“YOU” AND “YOUR” REFER TO THE PERSON ACCESSING OR USING THE SERVICES, OR IF YOU CREATE AN ACCOUNT ON BEHALF OF AN EMPLOYER, COMPANY, ORGANIZATION, OR OTHER ENTITY, THEN (I) ALL REFERENCES TO “YOU” HEREIN INCLUDES YOU AND THAT ENTITY, AND (II) YOU REPRESENT AND WARRANT THAT YOU ARE AN AUTHORIZED REPRESENTATIVE OF THE ENTITY WITH THE AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, AND THAT YOU AGREE TO THIS AGREEMENT ON THE ENTITY’S BEHALF.
Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.
In order to use the Subscription provided through the Services (the “Subscription Services”), you must subscribe and if applicable, pay the upfront subscription fees (“Subscription Fees”) and you must create an account (“Account”). You must provide accurate and complete information and keep your Account information updated. You shall not select or use as a username a name of another person with the intent to impersonate that person or use as a username a name subject to any rights of a person other than you without appropriate authorization. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You may never use another person’s account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services, breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates.
You represent and warrant that you are at least 13 years of age, provided that if you are under 18 years of age, your use of the Services is subject to requirements of parental consent, in which case your supervising parent or legal guardian is considered the user under this Agreement and is responsible for any and all activity. If you are under age 13, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. The right to access the Services is revoked where this Agreement or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation.
COSMO software, text, graphics, images, video, audio, data and other material are made available to you through the Services (collectively referred to as the “Content”). Subject to this Agreement and your Subscription, we grant to you a worldwide, non-exclusive, non-sublicensable and non-transferable license to (i) access and use (i.e., to download and display locally) the Content and the software and applications made available through the Services and (ii) use the COSMO software embedded within the COSMO Smartwatch (the “COSMO Smartwatch”), solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for other than purposes of using the Services is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right. The Content may be owned by us or may be provided through an arrangement we have with others, including other users of the Services, or our partners, sponsors, or affiliates. The Content is protected by copyright under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. Other than your rights in any User Content (as defined below), you have no rights in or to the Content, and you may not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us or the owner of the Content. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. If you violate any part of this Agreement, your permission to access and/or use the Content and Services automatically terminates and you must immediately destroy any copies you have made of the Content.
Various company, product, and service names displayed on the Services may be trademarks or service marks owned by others (the “Third-Party Trademarks”). Your use of the Services should not be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Third-Party Trademark displayed on this Services. The Third-Party Trademarks may not be used to disparage any applicable third-party, any of their products or services, or in any manner in which, in our reasonable judgment, may damage any goodwill in the Third-Party Trademarks.
The Services include access to links to, and content and data from, third-party websites (“External Services”). These links, content, and data are provided solely as a convenience to you and not as an endorsement by us of the content on such External Services. The content of such External Services is developed and provided by others. In addition, the Services permit access to content posted, stored, or displayed at the direction of users of the Services, for which we cannot accept any responsibility or liability.
The Services are for personal use only and may not be used in connection with any commercial endeavors except those that are specifically approved by COSMO. The following activities are expressly prohibited: (i) collecting usernames and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited email or other communications; (ii) any use of the Services, which in our sole judgment, degrades the reliability, speed, or operation of the Services or any underlying hardware or software thereof; (iii) use of web scraping, web harvesting, or web data extraction methods from COSMO even if the Account owner gives permission; and (iv) any use of the Services which is unlawful or in violation of this Agreement.
Unless otherwise prohibited by law, and without prejudice to COSMO’s other rights or remedies, COSMO shall have the right to immediately terminate (i) your Subscription if you breach any of the terms of this Agreement and (ii) subject to (i) of this paragraph, the Services, in our sole discretion at any time.
You must maintain an active Subscription to continue using the Subscription Services. This Agreement and your Subscription may be renewed for additional Subscription periods pursuant to the Subscription purchased. If you do not maintain an active Subscription, this Agreement and all licenses granted hereunder shall terminate.
If you have obtained a free Subscription, COSMO reserves the right at any time to modify or discontinue, temporarily or permanently, such free Subscription and your access to the Services with or without notice. Unless modified or discontinued by COSMO in its sole discretion, your free Subscription shall continue until you cancel or upgrade to a paid Subscription.
All Subscription Fees are non-refundable, even if you stop using the Subscription Services. The subscription will begin upon confirmed delivery of the COSMO Smartwatch, or ten (10) days after shipment of your smartwatch, whichever is soonest. In the case of a monthly Membership, you authorize COSMO to charge your credit card after the 1-month pre-paid period ends. You may cancel after six (6) months. In the case of six(6)-, twelve(12)- and eighteen(18)-month memberships, the initial non-refundable (subject to the terms found in our Warranty and Return Policy below) subscription fee to the Subscription Services covers the first six (6), twelve (12) or eighteen (18) months of your Subscription (“Initial Subscription Fee”), respectively. The Initial Subscription Fee also covers the cost of your COSMO Smartwatch, and you will retain ownership of your COSMO Smartwatch after you stop or cancel your Subscription Services and after payment of the Initial Subscription Fee.
If you cease to pay for the Subscription Services for a period of three (3) days or more, your Account will go into an inactive state. In this inactive state, you will be unable to utilize your COSMO Smartwatch. You will, however, still be able to access any historical data, that is, data which is uploaded prior to your Account entering into an inactive state. Upon appropriate payment, your Account will be reactivated, and you will be able to utilize the full functionality of the Subscription Services and your COSMO Smartwatch.
Upon cancellation or termination, all licenses granted to you hereunder shall terminate automatically, your right to use the Services shall cease and your User Content, as defined below, will no longer be available to you through the Services.
You shall receive the support and maintenance if any, as set forth in COSMO’s FAQs or as provided with your Subscription.
The Services may include functionality to permit the submission of your Content, whether manually at the direction of users of the Services or automatically in accordance with your Account settings (“User Content”) and the hosting, sharing, and/or publishing of such User Content. You represent that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. User Content includes, without limitation, any user profile information you submit and make publicly available, any information collected by the COSMO Smartwatch, including, without limitation, statistics and measurements, fitness and recovery scores generated through the use of the Services, and any information submitted by you to “tag” any activities recorded through the Services. You understand that COSMO does not guarantee any confidentiality with respect to User Content that you submit and make available to others.
In connection with User Content, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant us all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage us or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements or solicitations of business; or (v) impersonate another person. We do not endorse any User Content or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with any User Content. We do not permit copyright infringing activities and infringement of intellectual property rights in connection with the Services, and we will remove all Content and User Content if properly notified that such Content or User Content infringes on another’s intellectual property rights. We may remove any Content and User Content without prior notice. We may also terminate your access to the Services, if you are determined to be a repeat infringer. A repeat infringer is anyone who has been notified of infringing activity more than once and/or has had any User Content removed from the Services more than twice. We also reserve the right to decide whether Content or User Content is appropriate and complies with this Agreement for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornography, obscene or defamatory material, or excessive length. We may remove such User Content and/or terminate your access for uploading such material in violation of this Agreement at any time, without prior notice and at our sole discretion.
If you are a copyright owner or an agent thereof and believe that any User Content or other Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
(iv) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address;
(v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Our designated Copyright Agent to receive notifications of claimed infringement and other notices relating to User Content and/or violation of this Agreement (e.g., violations of criminal laws) is General Counsel, COSMO Technologies,
7918 El Cajon Blvd Ste N #415 La Mesa, CA 91942. Only DMCA notices and notices relating to complaints in connection with User Content or violations of this Agreement should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be addressed to the address in Section 15.
A part of COSMO’s Services to you is features that track fitness-related information via the COSMO Smartwatch. THE SERVICES AND ANY RESULTS OR CONTENT DISPLAYED VIA THE SERVICES DO NOT PROVIDE MEDICAL ADVICE AND ARE NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. THE SERVICES ARE NOT INTENDED TO TREAT OR PREVENT ANY MEDICAL CONDITION. ALL CONTENT AVAILABLE THROUGH THE SERVICES IS FOR GENERAL INFORMATIONAL PURPOSES ONLY. USE OF THE SERVICES DOES NOT CREATE ANY PHYSICIAN-PATIENT RELATIONSHIP. You should always consult a qualified and licensed medical professional prior to beginning or modifying any diet or exercise program.
You agree to pay the Subscription Fees as described more fully during the purchase and payment process. You also agree to pay the non-refundable Initial Activation Fee (as described above). Any payment terms presented to you in the process of obtaining your Subscription are deemed part of this Agreement.
You agree to defend, indemnify, and hold us harmless from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (i) your User Content, (ii) your breach of this Agreement, or (iii) your uploading of, access to, or use or misuse of the Content or the Services. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit or proceeding. We reserve the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
THE SERVICES AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. WE HEREBY DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, MERCHANTABILITY, NON INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
WE, OUR AFFILIATES, OUR PARTNERS, AND OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS, MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT (INCLUDING THE USER CONTENT) OR SERVICES, INCLUDING BUT NOT LIMITED TO ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS, OR RELIABILITY.
NEITHER WE NOR OUR AFFILIATES OR PARTNERS SHALL BE SUBJECT TO LIABILITY FOR TRUTH, ACCURACY, OR COMPLETENESS OF ANY INFORMATION CONVEYED TO USERS OF THE SERVICES OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. FURTHER, WE MAKE NO WARRANTY THAT THE SERVICES WILL BE AVAILABLE ERROR-FREE OR THAT THE SERVICES OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICES OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE SHALL NOT BE RESPONSIBLE FOR THOSE COSTS. YOU AGREE THAT YOUR USE THE SERVICES AND THE CONTENT AT YOUR OWN RISK.
IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, INCIDENTAL, AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE SERVICES AND THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, IN EXCESS OF ONE HUNDRED DOLLARS, EVEN IF A WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH STATES, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
The Services may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We will try to give you notice when we make a material change to the Services, but this is not always practical. Similarly, we reserve the right to remove any Content or User Content from the Services at any time, for any reason (including, but not limited to if someone alleges you contributed Content or User Content in violation of this Agreement), in our sole discretion, and without notice.
14.1 Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you but may be assigned by us without restriction. This Agreement will inure to the benefit of our successors and permitted assigns.
14.2 Governing Law; Venue. This Agreement is governed by the internal substantive laws of the State of California, without respect to its conflict of law provisions. You expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in the City of San Diego in the State of California.
14.3 Severability. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
14.4 Non-Waiver. Failure by us to act on or enforce any provision of this Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance.
14.6 Headings. The section headings are provided merely for convenience and shall not be given any legal import.
14.7 Survival. All sections of this Agreement that, by their nature, should survive termination will survive termination, including, without limitation, the sections entitled User Content, Indemnity, Disclaimer of Warranty and Limitation of Liability, and General.
Our Thirty (30) Day Return Policy
You may return your COSMO Smartwatch within thirty (30) days for a full refund of the Activation Fee of $30. In order to receive your refund, you must request a return within thirty (30) days of receipt of the COSMO Smartwatch.
Below are instructions on how to return your COSMO Smartwatch and receive your refund.
To request a return, you must contact Support at email@example.com, at which point a return shipping label will be provided to you. Once you have requested your return, you are eligible for a refund of the Initial Activation Fee, less return shipping costs, as long as the COSMO Smartwatch is received within thirty (30) days from the date you requested the return.
To cancel your Subscription within the thirty (30) days of receipt of the COSMO Smartwatch in order to receive your refund, you must return the COSMO Smartwatch in the manner described above. If you do not return the COSMO Smartwatch within that 30-day period, the refund will not be applied.
Once the 30-day period has passed, you may still return the COSMO Smartwatch, but you will not receive a refund for all or any portion of your Initial Subscription Fee. While you may still cancel your Subscription at any time, the cancellation of the Subscription after the 30-day period has passed will not go into effect until the end of the initial subscription period. You may discontinue your use of the Subscription and Services at any time.
Once a return is requested, COSMO will cancel the Account associated with the return. For the sake of clarity, you will not be able to use the Account associated with the COSMO Smartwatch that was returned.
Once a COSMO Smartwatch is returned, we reserve the right to refurbish the COSMO Smartwatch for sale or for the COSMO Smartwatch to be sold as a replacement.
COSMO warrants that your COSMO Smartwatch is free from defects in materials or workmanship for a period of six (6) months from the date of your first use of the COSMO Smartwatch, as described above (“Warranty Period”) (the “Limited Warranty”). If your COSMO Smartwatch is defective during the Warranty Period, COSMO will replace your COSMO Smartwatch, subject to the conditions below, at no additional charge. COSMO is not responsible to repair or replace your COSMO Smartwatch if you violate this Limited Warranty. This Limited Warranty is non-transferable. Any Limited Warranty replacement COSMO Smartwatch shall be warranted under the original Warranty Period for the remainder of that period or for thirty (30) days, whichever is longer, or for any period as required by applicable law.
To be eligible for the six (6) month warranty, you must:
– Have an active Subscription with no outstanding balance or any unpaid fees;
– Have a valid Payment Method on file should a restocking fee be charged.
– Be the original owner of the COSMO Smartwatch, meaning that the COSMO Smartwatch being replaced was the one originally paired with the Account associated with that COSMO Smartwatch.
This Limited Warranty does not cover:
– Lost COSMO SMARTWATCH(ES)
– Damage or failure through misuse or malfunction, normal wear and tear, improper or negligent use, improper or abnormal use, or any use contrary to instructions provided by COSMO
– Damage or failure due to accident, acts of God, unauthorized commercial use, abuse, neglect, theft, unusual atmospheric conditions
– Cosmetic damage
– Any unauthorized modification to the product
– Attempted repair by unauthorized persons or with any parts not originally intended for or compatible with the COSMO Smartwatch
– Any alteration of the factory model name and/or serial number
This Limited Warranty gives the purchaser specific legal rights, you may also have other rights which vary from state to state that may result in the change of this warranty.
Warranty Replacement Procedure
To request a warranty replacement, you must contact COSMO Support at firstname.lastname@example.org, at which point COSMO shall send you a replacement COSMO Smartwatch as well as a return shipping label for the defective COSMO Smartwatch.
If you do not return the defective COSMO Smartwatch within thirty (30) days of receiving the return shipping label, COSMO shall have the right to charge you a $100 restocking fee for the unreturned COSMO Smartwatch. COSMO reserves the right to charge you the $100 restocking fee if you do not return the COSMO Smartwatch as described above, you cancel your Subscription or remove your Payment Method.
THIS LIMITED WARRANTY IS THE EXCLUSIVE WARRANTY GIVEN BY COSMO AND SUPERSEDES ANY PRIOR, CONTRARY OR ADDITIONAL REPRESENTATIONS. COSMO SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND. ANY AND ALL EXPRESS OR IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE ARE DISCLAIMED EXCEPT TO THE EXTENT PROHIBITED BY LAW. IN SUCH EVENT, SUCH WARRANTY IS LIMITED IN DURATION TO THE LIMITED WARRANTY PERIOD SET FORTH ABOVE. THIS EXCLUSION APPLIES EVEN IF THIS WARRANTY FAILS OF ITS ESSENTIAL PURPOSES.
This Limited Warranty shall be governed by the laws of the State of California, USA, excluding the State’s conflicts of laws principles.
You may request to replace your COSMO Smartwatch that has fallen outside of the Limited Warranty (“Non-Warranty Replacement”) for a $120 restocking fee.
To be eligible for the Non-Warranty Replacement, you must:
– Have an active Subscription with no outstanding balance or any unpaid fees;
– Have a valid Payment Method on file to charge the restocking fee.
Payment of a one-time-fee to upgrade or replace your COSMO Smartwatch will not change the terms of your membership Subscription to the services.
If an upgraded or replacement COSMO Smartwatch is provided to you as part of a membership renewal offer then the new membership Subscription period will begin immediately upon purchase and remaining days in your current Subscription, if any, will be appended to your account.