Subscription Agreement
Last Updated March 7th, 2023
When subscribing to a product or service with Fragile Inc (the “Operator”), wherein prominent placement of this Subscription Agreement is displayed, or a link thereto, and either (i) payment or other consideration is provided, or (ii) an order form or document of similar nature is executed, you (the “Subscriber”, “You”) represent that you understand, accept, and agree to be bound to this Subscription Agreement (the “Agreement”). The Operator and Subscriber shall collectively be referred to as the Parties.
OPERATOR RESERVES THE RIGHT TO MODIFY THIS AGREEMENT AT ANY TIME. SUBSCRIBER IS RESPONSIBLE FOR REGULARLY REVIEWING THESE TERMS AND MODIFICATIONS THERETO. NOTIFICATION REQUIREMENTS, AND OPT-OUT PROCEDURES RELATED TO MODIFICATIONS TO THIS AGREEMENT, ARE DETAILED BELOW.
Prior to the execution of this Agreement, the Subscriber is presented with either an order form or a digital order summary page, containing information including (i) the physical products Subscriber will receive on a rental basis as part of this Agreement (the “Rental Devices”); (ii) any additional services Subscriber is entitled to receive (the “Added Services”); (iii) any additional consumable products Subscriber is entitled to receive (the “Added Consumables”); (iv) the monthly payment amount to be paid by Subscriber to Operator (the “Recurring Payment”); (v) any one-time fees (the “Setup Fee”); (vi) the minimum commitment period (the “Commitment Period”); (vii) the merchant or manufacturer Operator is engaged with to provide this offering (the “Merchant”); and (viiI) an end date of this Subscription for fixed-term subscription (the “End Date”), which, if not provided, shall continue in perpetuity. Collectively, items (i) through (vii) of this paragraph shall form this “Subscription” which shall be transacted in accordance with this Agreement. Collectively, items (i) through (iii) of this agreement shall form the “Operator’s Obligations” or the “Services.”
Operator may engage third parties, in whole or in part, to support the ordering or origination of this Subscription and fulfillment of Operator’s Obligations (“Operator’s Subcontractors”). Collectively, the Operator, the Merchant, Operator’s Subcontractors, as well as all current or former employees, contractors, and directors of Operator or Operator’s Subcontractors shall be collectively referred to as “Service Providers”.
In the event this Subscription is ordered by Subscriber through a medium other than the ones prescribed in the foregoing paragraph, such as electronic mail, telephonic communication, physically at an Service Provider location, or any other medium not explicitly described, Subscriber understands and agrees to allow the Service Provider to review the Subscription order details, and place this Subscription order, on Subscriber’s behalf. Subscriber shall be solely responsible validating any and all relevant Subscription order details prior to providing any verbal or written confirmation to place this Subscription order.
BY ACCEPTING THIS AGREEMENT, SUBSCRIBER ACKNOWLEDGES THAT ANY AND ALL FUTURE SUBSCRIPTION ORDERS PLACED BY SUBSCRIBER SHALL BE BOUND BY THE TERMS OUTLINED IN THIS AGREEMENT, INCLUDING ANY AND ALL MODIFICATIONS TO THIS AGREEMENT, OR ANY SUPERSEDING AGREEMENT.
1. Order Acceptance
Operator has the right to review this Subscription, prior to the fulfillment of any of Operator’s Obligations. Operator may, using Operator’s sole discretion to the extent permitted by law, reject this Subscription. Subscriber, nor any third party, shall have no right to appeal Operator’s determination, except as required under applicable law. Operator may collect initial payment for this Subscription prior to order acceptance. If either Operator rejects this subscription or Operator fails to affirmatively accept this subscription within fifteen (15) calendar days, then (i) Subscriber shall immediately return any and all items furnished to Subscriber pursuant to this Subscription; and (ii) Operator shall promptly return any and all funds to Subscriber. Upon completion of items (i) and (ii), this Subscription shall be considered null and void, and this Agreement shall stand terminated.
2. Duration & Termination
The term of the Subscription shall commence on the date Subscriber places this Subscription order (the “Commencement Date”), and continues in perpetuity until terminated (the “Termination Date”). Operator may, depending on the nature of the Subscription and services provided, in Operator’s sole discretion, provide an account credit to Subscriber if Subscriber is unable to receive any or all Services of this Subscription, due to order acceptance or provisioning related time delays.
2.1. Initiating Termination
Termination of this Subscription may be initiated through one of the following:
Automatic Termination. If this Subscription is a fixed-term subscription, and an End Date is provided, then termination shall be immediately initiated upon the End Date, or any modified End Date by which the Parties agreed.
Operator Termination. Operator may, at any time, with or without reason, provide written or verbal notice to Subscriber that Operator is terminating this Subscription, or language to similar effect, which shall initiate termination on the date provided by Operator, or immediately if no such date is specified.
Subscriber Termination. Subscriber may provide written or verbal notice to Operator that Subscriber is terminating this Subscription, or language to similar effect, which shall initiate termination on the date provided by Subscriber, or immediately if no such date is specified, so long as (i) this Subscription has had full force and effect for the Commitment Period; and (ii) Subscriber is not past due on any payments due to Operator.
2.2. Effect of Termination
When termination is initiated, Operator shall no longer be responsible for providing any services to Subscriber. Subscriber shall immediately return any and all Rental Devices which Operator provided to Subscriber as prescribed under this Agreement.
3. Rental Device Returns
In the event Subscriber is obligated to return a Rental Device, or Operator requests Subscriber to return a Rental Device, Subscriber shall return such Rental Device in accordance with Operator’s instructions, and take all necessary steps to complete such return within seven (7) calendar days (the “Return Deadline”). Operator shall be responsible for providing a method of return that is similar to that which the Subscriber used to receive the Rental Device. If no such method is available, Operator shall be responsible for providing a reasonable alternative method of return. If Subscriber is unable to complete their return using the methods provided by Operator, Subscriber shall be responsible for, and bear all financial burden and associated liability with, procuring their own reasonable methods and means to promptly and securely return the Rental Device.
Rental Devices must be returned in a materially similar condition to that which they were received, and returned in the original packaging, with all associated parts, accessories, dongles, cables, instruction manuals, and other components. Subscriber shall take all reasonable efforts to package, secure, and return Rental Devices in a way that prevents damage and theft. In the event that Subscriber no longer has the initial packaging the Rental Device was provided with, Operator may charge Subscriber a fee for replacement packaging and any shipping charges incurred by Operator to provision replacement packaging to Subscriber.
In the event that Subscriber (i) fails to meet the Return Deadline, irrespective of the underlying cause, except in cases where this failure was caused by Operator’s negligence; (ii) returns a Rental Device to Operator which is damaged or materially altered, either in form or function, from how it was provided to Subscriber; or (iii) at any point during this Subscription Operator has reasonable belief that Subscriber no longer has possession of a Rental Device, or a Rental Device was materially damaged, or substantially altered in form or function from how it was provided to Subscriber; then Operator may charge Subscriber a replacement fee up to the full retail value for the Rental Device, which Subscriber shall be immediately and fully liable for.
4. Rental Device Usage and Restrictions
The Subscriber shall have the sole responsibility for ensuring that all Device Rentals and Services provided under This Agreement are used appropriately and legally, and take all actions necessary to ensure such. The Subscriber agrees to read and comply with all Device Rental instruction manuals. In the event Subscriber does not receive an instruction manual with their Device Rental, they will immediately contact Operator and prevent use of the Device Rental until they have received and read an instruction manual. Furthermore, Subscriber agrees to read and abide by any Terms of Service, Usage Agreements, health and safety warnings, or other such agreements in connection with the Services provided to Subscriber.
SUBSCRIBER ACKNOWLEDGES THAT A FAILURE TO READ AND ABIDE BY ALL INSTRUCTIONS, WARNINGS, HAZARDS, MANUALS, AND OTHER SUCH MATERIALS IN CONNECTION WITH SERVICES PROVIDED UNDER THIS AGREEMENT MAY RESULT IN SERIOUS INJURY OR DEATH TO THEMSELVES OR OTHER PERSONS.
SUBSCRIBER ACKNOWLEDGES THAT RENTAL DEVICES PROVIDED MAY BE REFURBISHED DEVICES. SUBSCRIBER SHALL INSPECT DEVICES PRIOR TO USE FOR ANY DEFECTS OR DAMAGE, AND IF IDENTIFIED, REPORT SUCH TO OPERATOR AND IMMEDIATELY DISCONTINUE USE.
Subscriber agrees to take due care of all Rental Devices received in connection with this Agreement. Subscriber will not perform any material or permanent alterations of Rental Devices. Subscriber shall use Rental Devices in the manner which they are intended. Subscriber shall actively prevent any person from using a Rental Device if the Subscriber could reasonably conclude, with information known to the Subscriber, that such person may cause injury to themselves or others, or damage the Rental Device or any property.
Subscriber shall promptly report to Operator, in writing, within forty-eight (48) hours, (i) any injuries incurred by themselves or others in connection with the Services; (ii) any damage or material alterations to form or function to Rental Devices; or (iii) any damage to property caused in connection with the Services. If any of the foregoing occurred in connection with criminal conduct, or a Rental Device was stolen, Subscriber is responsible for making a police report in the jurisdiction such criminal conduct occurred in, within twenty-four (24) hours of such conduct, or if not practicable, then as soon as reasonably practicable.
5. Payment
On the Commencement Date, Subscriber shall pay Operator the Setup Fee and Recurring Payment. Subscriber shall pay Operator the Recurring Payment on each monthly anniversary of the Commencement Date.
Subscriber shall be responsible for paying Operator all amounts due to Operator under this agreement, immediately when such payments are due. When placing this Subscription, Subscriber shall designate a primary method of payment which Operator shall use to collect payment from Subscriber. Subscriber agrees to keep adequate funds available on such payment method for Operator at all times. Subscriber authorizes Operator to automatically collect authorized payments under this agreement from Subscriber by means including: (i) charging Subscriber’s credit or debit cards; and (ii) direct debiting Subscriber’s bank accounts. Subscriber provides express permission to Operator to charge Subscriber’s non-primary payment methods to collect payment under this Agreement, when Operator is unable to collect payment from the designated primary method. Notwithstanding the foregoing, Operator is not obligated to collect payment from any method other than Subscriber’s primary payment method. Subscriber will promptly notify Operator if Subscriber chooses to change their primary payment method, or if Subscriber is unable to meet their payment obligations.
Subscriber shall not provide any payment information to Operator which they do not have full legal authorization to. Subscriber shall be responsible for any fees or sales taxes in connection with this Subscription. In the event Operator fails to collect applicable fees or sales tax at the time of payment, Operator shall have one (1) year to charge Subscriber for any such amounts. In the event Subscriber is charged in excess to that permissible under this Agreement, Subscriber shall notify Operator in writing of any billing or payment discrepancies within sixty (60) days of the discrepant charge, otherwise Subscriber shall be considered to have accepted any such charges as being in accordance with this Agreement and no longer disputable.
If Operator is unable to collect funds owed to Operator from Subscribe, the Operator shall be entitled to charge Subscriber five-percent (5%) of the outstanding balance owed, or $20.00, whichever is greater, every thirty (30) days, until Subscriber has paid the entire balance owed. Operator may, at Operator’s sole discretion, waive these fees, provided Subscriber promptly returns all Rental Devices received as part of this Subscription.
If Subscriber initiates a payment reversal or chargeback of any kind on a charge that was validly made under this Agreement, Subscriber will be assessed a fifty-dollar ($50.00) reversal fee, irrespective of any determination made by a bank, credit card issuer, or payment processor on the validity of the charge. If the payment is reversed, and refunded to the Subscriber, the Subscriber shall continue to be liable under this Agreement for payment to Operator for such amount.
If Subscriber accrues an unpaid balance for more than sixty (60) calendar days, Operator may use all legal methods and remedies available to collect such unpaid balance including, but not limited to, civil litigation and selling such balance to third-party collection companies. Subscriber shall be liable for any and all collection costs incurred by Operator, Operator’s affiliates, or third parties involved in the collection of Subscriber’s unpaid balance, including attorneys fees, filing costs, and collection agency fees. Subscriber will, on the first of each month, be assessed an eight-percent (8%) monthly interest rate on any remaining unpaid balance and unpaid fees or interest assessed.
6. Refunds
Subscriber shall not be entitled to any payment refunds, except as permitted in Order Acceptance. Any full or partial refunds provided are provided at Operator’s sole and exclusive discretion.
7. Buy-Out and Rent-to-Own
This Subscription is not a rent-to-own program. At no point will Subscriber own the Rental Devices, or other Services, provided under this Subscription, even if Subscriber payments aggregate to more than the collective retail price for all Services.
If Subscriber seeks to purchase their Rental Device, and/or any other Services in connection with this Agreement, Operator may, but is not required to, extend Subscriber an option to purchase their Rental Device(s), and any additional Services which Operator chooses to include. Operator may provide a discount on such Rental Device(s) based on Operator’s estimated value of such items, and other commercial considerations. If Subscriber exercises any such option, then Operator shall be immediately relieved of any and all of Operator’s Obligations in connection with the sold Rental Device. Upon Subscriber’s full payment to exercise such option, as well as payment for any other unpaid balances due to Operator, Subscriber shall no longer be liable for any future Recurring Payments associated with the purchased Rental Device, and shall have the full rights, title, and responsibility to the Rental Device purchased. Operator makes no representations, and provides no warranties, associated with Rental Devices purchased by Subscriber pursuant to this paragraph. Subscriber shall be solely responsible for procuring all necessary licenses and materials necessary for the continued use and operation of Rental Devices purchased from Operator, including, but not limited to, software licenses and consumable materials.
8. Service Suspension
If Subscriber accrues any unpaid balance for more than fifteen (15) calendar days, or is in material breach of this Agreement, Operator may immediately suspend Services and take all actions necessary to effect such suspension, including, but not limited to: (i) using technological methods to reduce functionality or disable Rental Devices; and (ii) cease delivery of any current or future Added Services or Added Consumables. Subscriber shall not be entitled to any prorated refund, or delivery of regularly scheduled Services that Subscriber did not receive as a result of suspension. Operator may charge Subscriber any reasonable costs associated with effectuating, and reinstating, a service suspension, including labor time incurred by Operator.
9. Insurance
For each Rental Device, Subscribers must purchase insurance to the maximum extent statutorily required for all jurisdictions wherein Subscriber will possess such Rental Device. The Subscriber shall maintain all required insurance between the Commencement Date and Termination Date.
10. Limitation of Liability
OPERATOR AND SERVICE PROVIDERS SHALL NOT BE LIABLE FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST REVENUES OR LOST PROFITS, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSSES AND BASED ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH SERVICES. IF PERMITTED UNDER PREVAILING LAW, THE AGGREGATE AMOUNT OF DIRECT DAMAGES THAT OPERATOR WILL PAY YOU FOR CLAIMS UNDER THESE TERMS IS THE TOTAL FEES PAID TO OPERATOR BY YOU IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. This section shall survive any termination of this Agreement.
11. Ownership and Licenses
Operator’s and Service Provider trademarks and trade dress may not be used in any form without the prior written consent from such party. All trademarks, services marks, logos, designs and trade dress not owned by Operator that appear in connection with these Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Operator. You may not use content from these Services without Operator’s express prior permission or as otherwise permitted by law. You agree to protect the proprietary rights of Operator and all Service Providers and to comply with all reasonable written requests made by Operator or any Service Provider to protect their and others’ rights in the Site and materials and content made available on or through the Service.
You grant Operator a non-revocable, perpetual, non-exclusive, worldwide license to use and distribute, however Operator may see fit, any and all images, videos, correspondence, audio recordings, or other data and information which you provide to Operator or Service Provider in connection with this Subscription or the Services.
Operator grants you a limited term, non-exclusive, non-sublicensable, revocable, non-transferable license to access and use the Services, which includes use of Rental Devices. Upon the termination of this agreement, such license shall be immediately revoked. Operator and any applicable Service Provider may revoke any license granted hereunder if Operator or Service Provider determined that a breach of this Agreement, or any Service Provider terms of use or similar agreement is violated. Licenses granted hereunder are subject to each Service Provider’s terms of use. It is your responsibility to read and comply with all terms provided by Service Providers in connection with this Subscription.
12. Waiver and Release of Claims
THIS SECTION CONTAINS A LEGAL RELEASE OF YOUR RIGHTS, INCLUDING: ASSUMPTION OF RISK AND WAIVER AND RELEASE OF LIABILITY AGAINST OPERATOR AND SERVICE PROVIDERS. YOU ARE FREE TO DECLINE OUR SERVICES AND PRODUCTS IF YOU DO NOT WANT TO AGREE TO THE TERMS AS SET FORTH HEREIN.
You volunteer to use Services and Rental Devices in connection with this Agreement with full knowledge of all RISKS and agree to the ASSUMPTION OF RISK AND WAIVER AND RELEASE OF CLAIMS. It is Subscriber’s sole and exclusive responsibility to Services safely, and take all reasonable and preventative steps to ensure any usage of these Services by others is done safely and within the restrictions provided in this Agreement.
IN CONSIDERATION FOR USING THESE SERVICES, YOU, OR THE PERSON OR ENTITY ON BEHALF OF WHOM YOU ENTERED INTO THESE TERMS AGREE TO THE FOLLOWING:
12.1. ASSUMPTION OF ALL RISK. You acknowledge that (i) there are risks associated with the use of Services and Rental Devices (ii) the Rental Devices may be used by other people before being provided to You; and (iii) use of certain Rental Devices and associated Services may result in injury or illness including, but not limited to, BODILY INJURY, DISEASE, STRAINS, FRACTURES, PARTIAL OR TOTAL PARALYSIS, OTHER AILMENTS THAT COULD CAUSE SERIOUS DISABILITY, MENTAL OR PHYSICAL ANGUISH, OR DEATH. By using these Services, You, on behalf of yourself, your personal representatives, and your heirs, hereby EXPRESSLY AGREE TO ASSUME ALL RISKS AND ACCEPT ALL RESPONSIBILITY FOR ANY ACCIDENT, PERSONAL INJURY, PROPERTY DAMAGE, DEATH OR DISABILITY THAT YOU MAY SUFFER AS A RESULT OF USING THE SERVICES AND RENTAL DEVICES for any such injuries, losses, and/or damages.
12.2. WAIVER AND RELEASE OF CLAIM. You, on behalf of yourself, your personal representatives, and your heirs, hereby EXPRESSLY AGREE TO WAIVE AND RELEASE OPERATOR AND SERVICE PROVIDERS FROM ANY AND ALL CLAIMS (INCLUDING THOSE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY AND/OR ANY OTHER GROUNDS), INCLUDING WITHOUT LIMITATION CLAIMS FOR OR RELATING TO ANY ACCIDENT, PERSONAL INJURY, PROPERTY DAMAGE, DEATH OR DISABILITY THAT YOU MAY SUFFER AS A RESULT OF USING OUR SERVICES OR PRODUCTS. The WAIVER AND RELEASE includes any claims for injury or illness including, but not limited to, BODILY INJURY, DISEASE, STRAINS, FRACTURES, PARTIAL OR TOTAL PARALYSIS, OTHER AILMENTS THAT COULD CAUSE SERIOUS DISABILITY, MENTAL OR PHYSICAL ANGUISH, OR DEATH.
13. Indemnification
Subscriber shall defend Operator and Service Providers against any claims, actions, damages, penalties, fines, demands, losses, liabilities, costs and expenses, injuries or payments for injury to any person or property caused or claimed to be caused by Subscriber, or caused by any Services in connection with this Subscription, which is made or brought against Operator by a third party arising out of (i) Subscriber’s Use of the Services or Products (including the payment of fines and other fees in Section 5 above), (ii) Subscriber’s breach or violation of any of these Terms or any applicable law, or (iii) Subscriber’s violation of the rights of any third party. Operator reserves the right to assume the exclusive defense of any claims or lawsuits, and Subscriber agrees not to settle any of the foregoing without Operator’s prior written consent. The obligations in this Section shall survive any termination of this Agreement, remaining in full force and effect for five (5) years following the termination of this Agreement.
14. Warranties
By entering into this Agreement, Subscriber represents and warrants they (i) are at least eighteen (18) years of age; (ii) have the authority to enter into this Agreement; (iii) are not entering into this Agreement under any false presences or malicious intent; and (iv) have not provided any false or fictitious information to Operator or Operator’s affiliates, employees, contractors or agents.
SERVICES AND DEVICE RENTALS ARE PROVIDED “AS-IS.” OPERATOR AND SERVICE PROVIDERS MAKE NO EXPRESS OR IMPLIED WARRANTIES INCLUDING OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, REPRESENTATIONS, OR GUARANTEES REGARDING THE DESCRIPTION PROVIDED. THE ACCURACY OR COMPLETENESS OF PRODUCT INFORMATION IS NOT GUARANTEED AND IS SUBJECT TO CHANGE WITHOUT NOTICE. YOU ARE SOLELY RESPONSIBLE FOR EVALUATING AND SELECTING PRODUCTS AND DETERMINING WHETHER EACH PRODUCT IS FIT FOR A PARTICULAR PURPOSE AND SUITABLE FOR YOUR USE. PRODUCTS ARE NOT MANUFACTURED TO ANY INDIVIDUAL REQUIREMENTS OR SPECIFICATIONS. NO LICENSE UNDER ANY OF OPERATOR’S OR ANY SERVICE PROVIDER’S INTELLECTUAL PROPERTY RIGHTS IS GRANTED OR IMPLIED WITH THIS PRODUCT INFORMATION. YOUR SOLE REMEDY FOR A PRODUCT BEING MATERIALLY INACCURATELY DESCRIBED IS TO RETURN IT IN UNUSED CONDITION, COMPLETE AND UNDAMAGED, IN THE ORIGINAL PACKAGING, AND HAVE OPERATOR REPLACE THE PRODUCT. TO THE EXTENT PERMITTED BY LAW, OPERATOR EXCLUDES ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED.
15. Governing Law
This Agreement, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement shall be governed by the laws of the State of California, including its statutes of limitations but excluding its conflict of laws provisions. You agree that the United Nations Convention on Contracts for the International Sale of Goods (1980) and Uniform Computer Information Transactions Act (UCITA) are specifically excluded from application to this Agreement.
16. Miscellaneous
Operator may assign Operator’s rights and obligations under this Agreement to third parties, but Subscriber may not assign any of Subscriber’s rights or obligations under this Agreement without Operator’s prior written consent. A failure to exercise or enforce any right or provision that Operator or any Service Provider is entitled to under this Agreement shall not constitute a waiver of such right or provision. If any provision under this Agreement shall be deemed invalid, void, or for any reason unenforceable, that provision shall be deemed severable and shall not affect the validity and enforceability of any remaining provisions.
17. Modification to This Agreement
Operator may modify this Agreement at any time by posting a revised version at
https://www.tryfragile.com/legal/subscription-agreement. The modifications will (i) be effective when posted for all new Subscriptions, or (ii) effective immediately within thirty (30) days. If this Subscription is active when Operator modifies this Agreement, Subscriber may provide a written Objection to Operator, so long as such modification is not yet effective. Upon such notification, Subscriber shall not be bound to the modified Agreement, and the previously effective agreement shall remain in full force and effect.
