TERMS OF SALE AGREEMENT
Updated January 27, 2017
Please read this Agreement carefully. It contains very important information about Customer’s rights and obligations, as well as limitations and exclusions. Please note that this Agreement (see section 18 below) contains a mandatory dispute resolution provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions and (see section 18 below) provides that the laws of the State of New York consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction, govern all adversarial proceedings arising out of this Agreement or the subject matter of this Agreement.
This Sphero, Inc. Terms of Sale Agreement (this “Agreement”) is between Sphero, Inc., doing business in New York as littleBits Electronics, and the customer identified in the Transaction Document that specifically references this Agreement (“Customer”), and describes the terms that apply to the provision and use of the Products specified in the Transaction Document. The parties agree as follows:
- littleBits is willing to provide the Products to Customer only on the condition that Customer first accepts this Agreement (including the Transaction Document). Customer accepts this Agreement (including the Transaction Document) by doing any one or more of the following: (1) signing (by hand or electronically) the Transaction Document or issuing a purchase order or similar document referencing the Transaction Document; (2) clicking the “I Accept” button (or functional equivalent) where this option is made available to you as part of an online Transaction Document; (3) using or allowing others to use one or more applicable Products; or (4) making any payment required under the Transaction Document.
- If an individual accepts this Agreement on behalf of another Person, that individual represents that he or she is duly authorized to bind that Person to this Agreement. If that individual does not have that authority, or if that individual does not agree to the terms of this Agreement, that individual must not accept this Agreement (and must click the “I Decline” button (or functional equivalent) where this option is made available as part of the online Transaction Document).
- In this Agreement, the following definitions apply:
“Consumer” means an individual who purchased one or more Products for use for personal, family, or household purposes only.
“Government Body” means (1) the government of a country or of a political subdivision of a country, (2) an instrumentality of any such government, (3) any other individual, entity, or organization authorized by law to perform any executive, legislative, judicial, regulatory, administrative, military, or police functions of any such government, or (4) an intergovernmental organization.
“Hardware Product” means a tangible device (including one or more circuit boards offered as a module or kit), its User Documentation, and all Licensed Software preloaded on that device.
“Licensed Software” means a computer software program, whether preloaded on a Hardware Product or provided separately as a standalone Product, including related licensed materials such as User Documentation, and any modified, updated or enhanced versions of the foregoing that littleBits provides to Customer under this Agreement or a separate agreement (such as a support and maintenance agreement).
“Person” means an individual, an entity or organization (including a partnership), or a Government Body.
“Products” means those Hardware Products, parts, accessories, Licensed Software, and Services listed in the Transaction Document.
“Services” means littleBits services (including online training courses related to the use and operation of Hardware Products) specified in the Transaction Document.
“Transaction Document” means the offline or online quotation, sales order, invoice, or other transaction-specific document or online ordering process provided by littleBits that specifically references this Agreement and contains the details of Customer’s Products purchase, including the Products to be provided by littleBits, the applicable prices, the street address of Customer’s requested delivery location, and any requirements, specifications, schedules, or terms in addition to those specified in this Agreement.
“User Documentation” means the user documentation accompanying a Hardware Product or Licensed Software furnished to Customer by littleBits.
- The Transaction Document is governed by this Agreement, and littleBits shall provide to Customer the Products specified in the Transaction Document in accordance with, and subject to, this Agreement and any additional terms specified in the Transaction Document. If the Transaction Document conflicts with this Agreement (excluding the Transaction Document), this Agreement will prevail unless the Transaction Document specifically (and not generally) identifies the conflicting terms in this Agreement and explicitly states that those terms do not apply but instead are superseded by the Transaction Document, in which case the Transaction Document will prevail. The term “this Agreement,” whenever used in this Agreement, means, collectively, this Terms of Sale Agreement and the Transaction Document unless the context clearly states otherwise.
- Regardless of whether the Transaction Document is construed as an invitation to bargain, an offer, or an acceptance of Customer’s offer, this Agreement constitutes the entire understanding between the parties with respect to the subject matter of this Agreement, and supersedes all other agreements, whether written or oral, between the parties with respect to that subject matter. This Agreement and littleBits’s acceptance of Customer’s order for Products (or if for any reason Customer’s issuance of an order for Products is deemed an acceptance of a prior offer by littleBits, that acceptance by Customer) is expressly limited to, and expressly made conditional on, Customer’s acceptance of the terms of this Agreement, and littleBits hereby objects to any different or additional terms, including any such different or additional terms in Customer’s purchase order, acknowledgement, or other documentation or communications relating to the subject matter of this Agreement.
- Customer hereby consents to this Agreement (including the Transaction Document) being formed electronically or otherwise without the need for a signature by either Customer or littleBits. A printed version of this Agreement (including the Transaction Document) and a printed version of any notice in connection with this Agreement given by littleBits in electronic form is admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records generated and maintained in printed form by littleBits.
- Except as otherwise provided in the Transaction Document, (1) littleBits shall ship Products FCA (Incoterms 2010) littleBits’s shipping facility, in which case Customer is responsible for carrier selection, carrier freight payments, and routing instructions (subject to littleBits’s reasonable approval), and tracking and tracing freight in transit (except that if Customer is a Consumer, as an accommodation to Customer littleBits will arrange for loading and shipping of the Products by a littleBits-selected carrier and any applicable freight charges will be specified in the Transaction Document), (2) delivery of a Product to a carrier at littleBits’s shipping facility constitutes delivery to Customer, and (3) Customer assumes risk of loss to that Product and the expense and responsibility for insuring, loss of, or damage to that Product during and after that delivery, and any claims for loss or damage to Products in transit must be made to the carrier or Customer’s insurer and not to littleBits (except that if Customer is a Consumer, as an accommodation to Customer littleBits shall cause each Product to be covered by insurance, arranged and paid for by littleBits for Customer, covering the period until it is delivered to Customer’s requested delivery location specified in the Transaction Document, and for any loss or damage during shipment, Customer shall report the loss or damage in writing to littleBits within 10 business days after delivery and follow any applicable claim procedure specified by littleBits or the insurer. Products will be deemed accepted upon receipt.
- Except as otherwise provided in the Transaction Document, (1) shipping dates provided by littleBits are estimates only and are conditioned on Customer’s timely provision of all necessary shipping and other information and (2) littleBits may make delivery in installments, in which case littleBits may separately invoice Customer for each installment and Customer shall pay each such invoice without regard to subsequent deliveries. littleBits shall use reasonable commercial efforts to meet estimated or requested shipment dates, but littleBits is not liable to Customer for any late shipment. If littleBits’s inventory of Products is insufficient to meet Product orders that littleBits has accepted, littleBits may allocate its available inventory on a basis that littleBits reasonably determines is equitable.
Title and Security Interest.
- Title to a Product passes to Customer (or if applicable, Customer’s lessor) when littleBits delivers that Product in accordance with section 1 (Delivery), except that, with respect to Licensed Software and User Documentation, title will pass only with respect to the tangible copies of that Licensed Software and User Documentation and title to the intellectual property rights embodied in or practiced by that Licensed Software and User Documentation will remain at all times with littleBits and/or its licensors.
- If Customer is not a Consumer: (1) Customer hereby grants littleBits a purchase money security interest in Products Customer purchases and in any proceeds thereof, including insurance proceeds, until littleBits receives all amounts due for that Product; (2) Customer shall sign and deliver all documents reasonably requested by littleBits to protect and maintain littleBits’s security interest; and (3) Customer hereby authorizes littleBits to file any financing statements or other filings (including a UCC-1 financing statement) to protect littleBits’s purchase money security interest.
- If Customer is not a Consumer and if Customer fails to pay in accordance with this Agreement the amount due to littleBits for one or more Products, (1) in addition to any other remedies available to littleBits, littleBits may, and Customer hereby authorizes littleBits to, enter Customer’s premises and recover possession of those Products without the necessity of notifying Customer of breach or obtaining a court order, and (2) Customer shall do all things and take all actions necessary to assist littleBits in exercising littleBits’s rights under this section 3.
Prices and Payment.
- Customer shall pay all applicable charges for the Products in accordance with the pricing, amounts, and payment terms stated in the Transaction Document. If no payment terms are stated in the Transaction Document, the payment terms are payment in advance of shipment. If any Government Body imposes a tax, duty, levy, or fee, excluding those based on littleBits’s net income, upon any Products supplied by littleBits under this Agreement, Customer shall pay that amount as specified in the applicable Transaction Document or littleBits’s invoice or supply littleBits. with tax exemption documentation (g., a resale certificate) in which case littleBits will not collect the taxes covered by that exemption documentation.
- If Customer pays with a credit card (in this Agreement, the term “credit card” includes a credit card or a debit card) for amounts payable under the Transaction Document, littleBits will bill Customer’s credit card for those amounts. Customer shall provide littleBits with accurate and complete billing information, including Customer’s name, address, telephone number, and valid credit card information, and shall promptly notify littleBits of changes in that information. Customer acknowledges that the agreement between Customer and the applicable credit card issuer governs Customer’s use of Customer’s credit card for payment of amounts owed to littleBits, including Customer’s rights and obligations as a holder of that card. If littleBits does not receive payment from Customer’s credit card issuer, upon demand Customer shall pay the overdue amount by other means acceptable to littleBits. littleBits may accept other forms of payment, and if littleBits invoices Customer for amounts payable under the Transaction Document, Customer shall pay to littleBits the amount indicated in each invoice by the due date reflected on the invoice.
- Customer shall make all payments in U.S. Dollars without offset, reduction, or abatement. Except as otherwise provided in section 5 (30-Day Refund Policy) or section 13 (Limited Warranty), all Product purchases are nonrefundable, nonreturnable, and cannot be exchanged.
- If Customer fails to pay in accordance with this Agreement, in addition to any other remedies available to littleBits, littleBits may charge daily interest from the original due date at the rate of the lesser of 1.5% per month or the maximum amount permissible by law, suspend the delivery of Products, or both. Customer shall reimburse littleBits for all reasonable expenses incurred by littleBits in collecting past due amounts, including wire transfer fees, collection agency fees, reasonable attorneys’ fees, and court costs.
- 30-Day Refund Policy. If at any time within 30 days after receiving a Product Customer is not 100% satisfied with that Product for any reason, Customer may return the Product to littleBits for a full refund of the purchase price and sales tax (but not the shipping charges) on condition that (1) Customer obtains a return merchandise authorization (RMA) number from littleBits and follows littleBits’s then-current RMA procedures, (2) Customer ships, at Customer’s expense and risk of loss, the returned Product to littleBits’s facility specified by littleBits in its RMA procedures, and (3) each returned Product is received by littleBits (not postmarked) in undamaged condition on or before the 30th day after the date the RMA number is issued by littleBits. Customer will not receive a refund if the Product is returned in damaged condition or more than 30 days after the date Customer’s RMA number is issued by littleBits. littleBits shall notify Customer via email after Customer’s return and refund request has been received and processed, which processing normally takes one to two weeks. littleBits shall issue refunds to the credit card or other payment method Customer used to place the Transaction Document. It normally takes five to ten business days for financial institutions to post a refund transaction. This 30-day refund policy only covers Products purchased directly from littleBits, and does not extend to Products purchased from other sources. Proof of direct purchase from littleBits is required for eligibility for this 30-day refund policy.
- Licensed Software. Licensed Software included in any Hardware Product or offered as a standalone Product is licensed and not sold and is governed by the littleBits Software End User License Agreement that is included with or in the installation sequence for that Licensed Software (the “End User License Agreement”), or if no End User License Agreement is included with or in the installation sequence for that Licensed Software, then subject to Customer’s compliance with the terms of this Agreement, littleBits hereby grants Customer a personal, nonexclusive license to access and use that Licensed Software solely as necessary for Customer to enjoy the benefit of the Hardware Products in which that Licensed Software is included or for which that Licensed Software is designed to be used.
- littleBits shall provide Services under the terms of this Agreement and any additional terms specified in the Transaction Document.
- Customer shall, at Customer’s expense, provide littleBits with all reasonable cooperation necessary or appropriate for the performance of Services, including (if necessary) providing sufficient and safe access (including remote access) to Customer’s facilities, systems, information, personnel, and resources. If Customer is making available to littleBits any facilities, software, hardware, or other resources in connection with littleBits’s performance of Services, Customer shall obtain any licenses or approvals related to those resources that are necessary for littleBits to perform the Services, and Customer shall reimburse littleBits for reasonable expenses and other amounts that littleBits incurs as a result of the failure to obtain any such licenses or approvals.
- Product Changes. littleBits may make changes in the Products or substitute Products of later design to fill Customer’s Transaction Document. In the event of any such change or substitution, Customer acknowledges that littleBits is not obligated to change or replace any Products previously delivered to Customer before that change or substitution.
- United States Government End Users. If Customer is an office, agency, or branch of the United States Government, Customer acknowledges that the Products are provided as commercial items under the applicable civilian and military Federal Acquisition Regulations (FARs) and any supplement thereto, and with only those rights as are stated in this Agreement.
- Export Controls. Customer acknowledges that the Products are of U.S. origin. The Products might contain functionality that is subject to United States export controls. Customer shall comply with all applicable export and import control laws in connection with Customer’s use of the Products and Customer shall not export or re-export the Products, directly or indirectly, to any country, or to any agent, representative, or foreign national of any country, without first obtaining all licenses required under export control laws. Upon Customer’s written request, littleBits shall advise Customer of all applicable export classifications of the Products. In addition, Customer shall not use the Products if Customer is located in a country embargoed by the United States or Customer is on the United States Treasury Department’s list of Specially Designated Nationals or the United States Commerce Department’s Table of Deny Transaction Documents. Customer represents that Customer is not located in, under the control of, or a national or resident of any such country or on any such list.
- Intellectual Property. Customer acknowledges that littleBits (or littleBits’s suppliers) owns all interest in and to the Products, including all intellectual property rights embodied in or practiced by the Products. Customer acknowledges that the Products might include items provided by littleBits’s suppliers, and these suppliers are intended third party beneficiaries of this Agreement and may enforce the provisions of this Agreement directly against Customer. littleBits reserves all rights not expressly granted under this Agreement.
- Limited Warranty. “Warrantied Product” means a Hardware Product covered by littleBits’s standard limited warranty that is either (1) included in a written warranty statement with the Product or (2) littleBits’s standard limited warranty in force when the Product is delivered by littleBits to Customer, which standard limited warranty is available in its current version at com/warranty (the “Limited Warranty”). littleBits provides a Limited Warranty for Warrantied Products, subject to the limitations and exclusions stated in the Limited Warranty. littleBits provides Services and Third Party Products “as is” without any warranties, including any warranty of merchantability, noninfringement, and fitness for a particular purpose.
- Limit of Liability. To the fullest extent permitted by law, littleBits's entire liability for all claims in the aggregate arising out of this Agreement will not exceed the amount of any actual direct damages up to the greater of $10,000 or the charges (if recurring, up to a maximum of 12 months’ charges) actually paid by Customer under the Transaction Document, regardless of the basis of the claim and regardless of whether any remedy provided by littlebits fails of its essential purpose. This limit also applies to littleBits’s suppliers and subcontractors, and is the maximum for which littleBits and its suppliers and subcontractors are collectively liable. This limit does not apply to damages for bodily injury (including death), or damage to real or tangible personal property for which littleBits, or its suppliers and subcontractors, is legally liable. littleBits and its suppliers and subcontractors will not be liable for any claims by other Persons against Customer for losses or damages (other than those under the immediately preceding sentence) or for special, incidental, or consequential damages (including lost profits or savings), even if they are informed of their possibility. Customer acknowledges that the charges stated in this Agreement reflect the allocation of risk under this Agreement and that littleBits would not have entered into this Agreement without these limits on its liability.
- Amendments and Waivers. No amendment to this Agreement will be effective unless it is in writing and signed by both parties. No waiver of satisfaction of a condition or noncompliance with an obligation under this Agreement will be effective unless it is in writing and signed by the party granting the waiver, and no such waiver will constitute a waiver of satisfaction of any other condition or noncompliance with any other obligation.
- If any portion of this Agreement is held to be invalid or unenforceable, that portion is to be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions will remain in full force and effect.
- Governing Law; Actions. The laws of the State of New York consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction, govern all adversarial proceedings arising out of this Agreement or the subject matter of this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply. If either party brings against the other party any proceeding arising out of this Agreement that is permitted under this Agreement to be brought in a court (i.e., any proceeding other than a proceeding that must be resolved by arbitration under section 18), that party may bring that proceeding only in the United States District Court for the Southern District of New York or in any state court of New York sitting in New York County, and each party hereby submits to the exclusive jurisdiction of those courts for purposes of any such proceeding. Each party hereby waives any claim that any proceeding brought in accordance with this section has been brought in an inconvenient forum or that the venue of that proceeding is improper.
Dispute Resolution. Please read the following arbitration agreement in this section 18(“Arbitration Agreement”) carefully. It requires Customer to arbitrate disputes with littleBits and limits the manner in which Customer can seek relief from littleBits.
- Applicability of Arbitration Agreement. As the exclusive means of initiating adversarial proceedings to resolve any dispute arising out of this Agreement or the subject matter of this Agreement, a party may demand that any such dispute be resolved by arbitration administered by JAMS, an established alternative dispute resolution provider, rather than in court, and each party hereby consents to any such dispute being so resolved, except that (1) Customer may assert claims in small claims court if Customer’s claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) Customer or littleBits may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). If Customer agrees to arbitration with littleBits, Customer is agreeing in advance that Customer shall not participate in or seek to recover monetary or other relief in any lawsuit filed against littleBits alleging class, collective, and/or representative claims on Customer’s behalf. Instead, by agreeing to arbitration, Customer shall bring Customer’s claims against littleBits in an individual arbitration proceeding only. If successful on those claims, Customer could be awarded money or other relief by an arbitrator. Customer acknowledges that Customer has been advised that Customer may consult with an attorney in deciding whether to accept this Agreement, including this Arbitration Agreement.
Arbitration Rules and Forum.
- The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, Customer must send a letter requesting arbitration and describing Customer’s claim to littleBits (doing business as littleBits Electronics Inc.), 4775 Walnut Street, Suite 100 Boulder, CO 80301. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider.
- Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, will be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures, available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims will be subject to JAMS’ most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’ rules are also available at jamsadr.com or by calling JAMS at 800-352-5267. For more information on JAMS, its rules and procedures, and how to file an arbitration claim, you may call JAMS at 800-352-5267 or visit the JAMS website at http://www.jamsadr.com. If JAMS is not available to arbitrate, the parties shall select an alternative arbitral forum.
- If Customer is a Consumer, the following provisions apply:
- If the arbitrator finds that Customer cannot afford to pay JAMS’ filing, administrative, hearing, and/or other fees and cannot obtain a waiver from JAMS, littleBits shall pay those fees for Customer.
- littleBits shall reimburse all such JAMS’s filing, administrative, hearing, and/or other fees for claims totaling less than $10,000, and shall not seek reimbursement of its attorneys’ fees and arbitration expenses, unless the arbitrator determines the claims are frivolous.
- If Customer resides in the United States of America, Customer may choose to have the arbitration conducted by telephone, based on written submissions, or in person at a location within 100 miles of Customer’s residence.
- If Customer is (1) not a Consumer or (2) a Consumer that resides outside of the United States of America, the arbitration will be conducted in New York City, New York, USA.
- Judgment on any award rendered in any arbitration may be entered in any court having jurisdiction. The arbitration will be conducted in English.
- Authority of Arbitrator. The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of Customer and littleBits. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The parties shall cause the arbitrator to issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon Customer and littleBits.
- Waiver of Jury Trial. Each party hereby waives its right to a trial by jury in any proceedings arising out of this Agreement. The parties hereby elect that all claims and disputes between the parties be resolved by arbitration under this Arbitration Agreement, except as otherwise provided in section 1. An arbitrator may award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- Waiver of Class or Consolidated Actions. All claims between the parties related to this Agreement will be arbitrated individually, and Customer shall not consolidate or seek class treatment for any claim unless previously agreed to in writing by littleBits. If this section is deemed invalid or unenforceable neither Customer nor littleBits will be entitled to arbitration and instead claims and disputes will be resolved in a court as stated in section 17.
- 30-Day Right to Opt Out. If Customer is a Consumer, Customer may opt out of the provisions of this Arbitration Agreement by sending, within 30 days after first becoming subject to this Arbitration Agreement, written notice of Customer’s decision to opt out to the following address: 4775 Walnut Street, Suite 100 Boulder, CO 80301, Attention: General Counsel, with a copy to firstname.lastname@example.org. Customer’s notice must include Customer’s name and address, Customer’s littleBits username (if any), the email address Customer used to set up Customer’s littleBits account (if Customer has one), and an unequivocal statement that Customer wishes to opt out of this Arbitration Agreement. If Customer opts out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to Customer. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that Customer may currently have, or may enter into in the future, with littleBits.
- Survival of Arbitration Agreement. This Arbitration Agreement will survive the termination of Customer’s relationship with littleBits.
- No Third Party Beneficiaries. There are no third party beneficiaries of this Agreement, except as otherwise provided in section 12 (Intellectual Property) and section 14 (Limit of Liability).