BIOBEAT, NOR ITS AFFILIATES AND EITHER OF THEIR OFFICERS
AND EMPLOYEES SHALL BE LIABLE FOR (A) ANY INCIDENTAL,
SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, COSTS,
LOSSES OR EXPENSES INCLUDING WITHOUT LIMITATION LOSS
OF PROFITS, DATA AND/OR GOODWILL ARISING OUT OF, OR
IN CONNECTION WITH, THE BIOBEAT SERVICES AND/OR THE
USER’S OR ANY THIRD PARTY’S RELIANCE UPON BIOBEAT
SERVICES; AND (B) DAMAGES, LOSSES AND/OR EXPENSES
(“
LOSSES
”) ARISING OUT OF, OR IN CONNECTION WITH, THE
BIOBEAT SERVICES AND/OR THE USER’S OR ANY THIRD PARTY’S
RELIANCE UPON BIOBEAT SERVICES, IN AN AMOUNT EXCEEDING,
FOR ALL CLAIMS IN THE AGGREGATE, THE TOTAL AMOUNT
THE USER HAS PAID FOR THE WATCH. THE AFOREMENTIONED
SHALL APPLY REGARDLESS OF WHETHER CLAIMS ARE BASED
UPON CONTRACT, TORT (INCLUDING WITHOUT LIMITATION
NEGLIGENCE, TO THE EXTENT PERMISSIBLE UNDER APPLICABLE
LAW) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT
BIOBEAT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH
DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS
FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE
EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE
ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN
BETWEEN BIOBEAT AND THE USER.
WITHOUT DEROGATING FROM THE ABOVE, BIOBEAT SHALL
HAVE NO LIABILITY WHATSOEVER FOR ANY INACCURACY,
PERFORMANCE FAILURES, UNAVAILABILITY AND/OR LOSSES
ARISING OUT OF ANY USE OF BIOBEAT DEVICES AND/OR
BIOBEAT'S SERVICES NOT IN ACCORDANCE WITH THESE TERMS
AND/OR THE DOCUMENTATION, OR IN CONNECTION WITH,
ANY EXTERNAL THIRD PARTY SERVICES UPON WHICH THE
BIOBEAT SERVICES RELY (INCLUDING WITHOUT LIMITATION
FALURES RELATED TO CELLULAR, INTERNET OR BLUETOOTH
CONNECTION OF THIRD PARTY DEVICES OR PROVIDERS) AND/
OR GENERALLY FROM CAUSES BEYOND BIOBEAT’S REASONABLE
CONTROL, INCLUDING, BUT NOT LIMITED TO, INTERNET FAILURE,
NETWORK OR COMPUTER EQUIPMENT FAILURES, ELECTRICAL
POWER FAILURES, OR ACTS OF PROVIDERS OF THIRD PARTY
SERVICES.
7. Indemnity
The User will indemnify and hold harmless Biobeat, its affiliates
and their respective officers and/or employees, from and against
any Losses (for clarification, the term Losses shall include without
limitation reasonable attorney fees) incurred due to any third
party suit, claim or procedure arising out of or connected with
(i) the User breach of these Terms, or (ii) the reliance by any third
party upon the Biobeat Stats, in a manner not explicitly allowed
under these Terms (an “
Indemnifiable Claim
”). Biobeat shall have
the right to assume control of the defense and/or settlement of
any Indemnifiable Claim, in which event the User will cooperate
with Biobeat in asserting any available defenses.
