Terms of sale
SIGHTFUL TERMS OF SALE
LAST UPDATED: January 17,2025
Welcome to Sightful! Sightful Inc., (“Sightful,” “we,” “us” or “our”) provides users with the ability to work from anywhere byoffering Spacetop, the world’sfirst AR desktop software application and accompanying glasses and lenses(collectively “Products”). TheseSightful Terms of Sale (these “Terms”)govern your use of any website operated by or on behalf of Sightful with a linkto these Terms (the “Site”), and anypurchases of Products made on the Site. Please review our privacypolicy to learn more about howSightful handles your personal information. Purchase of a software Product fromSightful constitutes purchase of the subscription license to use such softwarefor the duration of such subscription (the “Subscription Term”); suchpurchase shall not transfer any ownership in such software.
Your use of the Site may be subject to additional terms (“Supplemental Terms”) and suchSupplemental Terms will either be listed in these Terms or will be presented toyou for your acceptance when you sign up to use any portion of the Site that issubject to these additional terms (“SupplementalService”). If the Terms areinconsistent with the Supplemental Terms, the Supplemental Terms shall controlwith respect to such services. The Termsand any applicable Supplemental Terms are referred to herein as the “Agreement.”
If you are the end user of our Product(s), your use of such Product(s)is subject to the applicable end-user agreement presented to you at the pointof account creation or receipt of the Product (as applicable). For example,your use of the Spacetop Product is subject to the Terms of Use Agreement, andyou must agree to the Terms of Use Agreement prior to using the SpacetopProduct. If you are entering into this Agreement on behalf of an entity, youwill ensure, and represent and warrant, that such entity’s end users of ourProducts will comply with the applicable end-user agreements presented to them.
BY CLICKING ON THE “I ACCEPT”BUTTON, PURCHASING OR PRE-ORDERING PRODUCTS ON THE SITE, AND/OR ACCESSING THESITE OR USING ANY OF THE SERVICES, YOUACKNOWLEDGE AND AGREE THAT: (A) YOU HAVE READ, UNDERSTAND, AND AGREE TO BEBOUND BY THIS AGREEMENT; (B) YOU ARE AT LEAST EIGHTEEN (18) YEARS OLD; AND (C)YOU ARE NOT A PERSON OR ENTITY BARRED FROM USING THE SITE, OR PRODUCTS UNDERTHE LAWS OF THE UNITED STATES. YOUFURTHER REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITYTO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF OR, AS APPLICABLE, THEENTITY THAT YOU REPRESENT). IF THE INDIVIDUAL ENTERING INTO THISAGREEMENT OR OTHERWISE ACCESSING OR USING THE SITE IS DOING SO ON BEHALF OF, ORWITHIN HIS OR HER CAPACITY AS A REPRESENTATIVE, AGENT, OR EMPLOYEE OF ANENTITY, SUCH INDIVIDUAL AND SUCH ENTITY (AS APPLICABLE) AGREES THAT: (i) THETERM “YOU” AND “YOUR” AS USED HEREIN APPLY TO SUCH ENTITY (AS APPLICABLE) AND SUCHINDIVIDUAL; AND (ii) THAT THE INDIVIDUAL ENTERING INTO THIS AGREEMENT HAS THE POWER,RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCHENTITY. THE “EFFECTIVE DATE” OF THIS AGREEMENT SHALLBE THE EARLIER OF (I) YOUR USE OF THE SITE, (II) YOUR ACCEPTANCE OF THE TERMSOF THIS AGREEMENT BY CLICKING ON THE “I ACCEPT” BUTTON, OR (III) YOUR PLACEMENTOF AN ORDER FOR PRODUCTS.
IMPORTANT INFORMATION ABOUT ARBITRATION, CONSENTS ANDUPDATES TO THE AGREEMENT
PLEASEBE AWARE THAT SECTION 10 OF THESE TERMS CONTAINS PROVISIONS GOVERNING HOWDISPUTES THAT YOU AND SIGHTFUL HAVE AGAINST EACH OTHER WILL BE RESOLVED,INCLUDING WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TOTHE EFFECTIVE DATE OF THIS AGREEMENT. SECTION 10 CONTAINS, AMONG OTHER THINGS,AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALLDISPUTES BETWEEN YOU AND SIGHTFUL BE RESOLVED BY BINDING AND FINALARBITRATION. UNLESS YOU OPT OUT OF THEAGREEMENT TO ARBITRATE WITHIN THIRTY (30) DAYS OF THE EFFECTIVE DATE OF THISAGREEMENT: (A) YOU AND SIGHTFUL WILL ONLY BE PERMITTED TO PURSUE DISPUTES ORCLAIMS AND SEEK RELIEF AGAINST THE OTHER PARTY ON AN INDIVIDUAL BASIS, NOT AS APLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDINGAND EACH OF US WAIVES OUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT ORCLASS-WIDE ARBITRATION; AND (B) EACH OF US IS WAIVING OUR RIGHT TO PURSUEDISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
THESE TERMS ARE SUBJECT TO CHANGE BY SIGHTFUL IN ITS SOLEDISCRETION AT ANY TIME. When changes are made, Sightful will make anew copy of the Terms of Sale available on the Site, and any new SupplementalTerms will be made available from within, or through, the affectedservices. We will also update the “Last Updated” date at the top ofthe Terms of Sale. If we make material changes to these Terms, wemay (and, where required by law, will) also provide notification of changes inanother way that we believe is reasonably likely to reach you, such as viae-mail if you have provided that to us, or another manner through the Site(which may include posting an announcement on the Site). Sightful may requireyou to provide consent to the updated Agreement in a specified manner beforefurther use of the Site is permitted. If you do not agree to any change(s)after receiving a notice of such change(s), you shall stop using the Site andplace no further orders. Otherwise, your continued use of the Siteconstitutes your acceptance of such change(s). PLEASE REGULARLYCHECK THE SITE TO VIEW THE THEN-CURRENT TERMS.
1. ACCESS TO THE SITE.
1.1 License. Subject to theseTerms, Sightful grants you a non-transferable, non-exclusive, revocable,limited license to use and access the Site solely for your own personal orinternal business use.
1.2 Certain Restrictions. The rightsgranted to you in these Terms are subject to the following restrictions: (a)you shall not license, sell, rent, lease, transfer, assign, distribute, host,or otherwise commercially exploit the Site, whether in whole or in part, or anycontent displayed on the Site; (b) youshall not modify, make derivative works of, disassemble, reverse compile orreverse engineer any part of the Site; (c) you shall not access the Site inorder to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, nopart of the Site may be copied, reproduced, distributed, republished,downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any futurerelease, update, or other addition to the functionality of the Site shall besubject to these Terms. All copyrightand other proprietary notices on the Site (or on any content displayed on theSite) must be retained on all copies thereof.
1.3 Modification. Sightful reservesthe right, at any time, to modify, suspend, or discontinue the Site (in wholeor in part) with or without notice to you. You agree that neither Sightful nor its affiliates will be liable to youor to any third party for any modification, suspension, or discontinuation ofthe Site or any part thereof.
1.4 No Support or Maintenance. You acknowledgeand agree that Sightful will have no obligation to provide you with any supportor maintenance in connection with the Site.
1.5 Ownership. You acknowledgethat all intellectual property rights, including copyrights, patents,trademarks, and trade secrets, in the Site and its content are owned bySightful or Sightful’s affiliates. Neither these Terms (nor your access to the Site) transfers to you orany third party any rights, title, or interest in or to such intellectualproperty rights, except for the limited access rights expressly set forth inSection 1.1. Sightful and its affiliatesreserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
2. ORDERS AND TERMS OF SALE. These Terms willgovern any order to purchase Products you make through the Site, which mayinclude Sightful-created Products and Products provided by Sightful but createdby Sightful’s engaged third party vendors (“Hardware Vendors”).
2.1 Product Descriptions. Except as otherwise agreed in writing, descriptions,images, references, features, content, specifications, products, price andavailability of any Products are subject to change without notice. With respect to sales via the Site, we willmake reasonable efforts to accurately display the attributes of our Products onthe Site. By placing an Order (as defined below), you represent that theProducts will be used only for your personal purposes and in a lawfulmanner. We reserve the right, with orwithout prior notice, to limit the available quantity of or discontinue anyProduct.
2.2 Ordering Process. You may place an order for theProduct(s) (each, an “Order”) via the Site. We may choose to accept or declineyour Order for any lawful reason. When you place your Order, you will berequired to input your Payment Provider information (as defined below). Dependingon Product availability, you may also be required to pre-order the Product andsecure your Order by paying a refundable deposit (which will be applied to thepurchase price) . For the avoidance of doubt, all pre-orders will be deemedOrders for purposes of these Terms, but you may cancel your pre-ordered Productprior to shipment. Pre-orders will be fulfilled in the order in which they arereceived by Sightful. Your Order will be deemed accepted by Sightful upondelivery of the Product(s) that you have ordered. Other than as expressly setforth herein, Orders (excluding pre-orders that have not yet shipped) may notbe cancelled or rescheduled without the written consent of Sightful. We maycancel or deny an Order placed by you at any time and for any lawful reasonprior to our delivery of the Product(s), including without limitation if aProduct is discontinued or otherwise becomes unavailable, provided that we willrefund any fees and/or deposits that you prepaid for those Products. Inaddition, we may designate certain Products as not eligible for return(including software Products) and the sale of such Products will be final, withnotice of such final sale stated in the Product description and/or the Orderacceptance confirmation.
2.3 Shipping. All hardware (including glasses andlenses) shipping times that may be shown on the Site or otherwise presented toyou in connection with an Order are estimates only. Actual delivery dates mayvary. Shipping and delivery of the hardware Products may be performed bySightful’s authorized third-party logistics partners and technicians. WhileSightful will make a good faith effort to deliver the Products in a timelymanner and subject to your placement of an Order, Sightful is not responsibleor liable for any delays or failure in such delivery, including withoutlimitation, delays based on weather or other events beyond Sightful’sreasonable control.
Sightful ships hardware Productsto street addresses within the United States and its territories. Uponshipment, we, or one of our third-party partners, will send you noticeconfirming the shipment at the email address associated with your Order. We do not allow address changes after we sendsuch email confirmation of your Order shipment. Not all delivery options areavailable in all areas. All hardware shipmentsare FOB Destination and the risk of loss and title for Products you purchasepasses to you upon our delivery of the Products to you.
Replacement of hardware Productsand credits for shipped hardware Products claimed as not received are subjectto investigation, which may include notifying the carrier. No casualty ordamage, after such delivery, will relieve you from the obligation to pay Fees(defined below), or to comply with any other obligations under this Agreement.Your acceptance of delivery of any Product hereunder will be deemed youracknowledgement that (a) all Products listed in the applicable Order have beenreceived, and (b) such Products show no obvious signs of physical damage. Your Product shipment will be delivered via UPSor any other carrier we may engage. All reports of damages to a Productincurred during shipment must be reported to Sightful within three (3) businessdays of your receipt of the Product by emailing Sightful’s customer support atsupport@sightful.com. Hardware Productsdamaged during shipment will be subject to the terms of Sightful’s ReturnPolicy.
2.4 Tracking your Order. As your hardware Order ships, we, or one of ourthird-party shipping partners, will send you an email providing the shipmenttracking number(s). To see the detailed progress of your shipment, click on thetracking number link provided in your email. Please note that tracking detailsmay not be active immediately; in that case, check back in several hours or thefollowing day.
2.5 Return Policy. Hardware Product returns are subject to our ReturnPolicy located at [insertURL]. If you are eligible for areturn under our Return Policy, please follow the procedures specified in thepolicy.
2.6 Limited Product Warranty. For hardware Products, the only warranty is the LimitedProduct Warranty available at [insert URL].
2.7 Custom Orders for PrescriptionLenses. After you place an Order on theSite, you may have the opportunity to provide a photograph, or other proof ofyour vision prescription to one of our Hardware Vendors by following theinstructions provided to you by such Hardware Vendor. Subject to payment ofadditional fees presented to you at the point of purchase (if any), if youprovide your vision prescription details in accordance with this Section, theProduct will be customized by the applicable Hardware Vendor to include prescriptionlenses. All prescription lenses aremanufactured by one of our Hardware Vendors. Sightful does not access or storeyour prescription information. You are solely responsible for ensuring that THEprescription YOU PROVIDE TO OUR HARDWARE VENDORS IS accurate and up to date; neitherSightful nor Sightful’s HARDWARE VENDORS will have any liability for yourfailure to provide an accurate OR up-to-date prescription.
2.8 Restriction on Resale. Products sold on the Site or otherwise by Sightful arenot authorized for commercial resale to any third parties. Sightful reservesthe right to decline any Order that we deem to possess characteristics ofreselling.
3. FEES.
3.1 Orders and Fees. Sightful reserves the right at any time to change itsprices and billing methods upon posting to the Site or otherwise providingnotice to you. You agree to pay all fees or charges (collectively “Fees”) you incur in connection with anyorder you place in accordance with the fees, charges and billing terms ineffect (e.g., as set forth on the Site, or under the terms of any SupplementalTerms between you and Sightful) at the time such Fees are due and payable. Toplace an order on the Site or otherwise, you must provide us with a validPayment Provider (as defined below), a current billing address, and any otherinformation you are prompted to provide during the ordering process. For recurring subscription Fees, suchFees shall be charged as set forth below at the beginning of the month or year due.Sightful reserves the right to modify recurring subscription Fees payablehereunder upon written notice to you at least sixty (60) days prior to the endof the then-current Subscription Term.
3.2 Payments. Payments for Orders must be made via credit card or any other method ofpayment that we accept at the time of purchase. To pay for an Order, you willneed to provide Sightful’s payment processor (discussed below) with theinformation necessary to process your order, which may include a valid creditcard (Visa, MasterCard, or any other issuer accepted by us) (“PaymentProvider”). Your Payment Provider agreement governs your use of thedesignated credit card, and you must refer to that agreement, not this Agreement,to determine your rights and liabilities. By providing such payment processor with your credit card number andassociated payment information, you agree that we are authorized to immediatelyinvoice for all Fees due and payable to us for purchases made hereunder andthat no additional notice or consent is required. You agree to immediately notify us of anychange in your billing address or the Payment Provider used for paymenthereunder. You represent and warrantthat you will not use any Payment Provider or other payment method unless youhave all necessary authorization to do so. Sightful reserves the right (inaddition to any other rights or remedies Sightful may have) to discontinue the softwareProduct or Site, and/or suspend all of your access to the software Products if anypayments are more than thirty (30) days overdue, until such amounts are paid infull.
3.3 Payment Processor. Our store is hosted on Shopify Inc.’s(“Shopify”) online e-commerce platform that allows us to sell ourProducts to you, and utilize Shopify’s and Stripe’s payment services (e.g.,credit card transaction processing, merchant settlement and related services).By purchasing a Product, you agree to be bound by Shopify’s Payments Terms ofUse, available at https://www.shopify.com/legal/terms-payments-us andPrivacy Policy available at https://www.shopify.com/legal/privacy, and/or Stripe’s Privacy Policy(currently accessible at https://stripe.com/us/privacy) and its Terms ofService (currently accessible at https://stripe.com/ssa) as applicable. You hereby consentto provide and authorize Sightful and Shopify and/or Stripe, as applicable, toshare any information and payment instructions you provide to the minimumextent required to complete payment transactions.
3.4 Taxes. Unless otherwise specified at thetime of purchase, all applicable taxes and other charges, if any, are inaddition to the prices shown for the Products. If Sightful determines it has alegal obligation to collect any sales, use, excise, services or other taxmeasured by the value of sales or services (“Sales Tax”) from you inconnection with this Agreement, Sightful shall collect such Sales Tax inaddition to the amounts required under this Agreement. If any transactions made through the Site orotherwise, or your use of the Products under this Agreement is subject to SalesTax in any jurisdiction and you have not remitted the applicable Sales Tax toSightful, you will be responsible for the payment of such Sales Tax and anyrelated penalties or interest to the relevant tax authority, and you willindemnify Sightful for any liability or expense Sightful may incur inconnection with such Sales Taxes. UponSightful’s request, you will provide it with official receipts issued by theappropriate taxing authority, or such other evidence that you have paid allapplicable taxes.
3.5 Bill Inquiries and Refunds. If you believe you have been billed in error, pleasenotify us within thirty (30) days from purchase by contacting us at support@sightful.com . Sightful will not issue refunds or credits after theexpiration of this thirty (30) day period, except where required by applicablelaw.
3.6 Discounts. We may, in our sole discretion, create discounts and promotionalcodes that may be redeemed for credit, or other features or benefits, subjectto any additional terms that we establish on a per promotional code basis (“Promo Codes”). Only Promo Codes sent toyou through official Sightful communications channels are valid. You agree thatPromo Codes: (a) must be used for the intended audience and purpose, and in alawful manner; (b) may not be duplicated, sold, or transferred in any manner,or made available to the general public (whether posted to a public forum orotherwise), unless expressly permitted by us; (c) may be disabled by us at anytime for any reason without liability to us; (d) may only be used pursuant tothe specific terms that we establish for such Promo Code; (e) are notredeemable for cash; and (f) may expire prior to your use.
4. FEEDBACK. If you provide Sightful with any feedback or suggestionsregarding the Products or the Site (“Feedback”),you hereby assign to Sightful and/or its affiliates all rights in such Feedbackand agree that Sightful shall have the right to use and fully exploit suchFeedback and related information in any manner it deems appropriate. Sightfulwill treat any Feedback you provide to Sightful as non-confidential. You agreethat you will not submit to Sightful any information or ideas that you considerto be confidential.
5. SIGHTFUL COMMUNICATIONS
5.1 Generally. You may have the opportunity to provide us with your e-mailaddress or phone number. By providing your email address or phone number to us,you consent to receive email communications and/or SMS/text communications fromSightful. Communications from us may include communications about your use ofthe Products or the Products you have purchased through the Site.
5.2 Promotional Email Communications. If you opt-in to receive marketing or promotional emailcommunications from us, you will have the ability to opt out of receiving suchcommunications by following the unsubscribe instructions in the communicationitself. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVEPROMOTIONAL EMAILS AS A CONDITION OF USING THE SITE OR PURCHASING PRODUCTSTHROUGH THE SITE.
5.3 Electronic Communications. Communications between you and Sightful may useelectronic means, whether you use the Site or Products, or send us emails, orwhether Sightful posts notices on the Site or communicates with you via email.For contractual purposes, you (a) consent to receive communications fromSightful in an electronic form; and (b) agree that all terms and conditions,agreements, notices, disclosures, and other communications that Sightfulprovides to you electronically satisfy any legal requirement that such communicationswould satisfy if they were to be in a hardcopy writing. The foregoing does notaffect your non-waivable rights.
6. INDEMNIFICATION.You shall indemnify and holdSightful (and its officers, employees, and agents) harmless, including forcosts and attorneys’ fees, from any claim or demand made by any third party dueto or arising out of (a) your use of, or inability to use the Site; (b) yourviolation of this Agreement; or (c) your violation of applicable laws or regulations.Sightful reserves the right, at your expense, to assume the exclusive defenseand control of any matter for which you are required to indemnify us, and youshall cooperate with our defense of these claims. You shall not to settle anymatter without the prior written consent of Sightful. Sightful will usereasonable efforts to notify you of any such claim, action or proceeding uponbecoming aware of it.
7. DISCLAIMERS
7.1 No Commercial Use. We expressly disclaim any liability for any commercial (i.e.,non-personal) use of a Product. We do not warrant that Products can becommercially used in any specific regulated field or sector (for example, thegovernment, healthcare, medical, or educational fields), or are suitable ordesigned for use for any particular commercial use, field or sector, orenvironment. It is your responsibility to determine whether a Product can beused in compliance with applicable laws and regulations. You agree not to use aProduct for any commercial use that, under applicable law, would imposeadditional legal requirements on us or otherwise expose us to any liabilityrelating to any third party.
7.2 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLESTEXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS SET FORTH IN OUR LIMITEDWARRANTY, YOUR USE OF THE SITE AND PRODUCTS IS AT YOUR SOLE RISK, AND THE SITEAND PRODUCTS ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITH ALLFAULTS AND NO GUARANTEES REGARDING OUTCOMES OR PERFORMANCE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLELAW, SIGHTFUL (AND OUR AFFILIATES) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIESAND CONDITIONS OF ANY KIND, WHETHER EXPRESS, SIGHTFUL, OR STATUTORY, INCLUDINGALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULARPURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT ARISING FROM THESITE AND PRODUCTS. WE (AND OUR AFFILIATES) MAKE NO WARRANTY THAT THE SITE ORPRODUCTS WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED,TIMELY, SECURE, OR ERROR-FREE BASIS, OR THAT IT WILL BE ACCURATE, RELIABLE,FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. INSOFAR AS SUCH WARRANTIES CANNOT BEDISCLAIMED, SIGHTFUL LIMITS THE DURATION AND REMEDIES OF SUCH WARRANTIES TO THEDURATION OF SIGHTFUL’S EXPRESS LIMITED WARRANTY AND, AT SIGHTFUL’S OR ITSAFFILIATES’ OPTION, THE REFUND AND REPLACEMENT REMEDIES DESCRIBED THEREIN.
SOME JURISDICTIONS DO NOT ALLOW (i) THEEXCLUSION OF IMPLIED WARRANTIES OR (ii) LIMITATIONS ON HOW LONG AN IMPLIEDWARRANTY LASTS, SO THE ABOVE EXCLUSION AND LIMITATION MAY NOT APPLY TOYOU.
8. LIMITATION ONLIABILITY
EXCEPT TO THE EXTENT PROHIBITED BYAPPLICABLE LAW, SIGHTFUL SHALL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT,SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, REVENUE OR DATA,RESULTING FROM ANY BREACH OF AN EXPRESS OR IMPLIED WARRANTY OR CONDITION, ORUNDER ANY OTHER LEGAL THEORY, EVEN IF SIGHTFUL HAS BEEN ADVISED OF THEPOSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION WHETHER INCONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY. THE FOREGOING LIMITATION WILL NOT APPLY TODEATH OR PERSONAL INJURY CLAIMS, OR ANY STATUTORY LIABILITY FOR INTENTIONAL ANDGROSS NEGLIGENT ACTS AND/OR OMISSIONS. TO THE MAXIMUM EXTENT PERMITTED BY LAW,NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOUFOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSEWHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BELIMITED TO ONE HUNDRED U.S. DOLLARS ($100.00). THE EXISTENCE OF MORE THAN ONECLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NOLIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOMEJURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FORINCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAYNOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTALELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SIGHTFUL AND YOU.
9. TERM AND TERMINATION. Subject to this Section, these Terms will remain in full force andeffect while you use the Site and until the expiration or termination of all ofyour Subscription Term(s). Unlessotherwise stated with your order, the Subscription Term for a software Productwill begin on the effective date of your order of such Product and continue forone (1) year, unless earlier terminated in accordance with this Agreement.Thereafter, such Subscription Term will automatically renew for additionalterms of one (1) year unless either party gives written notice of non-renewalto the other party at least sixty (60) days prior to the expiration of thethen-current Subscription Term. Either party may terminate a Subscription Termfor convenience on sixty (60) days’ prior written notice to the other party,provided that if you so terminate, you will not receive (nor will we be liablefor) a refund for any prepaid amounts for the remainder of the currentSubscription Term. We may suspend or terminate your rights to access or use theSite at any time for any reason at our sole discretion, including for any useof the Site in violation of these Terms. Upon termination of your rights under these Terms or termination of thisAgreement, your right to access and use the Site and the software Products willterminate immediately. Upon terminationof a Subscription Term, your right to access and use the applicable softwareProducts will terminate immediately. Sightful will not have any liabilitywhatsoever to you for any suspension or termination of your rights under theseTerms. Even after your rights underthese Terms are terminated, the following provisions of these Terms will remainin effect: Sections 1.2, 1.4, 1.5, and2.5, 2.6, and 3 - 11.
10. ARBITRATIONCLAUSE AND CLASS ACTION WAIVER . Please read the followingarbitration agreement in this section (“Arbitration Agreement”) carefully. Itrequires that you and Sightful arbitrate disputes against one another.
Dispute Resolution: PLEASE BE AWARE THAT THIS SECTION10 CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND Sightful HAVEAGAINST EACH OTHER WILL BE RESOLVED. AMONG OTHER THINGS, THIS SECTION 10INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS,THAT ALL DISPUTES BETWEEN YOU AND SIGHTFUL BE RESOLVED BY BINDING AND FINALARBITRATION. THIS SECTION 10 ALSOCONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ THIS SECTION 10 CAREFULLY.
10.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, youand Sightful agree that any dispute, claim, or disagreement arising out of orrelating in any way to your access to or use of the Site, any communicationsyou receive, or the Terms, including claims and disputes that arose between usbefore the effective date of these Terms (each, a “Dispute”) will be resolved by binding arbitration, rather than incourt, except that: (1) you and Sightful may assert claims or seek relief insmall claims court if such claims qualify and remain in small claims court; and(2) you or Sightful may seek equitable relief in court for infringement or othermisuse of intellectual property rights (such as trademarks, trade dress, domainnames, trade secrets, copyrights, and patents). For purposes of thisArbitration Agreement, “Dispute” will also include disputes that arose orinvolve facts occurring before the existence of this or any prior versions ofthe Terms as well as claims that may arise after the termination of theseTerms.
10.2 Informal Dispute Resolution. There may be instances when a Dispute arises between youand Sightful. If that occurs, Sightful is committed to working with you toreach a reasonable resolution. You and Sightful agree that good faith informalefforts to resolve Disputes can result in a prompt, low‐cost and mutuallybeneficial outcome. You and Sightful therefore agree that before either partycommences arbitration against the other (or initiates an action in small claimscourt if a party so elects), we will personally meet and confer telephonicallyor via videoconference, in a good faith effort to resolve informally anyDispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented bycounsel, your counsel may participate in the conference, but you also agree toparticipate in the conference.
The party initiating a Dispute must give notice to theother party in writing of its intent to initiate an Informal Dispute ResolutionConference (“Notice”), which shalloccur within 45 days after the other party receives such Notice, unless anextension is mutually agreed upon by the parties in writing. Notice to Sightfulthat you intend to initiate an Informal Dispute Resolution Conference should besent by email to support@sightful.com. The Notice must include: (a) your name, telephonenumber, mailing address, e‐mail address associated with your account (if youhave one); (b) the name, telephone number, mailing address and e‐mail addressof your counsel, if any; and (c) a description of your Dispute.
The Informal Dispute Resolution Conference shall beindividualized such that a separate conference must be held each time eitherparty initiates a Dispute, even if the same law firm or group of law firmsrepresents multiple users in similar cases, unless all parties agree; multipleindividuals initiating a Dispute cannot participate in the same InformalDispute Resolution Conference unless all parties agree. In the time between aparty receiving the Notice and the Informal Dispute Resolution Conference, nothingin this Arbitration Agreement shall prohibit the parties from engaging ininformal communications to resolve the initiating party’s Dispute. Engaging inthe Informal Dispute Resolution Conference is a condition precedent andrequirement that must be fulfilled before commencing arbitration. The statuteof limitations and any filing fee deadlines shall be tolled while the partiesengage in the Informal Dispute Resolution Conference process required by thissection.
10.3 Waiver of Jury Trial. YOU AND SIGHTFUL HEREBY WAIVE ANYCONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONTOF A JUDGE OR A JURY. You and Sightful are instead electing that allDisputes shall be resolved by arbitration under this Arbitration Agreement,except as specified in the subsection entitled “Applicability of ArbitrationAgreement” above. There is no judge or jury in arbitration, and court review ofan arbitration award is subject to very limited review.
10.4 Waiver of Class and Other Non-Individualized Relief. YOU ANDSIGHTFUL AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 10.9 (BATCHARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON ANINDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, ANDTHE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD,ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE,OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORETHAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OFANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, thearbitrator may award declaratory or injunctive relief only in favor of theindividual party seeking relief and only to the extent necessary to providerelief warranted by the party's individual claim. Nothing in this paragraph isintended to, nor shall it, affect the terms and conditions under the subsection10.9 (Batch Arbitration) entitled “Batch Arbitration.” Notwithstanding anythingto the contrary in this Arbitration Agreement, if a court decides by means of afinal decision, not subject to any further appeal or recourse, that thelimitations of this subsection, “Waiver of Class and Other Non-IndividualizedRelief,” are invalid or unenforceable as to a particular claim or request forrelief (such as a request for public injunctive relief), you and Sightful agreethat that particular claim or request for relief (and only that particularclaim or request for relief) shall be severed from the arbitration and may belitigated in the state or federal courts located in New York, New York. Allother Disputes shall be arbitrated or litigated in small claims court. Thissubsection does not prevent you or Sightful from participating in a class-widesettlement of claims.
10.5 Rules and Forum. These Termsevidence a transaction involving interstate commerce; and notwithstanding anyother provision herein with respect to the applicable substantive law, theFederal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretationand enforcement of this Arbitration Agreement and any arbitration proceedings.If the Informal Dispute Resolution Process described above does not resolvesatisfactorily within sixty (60) days after receipt of Notice, you and Sightfulagree that either party shall have the right to finally resolve the Disputethrough binding arbitration. The arbitration will be conducted by JAMS, anestablished alternative dispute resolution provider. Disputes involving claims,counterclaims, or request for relief under $250,000, not inclusive ofattorneys’ fees and interest, shall be subject to JAMS’s most current versionof the Streamlined Arbitration Rules and procedures available athttp://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shallbe subject to JAMS’s most current version of the Comprehensive ArbitrationRules and Procedures, available athttp://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available atwww.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available toarbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees andcosts will be solely as set forth in the applicable JAMS rules.
A party who wishes to initiate arbitration must providethe other party with a request for arbitration (the “Request”). The Request must include: (i) the name, telephonenumber, mailing address, e‐mail address of the party seeking arbitration andthe account username (if applicable) as well as the email address associatedwith any applicable account; (ii) a statement of the legal claims beingasserted and the factual bases of those claims; (iii) a description of theremedy sought and an accurate, good‐faith calculation of the amount incontroversy in United States Dollars; (iv) a statement certifying completion ofthe Informal Dispute Resolution process as described above; and (v) evidencethat the requesting party has paid any necessary filing fees in connection withsuch arbitration.
If the party requesting arbitration is represented bycounsel, the Request shall also include counsel’s name, telephone number,mailing address, and email address. Such counsel must also sign the Request. Bysigning the Request, counsel certifies to the best of counsel’s knowledge,information, and belief, formed after an inquiry reasonable under thecircumstances, that: (i) the Request is not being presented for any improperpurpose, such as to harass, cause unnecessary delay, or needlessly increase thecost of dispute resolution; (ii) the claims, defenses and other legalcontentions are warranted by existing law or by a nonfrivolous argument forextending, modifying, or reversing existing law or for establishing new law;and (iii) the factual and damages contentions have evidentiary support or, ifspecifically so identified, will likely have evidentiary support after areasonable opportunity for further investigation or discovery.
Unless you and otherwise agree, or the Batch Arbitrationprocess discussed in subsection 10.9 (Batch Arbitration) is triggered, thearbitration will be conducted in the county where you reside. Subject to theapplicable JAMS rules, the arbitrator may direct a limited and reasonableexchange of information between the parties, consistent with the expeditednature of the arbitration.
You and Sightful agree that all materials and documentsexchanged during the arbitration proceedings shall be kept confidential andshall not be shared with anyone except the parties’ attorneys, accountants, orbusiness advisors, and then subject to the condition that they agree to keepall materials and documents exchanged during the arbitration proceedingsconfidential.
10.6 Arbitrator. The arbitrator will be either a retired judge or anattorney licensed to practice law in the state of New York and will be selectedby the parties from the JAMS roster of consumer dispute arbitrators. If theparties are unable to agree upon an arbitrator within thirty-five (35) days ofdelivery of the Request, then JAMS will appoint the arbitrator in accordancewith the applicable JAMS rules, provided that if the Batch Arbitration processunder subsection 10.9 (Batch Arbitration) is triggered, JAMS will appoint thearbitrator for each batch.
10.7 Authority of Arbitrator. The arbitratorshall have exclusive authority to resolve any Dispute, including, withoutlimitation, disputes arising out of or related to the interpretation orapplication of the Arbitration Agreement, including the enforceability,revocability, scope, or validity of the Arbitration Agreement or any portion ofthe Arbitration Agreement, except for the following: (i) all Disputes arisingout of or relating to the subsection entitled “Waiver of Class and Other Non-IndividualizedRelief,” including any claim that all or part of the subsection entitled“Waiver of Class and Other Non-Individualized Relief” is unenforceable,illegal, void or voidable, or that such subsection entitled “Waiver of Classand Other Non-Individualized Relief” has been breached, shall be decided by acourt of competent jurisdiction and not by an arbitrator; (ii) except asexpressly contemplated in the subsection entitled “Batch Arbitration,” allDisputes about the payment of arbitration fees shall be decided only by a courtof competent jurisdiction and not by an arbitrator; (iii) all Disputes aboutwhether either party has satisfied any condition precedent to arbitration shallbe decided only by a court of competent jurisdiction and not by an arbitrator;and (iv) all Disputes about which version of the Arbitration Agreement appliesshall be decided only by a court of competent jurisdiction and not by anarbitrator. The arbitration proceeding will not be consolidated with any othermatters or joined with any other cases or parties, except as expressly providedin the subsection entitled “Batch Arbitration.” The arbitrator shall have theauthority to grant motions dispositive of all or part of any Dispute. Thearbitrator shall issue a written award and statement of decision describing theessential findings and conclusions on which the award is based, including thecalculation of any damages awarded. The award of the arbitrator is final andbinding upon you and us. Judgment on the arbitration award may be entered inany court having jurisdiction.
10.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees andcosts in arbitration unless the arbitrator finds that either the substance ofthe Dispute or the relief sought in the Request was frivolous or was broughtfor an improper purpose (as measured by the standards set forth in Federal Ruleof Civil Procedure 11(b)). If you or Sightful need to invoke the authority of acourt of competent jurisdiction to compel arbitration, then the party thatobtains an order compelling arbitration in such action shall have the right tocollect from the other party its reasonable costs, necessary disbursements, andreasonable attorneys' fees incurred in securing an order compellingarbitration. The prevailing party in any court action relating to whethereither party has satisfied any condition precedent to arbitration, includingthe Informal Dispute Resolution Process, is entitled to recover theirreasonable costs, necessary disbursements, and reasonable attorneys’ fees andcosts.
10.9 Batch Arbitration. To increase the efficiency of administration andresolution of arbitrations, you and Sightful agree that in the event that thereare one hundred (100) or more individual Requests of a substantially similarnature filed against Sightful by or with the assistance of the same law firm,group of law firms, or organizations, within a thirty (30) day period (or assoon as possible thereafter), JAMS shall (i) administer the arbitration demandsin batches of 100 Requests per batch (plus, to the extent there are less than100 Requests left over after the batching described above, a final batchconsisting of the remaining Requests); (ii) appoint one arbitrator for eachbatch; and (iii) provide for the resolution of each batch as a singleconsolidated arbitration with one set of filing and administrative fees due perside per batch, one procedural calendar, one hearing (if any) in a place to bedetermined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantiallysimilar nature” if they arise out of or relate to the same event or factualscenario and raise the same or similar legal issues and seek the same orsimilar relief. To the extent the parties disagree on the application of theBatch Arbitration process, the disagreeing party shall advise JAMS, and JAMSshall appoint a sole standing arbitrator to determine the applicability of theBatch Arbitration process (“AdministrativeArbitrator”). In an effort to expedite resolution of any such dispute bythe Administrative Arbitrator, the parties agree the Administrative Arbitratormay set forth such procedures as are necessary to resolve any disputespromptly. The Administrative Arbitrator’s fees shall be paid by Sightful.
You and Sightful agree to cooperate in good faith withJAMS to implement the Batch Arbitration process including the payment of singlefiling and administrative fees for batches of Requests, as well as any steps tominimize the time and costs of arbitration, which may include: (i) theappointment of a discovery special master to assist the arbitrator in theresolution of discovery disputes; and (ii) the adoption of an expeditedcalendar of the arbitration proceedings. This Batch Arbitration provision shallin no way be interpreted as authorizing a class, collective and/or massarbitration or action of any kind, or arbitration involving joint orconsolidated claims under any circumstances, except as expressly set forth inthis provision.
10.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of thisArbitration Agreement by sending written notice of your decision to opt out to support@sightful.com, within thirty (30) days after first becoming subject tothis Arbitration Agreement. Your notice must include your name and address, theemail address you used to set up your Sightful account (if you have one), andan unequivocal statement that you want to opt out of this ArbitrationAgreement. If you opt out of this Arbitration Agreement, all other parts ofthese Terms of Sale will continue to apply to you. Opting out of thisArbitration Agreement has no effect on any other arbitration agreements thatyou may currently have, or may enter in the future, with us.
10.11 Invalidity, Expiration. Except as provided in the subsection entitled “Waiver ofClass or Other Non-Individualized Relief”, if any part or parts of thisArbitration Agreement are found under the law to be invalid or unenforceable,then such specific part or parts shall be of no force and effect and shall besevered and the remainder of the Arbitration Agreement shall continue in fullforce and effect. You further agree that any Dispute that you have withSightful as detailed in this Arbitration Agreement must be initiated via arbitrationwithin the applicable statute of limitation for that claim or controversy, orit will be forever time barred. Likewise, you agree that all applicablestatutes of limitation will apply to such arbitration in the same manner asthose statutes of limitation would apply in the applicable court of competentjurisdiction.
10.12 Modification. Notwithstanding any provision in these Terms to the contrary, weagree that if Sightful makes any future material change to this ArbitrationAgreement, it will notify you. Unless you reject the change within thirty (30)days of such change becoming effective by emailing Sightful at: support@sightful.com, your continued use of the Site, including the acceptanceof products offered on or through the Site, following the posting of changes tothis Arbitration Agreement constitutes your acceptance of any such changes.Changes to this Arbitration Agreement do not provide you with a new opportunityto opt out of the Arbitration Agreement if you have previously agreed to aversion of these Terms and did not validly opt out of arbitration. If youreject any change or update to this Arbitration Agreement, and you were boundby an existing agreement to arbitrate Disputes arising out of or relating inany way to your access to or use of the Site, , any communications you receive,or the Agreement, the provisions of this Arbitration Agreement as of the dateyou first accepted these Terms (or accepted any subsequent changes to theseTerms) remain in full force and effect. Sightful will continue to honor anyvalid opt outs of the Arbitration Agreement that you made to a prior version ofthese Terms.
11. GENERAL
11.1 Force Majeure. Sightful shall notbe liable to you for any failure to perform its obligations due to an eventbeyond Sightful’s control, including, but not limited to, any act of god,terrorism, war, political insurgence, insurrection, riot, civil unrest, act ofcivil or military authority, uprising, earthquake, flood, pandemic, epidemic,or any other natural or man-made eventuality outside of that party’s control,which causes the termination of an agreement or contract entered into, or whichcould not have been reasonably foreseen. In the event that Sightful is impactedby such an event, Sightful shall inform you and use all reasonable endeavors tocomply with these Terms of Sale.
11.2 Exclusive Venue. To the extent the parties are permitted under thisAgreement to initiate litigation in a court, both you and Sightful agree thatall claims and disputes arising out of or relating to this Agreement will belitigated exclusively in the state or federal courts located in New York, NewYork.
11.3 Disclosures. If you are a California resident, you may report complaints tothe Complaint Assistance Unit of the Division of Consumer Product of theCalifornia Department of Consumer Affairs by contacting them in writing at 400R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
11.4 Copyright/Trademark Information. Copyright © 2024, Sightful, Inc. All rights reserved.All trademarks, logos and service marks (“Marks”)displayed on the Site are our property or the property of other third parties.You are not permitted to use these Marks without our prior written consent orthe consent of such third party which may own the Marks. All goodwill generatedfrom the use of any Sightful Marks will inure to Sightful’s benefit.
11.5 Miscellaneous. The Agreement represents the entire agreement governingyour use of the Site, including your purchase of Products on the Site, and anyprior agreements have no force or effect. Our failure to exercise or enforceany right or provision of this Agreement shall not operate as a waiver of suchright or provision. Except as otherwise provided herein, no addition, amendmentto or modification of this Agreement shall be effective unless it is in writingand signed by and on behalf of both parties. The section titles in thisAgreement are for convenience only and have no legal or contractual effect. Theword “including” means “including without limitation”. If any provision of thisAgreement is, for any reason, held to be invalid or unenforceable, the otherprovisions of this Agreement will be unimpaired and the invalid orunenforceable provision will be deemed modified so that it is valid andenforceable to the maximum extent permitted by law. These Terms of Sale shallnot be governed by the United Nations Convention on Contracts for theInternational Sale of Goods, the application of which is expresslyexcluded. This Agreement shall be freelyassignable by Sightful. Except as otherwise expressly provided for in thisAgreement, you may not assign your rights and/or obligations under thisAgreement without the prior written consent of Sightful, which consent we maywithhold in our sole and absolute discretion.
11.6 Contact Information:
Sightful, Inc.
Email: support@sightful.com
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