions that are provided together with the Product or at the time of your Confirmation. Live Planet reserves all rights in and to the Products not granted expressly in these Terms or other additional license terms.
11. Limited Warranty and Disclaimer
Live Planet will provide the details of its limited warranties for Products on the Site prior our acceptance of your Offer. By providing your Confirmation, you acknowledge and agree that you have reviewed the limited warranty for the Product you offered to purchase, and that you accept our Return, Warranty & License Policy. Live Planet may also provide the warranty terms for a Product together with the shipped Product. If you are dissatisfied with the warranty terms once published, you may contact Live Planet Support to rescind your Offer and we will refund your Deposit. EXCEPT AS MAY BE EXPRESSLY PROVIDED BY LIVE PLANET IN THE WARRANTY APPLICABLE TO A PRODUCT AT THE TIME THE ORDER FOR THE PRODUCT IS ACCEPTED, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS, THE SITE, AND OUR SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT GUARANTEED WARRANTY OF ANY KIND, AND LIVE PLANET HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. LIVE PLANET DOES NOT WARRANT THAT USE OF ANY PRODUCT WILL BE UNINTERRUPTED OR FREE OF ERRORS OR OTHER HARMFUL COMPONENTS, AND DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. LIVE PLANET DOES NOT WARRANT THAT ANY PRODUCT COMPLIES WITH ALL APPLICABLE LAWS OR REGULATIONS IN ANY PARTICULAR JURISDICTION. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF THE PRODUCT. WE DO NOT WARRANT THAT ANY OFFER OR CONFIRMATION SUBMITTED THROUGH OUR SITE WILL BE RECEIVED IN A TIMELY FASHION, OR AT ALL. FURTHER, WE PROVIDE NO WARRANTY OR OTHER ASSURANCE THAT WE WILL ACCEPT YOUR OFFER, OR GRANT PRIORITY TO ANY SINGLE OFFER OVER ANOTHER OFFER FOR ANY REASON, WHATSOEVER. ALL ACCEPTANCE DECISIONS ARE TO BE MADE IN THE SOLE AND EXCLUSIVE DISCRETION OF LIVE PLANET.
12. Limitation of Liability
EXCEPT WHERE PROHIBITED UNDER BY APPLICABLE LAW, IN NO EVENT WILL LIVE PLANET, ITS RELATED ENTITIES, ITS SERVICE PROVIDERS, LICENSORS, AND ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY THE “LIVE PLANET PARTIES”) BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER, ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF OR INABILITY TO USE ANY PRODUCT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LIVE PLANET 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. You agree that the aggregate liability of the Live Planet Parties to you for all claims arising out of or related to these Terms or your use or inability to use a Product shall not exceed the amount you paid to Live Planet for that Product, except as may be required by applicable law. This section and all limitations will apply even if the above stated remedy fails of its essential purpose or if the other party knew or should have known of the possibility of such damages. Each provision of these Terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks under these Terms between the parties. This allocation is an essential element of the basis of the bargain between the parties and shall survive any termination or expiration of these Terms.
You acknowledge that you may have or may in the future have claims against us which you do not know or suspect to exist in your favor when you agreed to these Terms and which if known, might materially affect your consent to these Terms. You expressly waive all rights you may have under Section 1532 of the California Civil Code, which states:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
IF THIS CLAUSE IS HELD TO BE UNENFORCEABLE IN WHOLE OR IN PART IN ANY JURISDICTION DUE TO RELEVANT LAWS, THEN IN NO EVENT SHALL OUR OR THE RELEASEES’ TOTAL LIABILITY TO YOU EXCEED THE TOTAL AMOUNT YOU HAVE PAID US OR THE RELEASEES DURING THE SIX (6) MONTHS PRIOR TO THE INCIDENT. TO THE EXTENT REQUIRED BY APPLICABLE LAW, NOTHING IN THIS CLAUSE SHALL LIMIT OR EXCLUDE ANY LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM NEGLIGENCE.
You alone are responsible for the manner in which you use the Product. You shall defend, indemnify and hold harmless the Live Planet Parties from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your use of, or alleged use (or misuse) of, any Product; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
14. Force Majeure
Regardless whether Live Planet accepts your Offer to purchase a Product, Live Planet will not be liable to you for any delay, non-delivery, non-acceptance, or any other matter (except for Live Planet’s refund obligations) due to an event which prevents, impedes, or delays a party’s performance of its obligations hereunder, such as an act of God, terrorism, war or other military or police action, political insurgence, insurrection, riot, civil unrest, act of civil or military authority, changes in applicable law or regulation, uprising, earthquake, flood or any other natural or man-made eventuality outside of Live Planet’s control.
16. Modification of these Terms
We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms before we will consider accepting your Offer. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose. Your sole remedy for any claim arising from any change in these Terms is to obtain a refund of your Deposit.
17. Controlling Law and Severability
These Terms will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law principles. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any portion of these Terms to be unenforceable, such excluded term shall be replaced with a valid provision that most closely approximates the Parties’ intent, and the remainder of these Terms will continue in full force and effect.
a) Generally. In the interest of resolving disputes between you and Live Planet in the most expedient and cost effective manner, you and Live Planet agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award, and your liability is nevertheless limited as set forth in these Terms. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND LIVE PLANET ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
b) Exceptions. Despite the provisions of this Section 18, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
c) Arbitrator. Any arbitration between you and Live Planet will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Live Planet.
d) Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Live Planet’s address for Notice is: Live Planet, Inc., 2355 Westwood Boulevard, #786, Los Angeles, CA 90064, USA. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Live Planet may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Live Planet must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Live Planet will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Live Planet in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
e) Fees. If you commence arbitration in accordance with these Terms, Live Planet will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Los Angeles County, California, USA, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Live Planet for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
f) No Class Actions. YOU AND LIVE PLANET 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 Live Planet agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
g) Modifications to this Arbitration Provision. If Live Planet makes any future change to this arbitration provision, other than a change to Live Planet’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Live Planet’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected will survive, and Live Planet may refuse to provide any further services or Products to you.
h) Enforceability. If Section 18.f. is found to be unenforceable or if the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 17 will govern any action arising out of or related to these Terms.
19. Consent to Electronic Communications
21. Contact Information
Live Planet, Inc., producer of the Live Planet system, is headquartered in Los Angeles, California. You may contact us at:
Live Planet, Inc.
2355 Westwood Boulevard, #786
Los Angeles, CA, USA 90064
Appendix 1 – Cancellation Form
Live Planet, Inc.
2355 Westwood Boulevard, #786
Los Angeles, CA, USA 90064
I [insert name] hereby give notice that I wish to revoke my Offer to purchase the Live Planet camera, which was placed on [insert date] with the confirmation number [insert confirmation number].
[Insert email address]
[Insert mailing address]