These terms are drafted in English. If there is a conflict between a translated version and the English version of these Terms of Sale then, to the extent permitted under applicable law, the English version shall prevail.
We are Chiaro USA, Inc. (“we/our/us”), a Delaware corporation.
PLEASE NOTE: These Terms of Sale contain provisions that limit our liability to you and require you to resolve any dispute with us through final and binding arbitration on an individual basis and not as part of a class or representative action.
You can contact us by telephoning our customer service team at 929 239-3212 or by writing to us by email at email@example.com. If we have to contact you, we will do so by telephone or by writing to you at the email address or postal address you provided to us in your order.
1. Understanding these Terms of Sale
1.1 Why you should read these Terms of Sale. These Terms of Sale tell you who we are, how we will provide Products to you, how you and we may change or cancel the contract or order, what to do if there is a problem and other important information. If there is something within these Terms of Sale which you don’t understand, please contact us for further information.
1.2 Defined terms. When certain words and phrases are used in these Terms of Sale, they have specific meanings (these are known as ‘defined terms’). These defined terms start with capital letters even if they are not at the beginning of a sentence.
1.3 Headings and other information. We have used headings to help you understand these Terms of Sale and to easily locate information. These Terms of Sale are only available in the English language. We will not file copies of the contracts between us and you relating to our supply of the Products.
1.4 Entire Agreement. These Terms of Sale, together with the Terms and Conditions, constitute the entire agreement between us in relation to your orders for the Products. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of us which is not set out in these Terms of Sale or the Terms and Conditions and that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms of Sale.
2. Your orders for Products
2.1 How we will accept your order request.Our acceptance of your order request will take place when we send an email confirming our acceptance of your order request to the email address you have provided to us, at which point a contract will come into existence between you and us and your order request becomes an order.
2.2 If we cannot accept your order request.If we are unable to accept your order request, we will inform you in writing and will not charge you for the Product. We may reject an order request for several reasons including but not limited to if the Product is unavailable, because of unexpected limits on our resources which we could not reasonably plan for, because we have identified an error in the price or description of the Product, or because we are unable to meet a delivery deadline you have specified.
2.3 Your order number. We will assign an order number to your order and tell you what it is when we accept your order. It will help us if you can tell us the order number whenever you contact us about your order.
2.4 Products and Product packaging may vary slightly from pictures. The images of the Products and Product packaging displayed on our Platforms are for illustrative purposes only. We make every effort to display the color, shape and size of Products and Product packaging accurately but we cannot guarantee that this will be reflected on the display of the device through which you are browsing. As such, your Product or Product packaging may vary to that shown.
2.5 If you are ordering Elvie Trainer in the United States, you accept and acknowledge that you have received a copy of the Instruction Manual, also available at https://www.elvie.com/en-us/languages, which provides important safety information, and you understand that the Trainer is intended and labeled for therapeutic use in the treatment of sexual dysfunction or as an adjunct to Kegel's exercise (tightening of the muscles of the pelvic floor to increase muscle tone).
2.6 If you are ordering Elvie Pump in the United States, you accept and acknowledge that you have received a copy of the Instruction Manual, also available at https://www.elvie.com/en-us/languages, which provides important safety information, and you understand that the Elvie Pump is intended and labeled for use by a single user who is a lactating woman to express and collect milk from her breasts.
2.7 If you are ordering Elvie Stride in the United States, you accept and acknowledge that you have received a copy of the Instructions Manual, also available at https://www.elvie.com/en-us/languages, which provides important safety information, and you understand that the Elvie Stride is intended and labeled for use by a single user who is a lactating woman to express and collect milk from her breasts.
2.8 Despite any uses of the terms "sell," "sale," "resell," "resale," "purchase," "price" and the like in these Terms of Sale, we will remain the sole and exclusive owner of all intellectual property rights in and to each and any related specifications, instructions, documentation or other materials, including, but not limited to, all related copyrights, patents, trademarks and other intellectual property rights, subject only to the limited license granted to you for your use of the Product. You do not and will not have or acquire any ownership of these intellectual property rights in or to the Products.
3. Your rights to make changes
If you wish to make a change prior to shipment of your order, please contact us at firstname.lastname@example.org. We will let you know if the change is possible. If the change is possible, the price of the Product, the timing of supply and other terms may also change. We will ask you to confirm whether you wish to go ahead with the change. If we cannot make the change or the consequences of making the change are unacceptable to you, you may want to cancel your order.
4. Our rights to make changes
4.1 Minor changes to the Products. We may change the Products:
(a) to reflect changes in applicable laws and regulatory requirements, including but not limited to compliance with the EU General Data Protection Regulation and any other applicable privacy and data protection laws; and
(b) to implement minor technical adjustments and improvements, for example to improve the functionality of our Products. These changes may affect your use of the Product, but we will use commercially reasonable efforts to tell you about any effect on your use of the Product in advance.
4.2 Significant changes to the Products and these Terms of Sale. As stated in the description of the Products on our Platforms, we may make changes to the Product, but if we do so we will notify you and you may then contact us to cancel the order before the changes take effect and receive a refund for any Products paid for but not received.
4.3 Product recall.
(a) The Elvie Trainer is registered as a medical device in the USA and other territories. It is registered in the USA as FDA Class II with a 510(k) medical device exemption and in the EU as a MDD Class I product.
(b) The Elvie Pump is registered as a medical device in the USA as FDA Class II.
(c) The Elvie Stride is registered as a medical device in the USA as FDA Class II.
As such, we are under an obligation to maintain procedures for identifying and tracing each unit, lot or batch of the Elvie Trainer, Elvie Pump, and Elvie Stride, and, where appropriate, components of the product. We are also under an obligation to establish and maintain procedures to control units of the Elvie Trainer, Elvie Pump and Elvie Stride that do not conform to specified requirements and may recall non-conforming units at any time where required by law or in our discretion.
5. Providing the Products
5.1 Delivery costs. The costs of delivery will be displayed to you on our Platforms prior to you placing an order request for a Product through our Platforms.
5.2 When we will provide the Products. If we accept your order request, we will provide you with an estimated time frame within which the Products will be delivered to you. Unless we agree a different time frame with you in which to make delivery, we agree to provide the Products to you within 30 days after the day on which we send you notice of acceptance of your order.
5.3 We are not responsible for delays outside our control. If our supply of the Products is delayed by an event outside our control, then we will contact you as soon as possible to let you know and we will take steps to minimize the effect of the delay. Provided we do this, we will not be liable for delays caused by the event, but if there is a risk of substantial delay you may contact us to cancel the order and receive a refund for any Products you have paid for but not received.
5.4 If you are not at home when the Product is delivered. If no one is available at your address to take delivery and the Products cannot be posted through your letterbox, our delivery partner will follow the standard procedure it applies in the event that a Product cannot be delivered.
5.5 If you do not re-arrange delivery. If, despite our (or our delivery partner’s) reasonable efforts, we are unable to contact you or re-arrange delivery or collection, we may cancel the order.
5.6 Your legal rights if we deliver Products late. You have legal rights if we deliver any Products late. If we miss the estimated delivery timeframe agreed for any Products, then you may treat the contract as at an end straight away if any of the following apply:
(a) we have refused to deliver the Products to you;
(b) delivery within the estimated delivery timeframe was essential (taking into account all the relevant circumstances), and we agreed to deliver the Product to you within that estimated delivery timeframe; or
(c) you told us before we accepted your order that delivery within the estimated delivery timeframe as essential and we agreed to deliver the Product to you within that estimated delivery timeframe
If you do choose to cancel the order for late delivery under paragraph 5.6 (a) – (c) you can do so in relation to Products that have or have not been delivered to you. If Products have been delivered to you, you must ensure that these Products are returned to us. In the event that paragraph 5.6 (a) – (c) applies, you may choose to rearrange delivery instead of cancelling the order. To rearrange delivery please contact us via email at email@example.com.
5.7 When you become responsible for Products.A Product which is a good will be your responsibility from the time we deliver the Product to the address provided to us. You will own a Product which is a good once we have received payment for that Product in full.
5.9 Reasons we may delay supplying Products to you.We may have to delay supplying a Product to you if:
(a) you fail to make payment to us for the Product;
(b) we suspect any order or transaction to be fraudulent or suspicious;
(c) we choose to deal with technical problems or make minor technical changes to the Products; and
(d) we choose to update the Product to reflect changes in relevant laws and regulatory requirements.
We will contact you in advance to tell you we will be delaying supply of the Product, unless the problem is urgent or an emergency. If we have to delay supplying you with the Product for longer than 30 days, you may contact us to cancel the order for a Product, and we will refund any sums you have paid in advance for the Product.
6. Your rights to cancel an order or terminate these Terms of Sale
6.1 You may cancel an order or terminate these Terms of Sale with us for any of the following reasons:
(a) the Product is defective or not as described (see paragraph 6.2); or
(b) we have done something or have told you we are going to do something in material breach of these Terms of Sale (see paragraph 6.3).
6.2 If the Product is defective or not as described. We may offer an extended warranty period in relation to some of our Products. Further information about the applicable warranty period or the option to repair or replace in relation to each Product is displayed on our Platforms. If any agreement is silent as to an extended warranty period, your legal statutory rights in relation to defective or not as described goods will remain unaffected provided that the Product in question is returned to us. We will pay the cost of postage. Please contact firstname.lastname@example.org for a return label. If you want to return a Product because it is not as described or you change your mind within 30 days of you receiving the Product, please note that our single-user products may only be returned for a refund provided it is new, unopened, unused, and in its original packaging with the manufacturer’s factory seal still intact.
OUR RESPONSIBILITY FOR DEFECTIVE PRODUCTS IS LIMITED TO REPLACEMENT OR REFUND.
6.3 If we have done something, or have told you we are going to do something, in material breach of these Terms of Sale.Except as set forth in these Terms of Sale, all orders are final, non-cancelable, and non-refundable. You may be entitled to cancel the order immediately, and we may have to refund you in full for any Products which have not been provided if we have done or are going to do any of the following:
(a) we have told you about an upcoming significant change to the Product or these Terms of Sale which you do not agree to;
(b) we have told you about an error in the price of the Product you have ordered and you do not wish to proceed;
(c) there is a risk that supply of the Product may be significantly delayed because of events outside our control;
(d) we have suspended or delayed supply of the Product for technical reasons, or notify you we are going to suspend supply for technical reasons, in each case for a period of more than 30 days; or
(e) you have a legal right to terminate these Terms of Sale and cancel an order because we materially breached the contract relating to the supply of Products to you.
6.4 For information relating to any warranty claim, please refer to the legal and warranty information on elvie.com/support.
7. How to terminate these Terms of Sale with us
7.1 Tell us you want to terminate these Terms of Sale. To terminate these Terms of Sale with us, please let us know by contacting us via:
(a) Phone or email. Call customer services on 929 239-3212 or email us at email@example.com. Please provide your name, home address, details of the order and, where available, your phone number and email address.
(b) Online. Complete the form on our Platforms.
7.2 When we will pay the costs of return of Products. We will pay the costs of return:
(a) if the Products are faulty or not as described; or
(b) if you are terminating these Terms of Sale because we have told you of an upcoming change to the Product or these Terms of Sale, an error in pricing or description, a delay in delivery due to events outside our control or because you otherwise have a legal right to do so.
In all other circumstances you must pay the costs of return. In those circumstances, if we initially pay the cost of return, we may deduct that cost from any amount to be refunded to you.
7.3 How we will refund you. We will refund you the price you paid for the Products including delivery costs, by the method you used for payment. However, we may make deductions from the price, as described below.
7.4 We may be entitled to make deductions to your refund, if, for instance, you have handled the Product(s) in a way which damages them or renders them unsaleable. Further, the maximum refund for delivery costs will be the costs of delivery by the least expensive delivery method we offer.
7.5 When your refund will be made. We will make any refunds due to you as soon as possible.
8. Our rights to cancel an order or terminate these Terms of Sale
8.1 We may cancel an order or terminate these Terms of Sale if you violate them. We may also cancel an order or terminate these Terms of Sale for a Product at any time by writing to you, if:
(a) you do not make any payment to us when it is due;
(b) you do not, within a reasonable time of us asking for it, provide us with information that is necessary for us to provide the Products, for example, your delivery address; or
(c) you do not, within a reasonable time, allow our delivery partner to deliver the Products to you.
9. Price and payment
9.1 Where to find the price for the Product. The price of the Product will be the price indicated on the order page on our Platform when you place your order. Prices are subject to change without notice, and the price charged for a Product will be the price in effect at the time the order is placed.
9.2 Changes to the price. We take all reasonable care to ensure that the price of the Product advised to you is correct but it is always possible that, despite our best efforts, some of the Products we sell may be incorrectly priced. If the Product’s correct price at your order date is higher than the price stated to you, we will contact you for your instruction before accepting the order request.
9.3 Posted prices do not include taxes that may apply or charges for shipping and handling. All such taxes and charges will be added to your order total. We will pass on changes in taxes under applicable law. If the rate of applicable tax changes between your order date and the date we supply the Product, we will adjust the applicable taxes that you pay, unless you have already paid for the Product in full before the change in the applicable tax takes effect.
9.4 When you must pay and how you must pay.All payments for Products through our Platforms are processed through Amazon Payments, Braintree, Klarna Bank AB and/or Klarna's subsidiary BillPay GmbH (for Swiss transactions only), third-party payment providers unconnected to our Platform. You must make payment for Products prior to us providing them to you, including all applicable taxes, if any. You represent and warrant that:
(a) you have the legal right to use any credit card(s) or other payment methods in connection with the purchase of any Products; and
(b) that the information you supply to us is true, correct and complete. You hereby agree that we are not responsible for any loss or damage arising from submission of false or inaccurate information.
10. Our responsibility for loss or damage suffered by you
10.1 EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS OF SALE OR OTHER WARRANTY DOCUMENTATION, THE PRODUCTS ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE PRODUCTS, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. WE DO NOT WARRANT THAT THE PRODUCTS WILL BE ACCURATE, MEET ANY SPECIFIC PURPOSE, OR BE FREE OF ERRORS.
10.2 Disclaimer of consequential damage. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO PARAGRAPH 10.4, WE SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, LOST PROFITS, LOSS OF GOODWILL OR ANY OTHER INTANGIBLE LOSS, LOSS OF DATA OR LOSS OF USE OF THE PRODUCTS INCURRED BY YOU IN CONNECTION WITH THE PRODUCTS OR YOUR USE THEREOF OR INABILITY TO USE THE PRODUCTS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, REGARDLESS OF THE NATURE OF THE CLAIM, EVEN IF FORESEEABLE OR IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
10.3 Cap on damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO PARAGRAPH 10.4, OUR AGGREGATE LIABILITY FOR ALL CLAIMS AND DAMAGES ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE PRODUCTS OR OTHERWISE UNDER THESE TERMS OF SALE TO YOU OR ANY THIRD PARTY, REGARDLESS OF THE NATURE OF THE CLAIM WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY YOU FOR THE PRODUCTS UNDER THESE TERMS OF SALE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM.
10.4 We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes, but may not be limited to, liability for death or personal injury caused by our gross negligence, fraud, or willful misconduct.
11.1 Generally. In the interest of resolving disputes between you and us
in the most expedient and cost-effective manner, and except as described in
paragraph 11.2, you and we agree that every dispute arising in connection with
these Terms of Sale will be resolved by binding arbitration.
Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms of Sale, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms of Sale.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS OF SALE, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
11.2 Exceptions. Despite
the provisions of paragraph 11.1, nothing in these Terms of Sale will be
deemed to waive, preclude, or otherwise limit the right of either party to:
(a) bring an individual action in small claims court;
(b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available;
(c) seek injunctive relief in a court of law in aid of arbitration; or
(d) file suit in a court of law to address an intellectual property infringement claim.
11.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this paragraph 11 within 30 days after the date that you agree to these Terms of Sale by sending a letter to Chiaro USA, Inc., Attention: Legal Department/Office Manager – Arbitration Opt-Out, 184 7th Ave, Unit #107, New York, NY 10011 that specifies: your full legal name, the email address associated with your account on our Platform or order, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once we receive your Opt-Out Notice, this paragraph 11 will be void and any action arising out of these Terms of Sale will be resolved as set forth in paragraph 12.6. The remaining provisions of these Terms of Sale will not be affected by your Opt-Out Notice.
11.4 Arbitrator. Any arbitration between you and us will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms of Sale. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting us by email at firstname.lastname@example.org. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
11.5 Notice of Arbitration;
Process. A party who intends to seek arbitration must first send a written
notice of the dispute to the other party by certified U.S. Mail or by Federal
Express (signature required) or, only if that other party has not provided a
current physical address, then by electronic mail (“Notice of Arbitration”). Our address for Notice is: Chiaro USA,
Inc., Legal Department /Office Manager, 184 7th Ave, Unit #107, New York, NY
10011. The Notice of Arbitration must: (a) describe the nature and basis
of the claim or dispute; and (b) set forth the specific relief sought (“Demand”).
The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or we may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or us must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by us in settlement of the dispute prior to the award, we will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000.
11.6 Fees. If you commence
arbitration in accordance with these Terms of Sale, we will reimburse you for
your payment of the filing fee, unless your claim is for more than US$10,000,
in which case the payment of any fees will be decided by the AAA Rules. Any
arbitration hearing will take place at a location to be agreed upon in New
York, NY but if the claim is for US $10,000 or less, you may choose whether the
arbitration will be conducted:
(a) solely on the basis of documents submitted to the arbitrator;
(b) through a non-appearance-based telephone hearing; or
(c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address.
If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse us for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules.
Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
11.7 No Class Actions. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
11.8 Modifications to this Arbitration Provision. If we make any future change to this arbitration provision, other than a change to our address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to our address for Notice of Arbitration, in which case your account with us will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
11.9 Enforceability. If paragraph 11.7 or the entirety of this paragraph 11 is found to be unenforceable, or if we receive an Opt-Out Notice from you, then the entirety of this paragraph 11 will be null and void and, in that case, the exclusive jurisdiction and venue described in paragraph 12.6 will govern any action arising out of or related to these Terms of Sale.
12. Other important terms
12.2 You need our consent to transfer your rights to someone else. You may only transfer your rights or your obligations under these Terms of Sale to another person or entity if we agree to this in writing.
12.3 Nobody else has any rights under this contract. This contract is between you and us. No other person shall have any rights to enforce any of its terms.
12.4 If a court finds part of this contract illegal, the rest will continue in force. Each of the paragraphs of these Terms of Sale operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
12.5 Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these Terms of Sale, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
12.6 Which laws apply to this contract and where you may bring legal proceedings. These Terms of Sale are governed by the laws of the State of New York, without regard to conflicts of law principles that may require the application of another jurisdictions’ law. Subject to paragraph 11, you and we both submit to the personal and exclusive jurisdiction of the state courts and federal courts located in New York NY for resolution of any lawsuit or court proceeding permitted under these Terms of Sale.