BEMER USA, LLC, Terms & Conditions Lease to Own (USA)

1. Acceptance and Modification of Terms
   1. YOUR USE OF THE SITE AND THE PRODUCTS CONSTITUTES YOUR ACCEPTANCE OF THE AGREEMENT. IF YOU DO NOT AGREE, DO NOT USE THE SITE, SIGN UP FOR AN ACCOUNT, OR BUY THE PRODUCT.
   2. BEMER reserves the right, in its sole discretion, to change, modify, add or remove portions of these Terms, at any time. We will provide advance written notice to our IBDs of material changes. The most current version will be posted on the Site.
2. Registration
   1. When you set up an account with BEMER and register to place orders through the Site, you agree to (a) provide accurate, current and complete information about yourself, and (b) maintain and update your information (including your email address) to keep it accurate, current and complete. If any information changes, please contact BEMER to update your account.
   2. BEMER may refuse to grant you a username for any reason in its sole discretion, including in the event that we determine that such username impersonates someone else, is illegal, vulgar, or otherwise offensive, or is protected by trademark or other proprietary rights law, or otherwise may cause confusion. You acknowledge that BEMER reserves the right to terminate your access to and use of the Site in its sole discretion. Our use and disclosure of any such information that you provide is governed by our Privacy Policy.
   3. You are solely responsible for maintaining the confidentiality of your username and password and agree not to transfer or resell your use of or access to the Site to any third party. YOU ARE ALSO SOLELY RESPONSIBLE FOR ANY AND ALL ACTIVITIES (INCLUDING PURCHASES) THAT ARE CONDUCTED THROUGH YOUR ACCOUNT, AND BEMER DISCLAIMS ANY LIABILITY DERIVED THEREFROM.You acknowledge that payments made on your behalf from third parties may be accepted by the Site. If you suspect any unauthorized use of your password or account, you shall contact BEMER as soon as reasonably practicable.
   4. The following practices are strictly prohibited:
      1. the registration of individuals or entities without their knowledge or that do not exist;
      2. the fraudulent registration of an individual or entity on the Site as either an IBD or customer;
      3. purchasing BEMER products on behalf of another IBD or customer, or under another IBD’s or customer’s ID number;
      4. purchasing excessive amounts of products that cannot reasonably be used or resold in a month; and/or
      5. any other mechanism or artifice to qualify for rank advancement, incentives, prizes or commissions, that is not driven by bona fide product purchases by end consumers.
   5. You shall not use another person's credit card or debit card to make a product purchase or to without the other person’s written permission. Such documentation must be kept by you for seven (7) years and must be submitted to BEMER upon request.
3. Pricing and Payment
   1. Prices listed on the Site are in the currency as stated on the Site and do not include any shipping and handling charges or applicable taxes. Prices and any Products may change without notice.
   2. Orders may be placed on the Site (including any IBD web page) only. Manual orders may be placed only upon BEMER's written permission, which can be withheld in our sole discretion at any time and for any reason.
   3. Orders must be paid by one of the payment methods indicated on the Site, which includes credit card, debit card or the available financing options. We do not accept any payment method not indicated on the Site.
   4. You agree to pay all applicable taxes that arise in any jurisdiction, including without limitation, value added, consumption, sales or other taxes, fees, duties, or charges imposed on the sale of the Products (“Taxes”).
   5. You must provide current, complete and accurate billing and payment information. In certain instances, the issuer of your credit card or your payment provider may charge you a transaction fee or related charges, which you will be responsible to pay.
   6. Verification of information applicable to a purchase may be required prior to our acceptance of any order. If an order is declined, it is your responsibility to provide an alternative form of credit or debit card for the purchase. Declined orders must be completely re-entered as a new order.
4. Financing
   1. Subject to credit approval, BEMER offers a financing option through a selected third party service provider. A purchaser must pre-qualify and if they do, they will get their individual APR and available payment terms.
   2. Products paid for via financing must only be used for personal, family or household (including animal) use. Financed products must not be used for business purposes.
   3. Orders paid for via the financing option must be placed by the purchaser themselves. At no time can an IBD fill out the application for financing on behalf of another person, including a spouse.
   4. For regulatory reasons, the financing option is not available for applicants who reside in West Virginia, Iowa and Idaho.
   5. To return a financed order under the 30-day money back guarantee, contact BEMER. A 10% restocking fee will need to be obtained via credit card in order to initiate the return process. No returns will be authorized past 30 days or receipt of the 10% restocking fee.
5. Lease to Own Program
   1. If you purchase a product under the Lease to Own program, you agree to make two initial payments at time of purchase:
      1. an initial down payment in the amount set forth on the website (currently $800, subject to change); and
      2. an administration fee in the amount set forth on the website (currently $99, subject to change).
   2. Both payments are absolutely non-refundable.
   3. Bread Financing is not available for these initial two payments.
   4. For the period of eight (8) weeks from the date of purchase (the “Tryout Period”), you obtain the right to use the product. Ownership of the product remains with BEMER.
   5. At any time within the Tryout Period, ownership of the product transfers to you and you are obligated to pay the outstanding balance in accordance with the correspondence sent by BEMER, using one or multiple credit cards or use Bread Financing, if available to you; unless you return the product to BEMER within seven (7) days of the expiration of the Tryout Period in the original packaging, using the RMA label that was included with the delivery of the product.
   6. Any commissions associated with a purchase in the Lease to Own program are paid only upon BEMER’s receipt of the final payment. For clarity, the payment of the initial two payments themselves are not commissionable.
   7. Past due amounts shall accrue interest at a rate of One and a Half Percent (1.5%) per month or the highest rate allowed by law, whichever is lower, beginning from the date first due until paid in full. You shall pay all collections costs incurred by BEMER, including without limitation reasonable attorney’s fees.
   8. If you are currently an IBD, or will become an IBD at any time in the future, you agree that you have read, understood, and agree to be bound by Section 5.C of the BEMER Policies & Procedures, which states in relevant part:
      For any amounts that BEMER determines the IBD owes the company at any time (including at time of termination of the distributorship), BEMER may (a) offset any amounts that are payable by the IBD to BEMER against any payments BEMER may make to the IBD or amounts that BEMER may owe the IBD; (b) invoice the IBD for amounts due to BEMER, in which case the IBD will pay the invoiced amounts upon receipt; (c) reverse any credits to the IBD's bank account or eWallet account; or (d) collect payment or reimbursement from the IBD by any other lawful means, including without limitation through a collections company. If BEMER determines that the IBD's account has been used to engage in deceptive, fraudulent, or illegal activity, or to repeatedly violates our Policies & Procedures, then BEMER may in its sole discretion permanently withhold any payments to the IBD.
6. Delivery
   1. The delivery date specified in the Order Confirmation is an estimate, and the ultimate responsibility lies with our carrier. The place of delivery is as stated in the order confirmation.
   2. BEMER will pack the Products in accordance with its standard practices.
   3. For practical reasons, BEMER reserves the right to make partial shipments (at no additional cost to you), and the portion of any order that is partially shipped may be charged at the time of shipment.
   4. If the shipping address changes in financed transactions and the order has not shipped yet, BEMER will cancel the order and terminate the financing. If the order has already shipped and is in transit, the customer will be required to re-route the order back to the BEMER office, and Bemer will cancel the order and terminate the financing upon receipt of the product. Upon order and financing cancellation, the customer can place the order again on the BEMER Webshop, using the correct information.
   5. Title and risk of loss for any purchases will pass to you upon BEMER's delivery of the Products to the carrier.
7. No Medical Advice
   1. Nothing provided by BEMER in connection with the products or services shall be construed to constitute professional medical advice, diagnoses, or treatment, and the IBD should not rely on them as such. You are advised to consult with a physician prior to utilizing any BEMER product, especially in case of a medical emergency, medical concerns, pre-existing injuries or condition.
   2. BEMER does not promise or guarantee any particular results, regardless of whether you follow all the recommendations provided by BEMER. BEMER products may operate differently and/or may provide unique results for each individual utilizing the products. In order to optimize results, it is urged that each individual discuss with the IBD any concerns and/or questions that may arise.Customers utilizing any BEMER product is urged to consult with a physician prior to utilizing any BEMER product.
   3. You assume all risk and liability for condition of the product, or loss or damage resulting from the handling, use or application of the product, upon delivery hereunder, subject to any warranties in place for the product.
8. Product Registration
   1. Registration of the Product with BEMER occurs automatically when sales are charged and shipped by BEMER to a customer.
   2. In the event that a BEMER product is sold directly by a Independent BEMER Distributor (IBD) to a customer, it is the responsibility of the IBD to issue the customer an invoice containing the serial number of the BEMER product sold and language advising the customer that it is their responsibility to register the product with BEMER to ensure product purchase confirmation and satisfaction of any return and/or warranty issues. It is the responsibility of the customer, thereupon, to register the product with BEMER.
9. Return Policy
   1. BEMER requests that you provide notice to BEMER within 24 hours of delivery of any missing items or damage, or as soon you discover the defect.
   2. BEMER offers a three (3) day cancellation guarantee for all purchases (whether paid by credit card or through financing), equal to the full the purchase price, provided that the product is returned in its original manufacturer’s box, is complete with all set components, and is found to be in acceptable and undamaged condition. 
   3. At BEMER, we believe in the exceptional value and effectiveness of all of our products. We work very hard to ensure that you will share our satisfaction with the functionality and reliability of our merchandise. BEMER offers a thirty (30) day money back guarantee from the date of the product receipt for all purchases equal to a 90% refund of the purchase price (i.e. a 10% restocking fee applies), provided that the product is returned in its original manufacturer’s box, is complete and with all set components, and found to be in acceptable and undamaged condition. We must levy a restocking fee of 10% of the cost of items returned. Please note that BEMER products are defined as medical devices per the Federal Food Drug & Cosmetic Act. Medical devices are personal in nature and therefore cannot be resold once opened, whether the equipment shows usage or not.
   4. Financed purchases are eligible for the same thirty (30) day money back guarantee as set forth directly above; provided that BEMER will collect the 10% restocking fee from the customer before issuing the refund by means of a separate credit card transaction. NOTE: Financing will be terminated only upon receipt of the returned product and processing of the return by BEMER. The first installment payment for financed purchases is due 30 days from the date of purchase. Interest charges will begin to accrue on the 30th day after date of purchase. In order to avoid interest cost being charged to you, you are advised to return the product to BEMER at least 20 days after your purchase.
   5. In the event that a BEMER product is sold directly by an IBD to a customer from the IBD’s private inventory, it is the responsibility of the IBD to guarantee that the same return policy as outlined herein is followed.If a customer becomes an IBD within the 30-day period, the money back guarantee is no longer applicable.
   6. If you ever have a question or problem with our products, we always encourage you to let us know. E-mail our Product Support team at product-support@bemer.services.
   7. Return Process: All returns must be made as follows:
      1. Obtain Return Merchandise Authorization (“RMA”) label from BEMER;
      2. Ship items using the RMA label provided by BEMER; and
      3. Ship back product in manufacturer’s box exactly as it was delivered.
   8. All returns must be shipped to BEMER using the RMA label provided by BEMER. BEMER does not accept shipping collect packages or deliveries without a prior BEMER-provided label. If returned product is not received at the BEMER location in Carlsbad, CA, it is your responsibility to trace the shipment and no credit will be applied.
10. Warranty
    1. All BEMER products have an automatic three (3) year warranty beginning from the date of purchase (date on the invoice), with the exception of the B.Light and the Rechargeable Battery, which have a six (6) month warranty. The warranty only covers manufacturer defects.
    2. If you are having technical issues with your BEMER set and it is within the warranty period, please follow the steps below:
    3. Submit a request ticket to BEMER by emailing product-support@bemer.services with the following information:
       1. The set and product serial number located on the BEMER invoice you received (sent via email upon receipt of purchase and/or invoice in the delivered box);
       2. Name of the exact product you are having an issue with (e.g., B.Grip, B.Spot, B.Body, B.Box);
       3. The invoice number and BEMER Set serial number (Pro set starts with 410200 and Classic Set starts with 410100);
       4. A detailed description of the issue;
       5. The best contact number to reach you (should the technician need to contact you to trouble shoot); and
       6. Picture(s) depicting the issue, as applicable.
    4. After your request ticket is reviewed, if BEMER determines that the item(s) need to be replaced under warranty:
       1. Defective part must be returned to BEMER (using the return label provided);
       2. All replacements are shipped UPS Ground;
       3. BEMER will send the replacement item to you at no cost; and
       4. BEMER will assume the two-way shipping costs for warranty claims (Please inspect the replacing product upon receipt and report and manufacturer defects)
11. Third Party Access
    1. The Site may contain website links, functionalities as well as advertisements, promotions, products or services of third parties that are not owned or controlled by BEMER (collectively, “Third Party Content”). BEMER does not control or endorse such Third Party Content, and is not responsible or liable for the terms, conditions, privacy policies, actions, inactions, opinions, advice, statements, offers, warranties, representations, content or functionality of any such third party or its site. YOUR USE OF THIRD-PARTY WEBSITES AND RESOURCES IS AT YOUR OWN RISK. BEMER is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third party advertisers on the Site. You agree to indemnify and hold BEMER harmless in the event of any claim related to Third Party Content.
12. Intellectual Property Rights
    1. By using the Site and Products, you acknowledge that, as between you and BEMER, BEMER owns all right, title and interest in any software, code, system, technology, content, product designs, logos, trademarks, text, editorial content, data, formatting, graphs, graphics, user interfaces, visual interfaces, photographs, artwork and computer code, HTML, “look and feel,” software layout, music, sounds, images, software, videos, designs, typefaces and other intellectual property used or embedded in the Product or the Site (the “BEMER IP”). You may not use, display, rent, lease, loan, transfer, assign, sell, copy, reproduce, distribute, download, reverse engineer, frame, scrape or modify any of the BEMER IP or to prepare a derivative work based on the BEMER IP. In connections with your use of the BEMER Products and Site, you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by BEMER from accessing the Site (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address).
    2. Provided that you are eligible for use of the Site and the Products, you are granted a limited, revocable, nonsublicensable, nontransferable and non-exclusive right to access and use the BEMER IP and the Site solely for your personal, non-commercial use (including to access any disclosures).Any other use of the BEMER IP is strictly prohibited and will terminate the license granted herein. Any rights not expressly granted herein are reserved by BEMER. Nothing in these Terms should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of BEMER’s logos or other trademarks (“Trademarks”) displayed on the Site or Products, without our prior written permission in each instance.
13. Data Ownership and Privacy.
    1. BEMER collects certain personal information such as your name, phone number, e-mail address, shipping and billing address, credit card information and other information so we can fulfill your order. BEMER also collects information about your Site usage, device information, location information, and web navigational data to enable us to enhance your experience on the Site. In addition, BEMER also collects various personal information via the mobile application related to your use of the Product. For more information about BEMER’s privacy practices, please read our Privacy Policy.
    2. You shall have all rights, title or interest to any data, property or information collected by BEMER on behalf of you in connection with its performance under the Agreement, including without limitation any data transmitted from the Product to the mobile application and BEMER’s servers; provided, however, that nothing contained herein shall affect BEMER’s rights, title or interest to any data, property or information generated, compiled or analyzed by BEMER in connection with its performance under the Agreement, including without limitation any analyzes or reports of aggregated data.
14. Representations & Warranties
    1. By accepting this Agreement, you hereby represent and warrant the following:
       1. I am a competent adult who has reached the age of majority in my jurisdiction of residence;
       2. I am permitted by applicable law to receive the product I am requesting for my personal purposes;
       3. I am the authorized party and (if applicable) signatory to the payment mechanism used to open and maintain my account and place this Product purchase;
       4. I have not falsely identified myself nor provided any false information to purchase the Products or gain access to the Site;
       5. My payment information is correct and complete, and I will pay any applicable shipping and handling charges and applicable taxes;
       6. I am not accessing and have not accessed the Site or purchased the Product to commit illegal acts or violate any provisions of this Agreement;
       7. I understand the product(s) purchased from BEMER are not intended for use in diagnosis, treatment, cure, or mitigation of any specific disease, and BEMER does not provide medical services or medical advice;
       8. I acknowledge that the IBD are independent contractors and not employees of BEMER, and are not authorized to bind BEMER in any legal agreement or contract;
       9. I will at all times during the term of this Agreement comply with the terms of this Agreement and any applicable domestic or international laws; AND
       10. I ACKNOWLEDGE THAT SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE BELOW MAY OR MAY NOT APPLY TO ME.
15. Indemnification and Release
    1. You agree to release, defend, indemnify and hold harmless BEMER, its parent, subsidiaries and affiliates, and their respective officers, directors, employees, agents, attorneys, successors, and permitted assigns, from all loss, liabilities, damages, costs and expenses (including reasonable attorneys’ fees, litigation costs and expenses) incurred by us for any claims or actions for any kind or injury (including property damage or personal injury), whether a claim is based on breach of contract, tort, product liability, or breach of warranty, arising directly or indirectly out of or in connection with (a) this Agreement, including the representations and warranties made herein; (b) your use of the Products; or (c) your nonpayment of any Taxes, as defined above.
    2. You agree to fully cooperate at your expense as reasonably required by BEMER. BEMER may, at its election, assume the defense and control of any matter for which it is indemnified hereunder. You shall not settle any matter involving BEMER without the consent of BEMER.
16. Disclaimers
    1. Warranty Disclaimer: BEMER represents and warrants that it provides the Site and Products in a manner consistent with general industry standards reasonably applicable to the provision thereof. EXCEPT AS SET FORTH HEREIN, BEMER MAKES NO FURTHER WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SITE OR PRODUCTS, AND HEREBY DISCLAIMS ALL OTHER WARRANTIES (EXPRESS OR IMPLIED) INCLUDING, BUT NOT LIMITED TO THE IMPLIED INDEMNITIES AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. BEMER DOES NOT REPRESENT OR WARRANT THAT THE SITE OR PRODUCTS WILL MEET ANY OF YOUR EXPECTATIONS OR REQUIREMENTS OR THAT THE SITE OR PRODUCTS ARE PROVIDED SECURELY OR WITHOUT ERRORS. THE SITE AND PRODUCTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WE MAKE NO WARRANTIES THAT THE SITE AND PRODUCTS WILL BE TIMELY, ACCURATE OR AVAILABLE AT ALL TIMES WITHOUT INTERRUPTIONS. THE USE OF THE SITE AND PRODUCTS IS AT YOUR SOLE DISCRETION AND RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BEMER, ABOUT THE PRODUCTS WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
    2. BEMER is not responsible for the intentional or negligent acts or omissions of any health care provider or BEMER IBD who referred you to the BEMER product, or to whom BEMER may have referred you to.
    3. IBD web pages: If you are registering on the Site as an IBD at time of your purchase, we may provide you with access to and use of certain personalized pages on the Site and the corresponding web address (URL). However, we do not guarantee the availability of any particular web page or URL, and we reserve the right, at any time and in our sole discretion, to reclaim, suspend, terminate and/or transfer any such web page or URL as described in the IBD Agreement.
    4. Medical Disclaimer: BEMER does not provide any medical advice or services. Nothing provided by BEMER in connection with the Site or Products shall be construed to constitute professional medical advice, diagnosis, or treatment, and you should not rely on them as such. Please consult with a licensed health care provider if you have any medical concerns, pre-existing injuries or conditions. If you think you may have a medical emergency, call 911 or your healthcare provider immediately.
17. Limitation of Liability
    1. To the extent permitted by applicable law, BEMER SHALL NOT BE LIABLE FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL , INCLUDING FOR ANY LOST PROFITS OR LOST DATA, WHETHER ARISING IN AN ACTION FOR BREACH OF CONTRACT, TORT OR ANY OTHER CAUSE OR THEORY OF LIABILITY. BEMER SHALL NOT BE LIABLE TO YOU OR ANYONE THIRD PARTY FOR ANY LOSS OR INJURY ARISING FROM YOUR USE OF (OR INABILITY TO USE) OF THE SITE OR PRODUCTS OR OTHERWISE ARISING UNDER OR RELATING TO THESE TERMS.
    2. YOU AGREE AND ACKNOWLEDGE THAT THE TOTAL AMOUNT OF BEMER’S LIABILITY, IF ANY, FOR ANY AND ALL CLAIMS, CAUSES OF ACTION, LOSSES, DAMAGES, OR JUDGMENTS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCTS SHALL NOT EXCEED THE COST OF THE PRODUCT AT ISSUE or $500.00, WHICHEVER IS GREATER. WITHOUT REGARD TO THE NATURE OF THE CLAIM, LOSSES OR DAMAGES INCURRED. YOU EXPRESSLY UNDERSTAND AND AGREE THAT BEMER WOULD NOT PROVIDE THE SITE OR PRODUCTS TO YOU WITHOUT SUCH LIMITATIONS.
    3. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. Accordingly, some of the above limitations may not apply to you.
18. Miscellaneous Provisions
    1. Applicable law and venue: These Terms will be governed by and in accordance with laws of the State of California without regard to any principles of conflict of laws that would require or permit the application of the laws of any other jurisdiction. Any dispute or claim arising under these Terms shall be resolved exclusively in the state or federal courts in California, with venue in San Diego, California. You hereby agree, and waive any objection to, service of process on you by means of mail or email sent to your account. In the event of a dispute to collect amounts due for products provided to you, BEMER shall be entitled to recover attorneys' fees and costs.
    2. Force Majeure: Except for payment obligations, neither party shall be liable for any inadequate performance, failure or delay caused by any condition beyond its reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance). If BEMER is unable to deliver the Site or Products, it will use best efforts to make the delivery at the next practicable opportunity.
    3. Notice: By using the Site or Products, you consent to receiving electronic communications from BEMER. You agree that any notice, agreements, disclosure or other communications that we send to you electronically will satisfy any legal requirements for written communication, including without limitation service of process.
    4. Entire Agreement: This Agreement, which includes the Privacy Policy, constitutes the entire understanding between you and BEMER about your purchase and use of the Products, and supersedes all prior or contemporaneous oral or written understandings and agreements concerning the subject matter of this Agreement.
    5. Severability: Should any provision of these Terms be held invalid void, or otherwise unenforceable, that provision shall be deleted, but all other provisions shall continue in full force and effect.
    6. Waiver: Failure or neglect by BEMER to enforce any of the provisions of these Terms shall not be construed or deemed a waiver of its rights nor shall this affect the validity of the whole or any part of these Terms, nor prejudice BEMER's rights to take subsequent action.
    7. Notice for California Users: Under California Civil Code Section 1789.3, California users of the Site receive the following consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
    8. Statute of Limitations: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms must be filed within one (1) year after such claim or cause of action arose or within the shortest limit permitted under applicable law or be forever barred.
    9. No Class Actions: You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed under this Agreement.