BEMER USA, LLC, Terms & Conditions (USA)

    Last Update: April 1, 2021

    Welcome to BEMER, and thank you for your purchase.

    These Terms & Conditions (“Terms”) govern your access and use of the website located at www.bemergroup.com (http://www.bemergroup.com/) ("Site"), and purchase of any products, services, software, tools, applications, features or functionality offered or made available on or through the Site (collectively, the “Products”).

    Please read these Terms carefully before using the Site and making any purchase from the Site. The Privacy Policy is incorporated by reference into these Terms, and these Terms and the Privacy Policy together are hereinafter referred to as this “Agreement.”

    If you are an Independent BEMER Distributor (“IBD”), you are also subject the IBD Agreement and the BEMER Policies and Procedures, which are incorporated by reference herein as if fully set forth herein. In the event of a conflict between the agreements, the following order of priority shall control: first this IBD Agreement with its Compensation Plan, then the Policies & Procedures, then the Returns & Warranty Policy, the Privacy Policy, and then the Terms and Conditions.

    YOUR USE OF THE SITE AND PURCHASE OF THE PRODUCTS CONSTITUTES YOUR ACCEPTANCE OF THE AGREEMENT, AS IT MAY BE AMENDED BY BEMER FROM TIME TO TIME. THE CURRENT VERSION OF THE AGREEMENT WILL BE MADE AVAILABLE TO YOU AT THE TIME OF PURCHASE. IF YOU DO NOT AGREE WITH ALL PROVISIONS THEREIN (INCLUDING, FOR IBDs, THE IBD AGREEMENT AND ALL DOCUMENTS INCORPORATED BY REFERENCE THEREIN), DO NOT PURCHASE ANY PRODUCT.

    As used in these Terms, "we," "our," "us" and “BEMER" refers to BEMER USA, LLC, including its parent company and any BEMER subsidiaries and affiliates.

    1. Registration
      1. When you set up an account with BEMER and register to place orders through the Site, you agree to (a) provide accurate, current and complete information about yourself, and (b) maintain and update your information (including your email address) to keep it accurate, current and complete. If any information changes, please contact BEMER to update your account.
      2. BEMER may refuse to grant you a username for any reason in its sole discretion, including in the event that we determine that such username impersonates someone else, is illegal, vulgar, or otherwise offensive, or is protected by trademark or other proprietary rights law, or otherwise may cause confusion. You acknowledge that BEMER reserves the right to terminate your access to and use of the Site if BEMER determines or suspects that you have violated any of these Terms or engaged in any activity that is fraudulent, illegal, unethical, or otherwise poses a risk to BEMER and/or its IBDs. Our use and disclosure of any such information that you provide is governed by our Privacy Policy.
      3. You are solely responsible for maintaining the confidentiality of your username and password and agree not to transfer or resell your use of or access to the Site to any third party. AS BETWEEN BEMER AND YOU, YOU ARE ALSO SOLELY RESPONSIBLE FOR ANY AND ALL ACTIVITIES (INCLUDING PURCHASES) THAT ARE CONDUCTED THROUGH YOUR ACCOUNT, AND BEMER DISCLAIMS ANY LIABILITY DERIVED THEREFROM.You acknowledge that payments made on your behalf from third parties may be accepted by the Site. If you suspect any unauthorized use of your password or account, you shall contact BEMER as soon as reasonably practicable.
      4. The following practices are strictly prohibited:
        1. the registration of individuals or entities without their knowledge or that do not exist;
        2. the fraudulent registration of an individual or entity on the Site as either an IBD or customer;
        3. purchasing BEMER products on behalf of another IBD or customer, or under another IBD’s or customer’s ID number;
        4. purchasing excessive amounts of products that cannot reasonably be used or resold in a month; and/or
        5. any other mechanism or artifice to qualify for rank advancement, incentives, prizes or commissions, that is not driven by bona fide product purchases by end consumers.
      5. You shall not use another person's credit card or debit card to make a product purchase or to without the other person’s written permission. Such documentation must be kept by you for seven (7) years and must be submitted to BEMER upon request.
    2. Pricing and Payment
      1. Prices listed on the Site are in the currency as stated on the Site and do not include any shipping and handling charges or applicable taxes. Prices and any Products may change without notice.
      2. Orders may be placed on the Site (including any IBD web page) only. Manual orders may be placed only upon BEMER's written permission, which shall be provided only in specific circumstances and in BEMER's sole discretion.
      3. Orders must be paid by one of the payment methods indicated on the Site, which includes credit card, debit card or the available financing options. We do not accept any payment method not indicated on the Site.
      4. You agree to pay all applicable taxes that arise in any jurisdiction, including without limitation, value added, consumption, sales or other taxes, fees, duties, or charges imposed on the sale of the Products (“Taxes”).
      5. You must provide current, complete and accurate billing and payment information. In certain instances, the issuer of your credit card or your payment provider may charge you a transaction fee or related charges, which you will be responsible to pay.
      6. Verification of information applicable to a purchase may be required prior to our acceptance of any order. If an order is declined, it is your responsibility to provide an alternative form of credit or debit card for the purchase. Declined orders must be completely re-entered as a new order.
    3. Financing
      1. Subject to credit approval, BEMER offers a financing option through a selected third party service provider. A purchaser must pre-qualify and if they do, they will get their individual APR and available payment terms.
      2. Products paid for via financing must only be used for personal, family or household (including animal) use. Financed products must not be used for business purposes.
      3. Orders paid for via the financing option must be placed by the purchaser themselves. At no time can you fill out the application for financing on behalf of another person, including a spouse.
      4. For regulatory reasons, the financing option is not available for applicants who reside in West Virginia, Iowa and Idaho.
      5. To return a financed order under the 30-day money back guarantee, contact BEMER. A 10% restocking fee will need to be obtained via credit card in order to initiate the return process. No returns will be authorized past 30 days or receipt of the 10% restocking fee.
    4. Delivery
      1. The delivery date specified in the Order Confirmation is an estimate, and the ultimate responsibility lies with our carrier. The place of delivery is as stated in the order confirmation.
      2. BEMER will pack the Products in accordance with its standard practices.
      3. For practical reasons, BEMER reserves the right to make partial shipments (at no additional cost to you), and the portion of any order that is partially shipped may be charged at the time of shipment.
      4. If the shipping address changes in financed transactions and the order has not shipped yet, BEMER will cancel the order and terminate the financing. If the order has already shipped and is in transit, the customer will be required to re-route the order back to the BEMER office, and Bemer will cancel the order and terminate the financing upon receipt of the product. Upon order and financing cancellation, the customer can place the order again on the BEMER Webshop, using the correct information.
      5. Title and risk of loss for any purchases will pass to you upon BEMER's delivery of the Products to the carrier.
    5. No Medical Advice
      1. Nothing provided by BEMER in connection with the products or services shall be construed to constitute professional medical advice, diagnoses, or treatment, and the IBD should not rely on them as such. The licensed health care provider should always be consulted if the user has a medical emergency, medical concerns, pre-existing injuries or condition. Your decision to rely on any information you may obtain from BEMER in connection with your use of the product is at your sole discretion and risk. BEMER does not promise or guarantee any particular results, regardless of whether the user follows all the recommendations provided by BEMER.
      2. You assume all risk and liability for condition of the product, or loss or damage resulting from the handling, use or application of the product, upon delivery hereunder, subject to any warranties in place for the product.
    6. Product Registration
      1. Registration of the Product with BEMER occurs automatically when sales are charged and shipped by BEMER to a customer.
      2. In the event that a BEMER product is sold directly by an IBD to a customer, it is the responsibility of the IBD to issue the customer an invoice containing the serial number of the BEMER product sold and language advising the customer that it is their responsibility to register the product with BEMER to ensure product purchase confirmation and satisfaction of any return and/or warranty issues. It is the responsibility of the customer, thereupon, to register the product with BEMER.
    7. Returns & Warranty Policy
      1. Your use of the BEMER products is subject to BEMER’s applicable Return & Warranty Policy.
      2. BEMER’S limited product warranty does not apply to products purchased through an online platform such as eBay or Amazon.
    8. Third Party Access
      1. The Site may contain website links, functionalities as well as advertisements, promotions, products or services of third parties that are not owned or controlled by BEMER (collectively, “Third Party Content”). BEMER does not control or endorse such Third Party Content, and is not responsible or liable for the terms, conditions, privacy policies, actions, inactions, opinions, advice, statements, offers, warranties, representations, content or functionality of any such third party or its site. YOUR USE OF THIRD-PARTY WEBSITES AND RESOURCES IS AT YOUR OWN RISK. BEMER is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third party advertisers on the Site. You agree to indemnify and hold BEMER harmless in the event of any claim related to Third Party Content.
    9. Intellectual Property Rights
      1. By using the Site and Products, you acknowledge that, as between you and BEMER, BEMER owns all right, title and interest in any software, code, system, technology, content, product designs, logos, trademarks, text, editorial content, data, formatting, graphs, graphics, user interfaces, visual interfaces, photographs, artwork and computer code, HTML, “look and feel,” software layout, music, sounds, images, software, videos, designs, typefaces and other intellectual property used or embedded in the Product or the Site (the “BEMER IP”). You may not use, display, rent, lease, loan, transfer, assign, sell, copy, reproduce, distribute, download, reverse engineer, frame, scrape or modify any of the BEMER IP or to prepare a derivative work based on the BEMER IP. In connections with your use of the BEMER Products and Site, you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by BEMER from accessing the Site (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address).
      2. Provided that you are eligible for use of the Site and the Products, you are granted a limited, revocable, nonsublicensable, nontransferable and non-exclusive right to access and use the BEMER IP and the Site solely for your personal, non-commercial use (including to access any disclosures).Any other use of the BEMER IP is strictly prohibited and will terminate the license granted herein. Any rights not expressly granted herein are reserved by BEMER. Nothing in these Terms should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of BEMER’s logos or other trademarks (“Trademarks”) displayed on the Site or Products, without our prior written permission in each instance.
    10. Data Ownership and Privacy.
      1. BEMER collects certain personal information such as your name, phone number, e-mail address, shipping and billing address, credit card information and other information so we can fulfill your order. BEMER also collects information about your Site usage, device information, location information, and web navigational data to enable us to enhance your experience on the Site. In addition, BEMER also collects various personal information via the mobile application related to your use of the Product. For more information about BEMER’s privacy practices, please read our Privacy Policy.
      2. You shall have all rights, title or interest to any data, property or information collected by BEMER on behalf of you in connection with its performance under the Agreement, including without limitation any data transmitted from the Product to the mobile application and BEMER’s servers; provided, however, that nothing contained herein shall affect BEMER’s rights, title or interest to any data, property or information generated, compiled or analyzed by BEMER in connection with its performance under the Agreement, including without limitation any analyzes or reports of aggregated data.
    11. Representations & Warranties
      1. By accepting this Agreement, you hereby represent and warrant the following:
        1. I am at least 18 years old;
        2. I am permitted by applicable law to receive the product I am requesting for my personal purposes;
        3. I am the authorized party and (if applicable) signatory to the payment mechanism used to open and maintain my account and place this Product purchase;
        4. I have not falsely identified myself nor provided any false information to purchase the Products or gain access to the Site;
        5. My payment information is correct and complete, and I will pay any applicable shipping and handling charges and applicable taxes;
        6. I am not accessing and have not accessed the Site or purchased the Product to commit illegal acts or violate any provisions of this Agreement;
        7. I understand the product(s) purchased from BEMER are not intended for use in diagnosis, treatment, cure, or mitigation of any specific disease, and BEMER does not provide medical services or medical advice;
        8. I acknowledge that the IBD are independent contractors and not employees of BEMER, and are not authorized to bind BEMER in any legal agreement or contract;
        9. I will at all times during the term of this Agreement comply with the terms of this Agreement and any applicable domestic or international laws; AND
        10. I ACKNOWLEDGE THAT SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE BELOW MAY OR MAY NOT APPLY TO ME.
    12. Indemnification and Release
      1. You agree to release, defend, indemnify and hold harmless BEMER, its parent, subsidiaries and affiliates, and their respective officers, directors, employees, agents, attorneys, successors, and permitted assigns, from all loss, liabilities, damages, costs and expenses (including but not limited to reasonable attorneys’ fees, litigation costs and expenses) (collectively, the "Losses") incurred by us for any claims or actions for any kind or injury (including property damage or personal injury), whether a claim is based on breach of contract, tort, product liability, or breach of warranty, arising directly or indirectly out of or in connection with (a) this Agreement, including the representations and warranties made herein; (b) your use of the Products; or (c) your nonpayment of any Taxes, as defined above, irrespective of whether such Losses arise from a first-party claim between you and BEMER or any claim, demand, lawsuit or other dispute between BEMER and a third party.
      2. If you are an IBD, BEMER may elect to exercise its indemnification rights through withholding any compensation to you. This right of setoff shall not constitute BEMER's exclusive means of recovering or collecting funds due to BEMER pursuant to its right to indemnification.
      3. You agree to fully cooperate at your expense as reasonably required by BEMER. BEMER may, at its election, assume the defense and control of any matter for which it is indemnified hereunder. You shall not settle any matter involving BEMER without the consent of BEMER.
    13. Disclaimers
      1. Warranty Disclaimer: BEMER represents and warrants that it provides the Site and Products in a manner consistent with general industry standards reasonably applicable to the provision thereof. EXCEPT AS SET FORTH HEREIN, BEMER MAKES NO FURTHER WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SITE OR PRODUCTS, AND HEREBY DISCLAIMS ALL OTHER WARRANTIES (EXPRESS OR IMPLIED) INCLUDING, BUT NOT LIMITED TO THE IMPLIED INDEMNITIES AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. BEMER DOES NOT REPRESENT OR WARRANT THAT THE SITE OR PRODUCTS WILL MEET ANY OF YOUR EXPECTATIONS OR REQUIREMENTS OR THAT THE SITE OR PRODUCTS ARE PROVIDED SECURELY OR WITHOUT ERRORS. THE SITE AND PRODUCTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WE MAKE NO WARRANTIES THAT THE SITE AND PRODUCTS WILL BE TIMELY, ACCURATE OR AVAILABLE AT ALL TIMES WITHOUT INTERRUPTIONS. THE USE OF THE SITE AND PRODUCTS IS AT YOUR SOLE DISCRETION AND RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BEMER, ABOUT THE PRODUCTS WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
      2. BEMER is not responsible for the intentional or negligent acts or omissions of any health care provider or BEMER IBD who referred you to the BEMER product, or to whom BEMER may have referred you to.
      3. IBD web pages: If you are registering on the Site as an IBD at time of your purchase, we may provide you with access to and use of certain personalized pages on the Site and the corresponding web address (URL). However, we do not guarantee the availability of any particular web page or URL, and we reserve the right, at any time and in our sole discretion, to reclaim, suspend, terminate and/or transfer any such web page or URL as described in the IBD Agreement.
    14. Limitation of Liability
      1. To the extent permitted by applicable law, NEITHER BEMER NOR YOU SHALL BE LIABLE FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL , INCLUDING FOR ANY LOST PROFITS OR LOST DATA, WHETHER ARISING IN AN ACTION FOR BREACH OF CONTRACT, TORT OR ANY OTHER CAUSE OR THEORY OF LIABILITY.
      2. YOU AGREE AND ACKNOWLEDGE THAT THE TOTAL AMOUNT OF BEMER’S LIABILITY, IF ANY, FOR ANY AND ALL CLAIMS, CAUSES OF ACTION, LOSSES, DAMAGES, OR JUDGMENTS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCTS SHALL NOT EXCEED THE COST OF THE PRODUCT AT ISSUE or $500.00, WHICHEVER IS GREATER. WITHOUT REGARD TO THE NATURE OF THE CLAIM, LOSSES OR DAMAGES INCURRED. YOU EXPRESSLY UNDERSTAND AND AGREE THAT BEMER WOULD NOT PROVIDE THE SITE OR PRODUCTS TO YOU WITHOUT SUCH LIMITATIONS.
      3. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. Accordingly, some of the above limitations may not apply to you.
      4. This Section 14 survives termination, cancellation or expiration of the Agreement for any reason.
    15. Dispute Resolution Agreement
      1. THIS PROVISION AFFECTS HOW CLAIMS YOU MAY HAVE AGAINST BEMER, OR CLAIMS BEMER MAY HAVE AGAINST YOU, WILL BE RESOLVED. THE PARTIES UNDERSTAND AND AGREE THAT THE DISPUTE RESOLUTION AGREEMENT IN THIS SECTION 15 OPERATES AS A SEPARATE AND DISTINCT AGREEMENT THAT IS SEVERABLE FROM THE REMAINDER OF THE AGREEMENT AND IS ENFORCEABLE REGARDLESS OF THE ENFORCEABILITY OF ANY OTHER PROVISION OF THE AGREEMENT OR THE AGREEMENT AS A WHOLE. CONSIDERATION FOR THIS DISPUTE RESOLUTION AGREEMENT INCLUDES, WITHOUT LIMITATION, THE PARTIES’ MUTUAL AGREEMENT TO ARBITRATE DISPUTES. THE PARTIES FURTHER UNDERSTAND AND AGREE THAT THE UNENFORCEABILITY OF THE AGREEMENT IN WHOLE OR IN PART SHALL NOT SUPPORT A FINDING THAT THE DISPUTE RESOLUTION AGREEMENT IN THIS SECTION 15 IS UNENFORCEABLE.
      2. BEMER MAY AMEND THE TERMS AND CONDITIONS OF THE DISPUTE RESOLUTION AGREEMENT IN THIS SECTION 15 FROM TIME TO TIME. ANY SUCH AMENDMENTS WILL BE MADE IN ACCORDANCE WITH THE DUTY OF GOOD FAITH AND FAIR DEALING. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ANY AMENDMENT BY THE COMPANY TO THE DISPUTE RESOLUTION AGREEMENT IN THIS SECTION 15 SHALL ONLY TAKE EFFECT UPON YOUR EXPRESS AGREEMENT TO SUCH AMENDMENT. YOU MAY INDICATE YOUR AGREEMENT TO SUCH PROPOSED AMENDMENT BY FOLLOWING THE INSTRUCTIONS ACCOMPANYING THE PROPOSED AMENDMENT. BEMER MAY TERMINATE THE AGREEMENT OF ANYONE WHO DOES NOT AGREE TO A PROPOSED AMENDMENT TO THE DISPUTE RESOLUTION AGREEMENT WITHIN 30 DAYS AFTER NOTICE OF THE AMENDMENT IS PROVIDED. ANY SUCH AMENDMENT SHALL APPLY TO ALL DISPUTES SUBMITTED TO MEDIATION OR ARBITRATION BY YOU OR THE COMPANY (INCLUDING ANY RELATED PARTIES, AS DEFINED BELOW) ON OR AFTER THE EFFECTIVE DATE OF THE AMENDMENT, REGARDLESS OF THE DATE OF OCCURRENCE OR ACCRUAL OF ANY FACTS UNDERLYING SUCH DISPUTE.
      3. Any controversy, claim or dispute of whatever nature arising between you, on the one hand, and BEMER and/or the Related Parties (as defined below), on the other, including but not limited to those arising out of or relating to this Agreement or the breach thereof; the sale, purchase or use of the Products or sales kits; or the commercial, economic or other relationship of you and BEMER and/or the Related Parties (for purposes of this Dispute Resolution Agreement, each a “Party”), whether such claim is based on rights, privileges or interests recognized by or based upon statute, contract, tort, common law or otherwise (“Dispute”), and any Dispute as to the arbitrability of a matter under this provision, shall be settled through mediation or arbitration, as provided in this Section 15, except that the arbitrator(s) shall have no authority to determine that a mediation or arbitration may proceed on behalf of or against a class. The Parties understand and agree that if the arbitrator or arbitral panel awards any relief outside the authority set forth herein, any party may seek a review of the award in the exclusive jurisdiction and venue of the United States District Court for the Southern District of California in San Diego, California or in state court in San Diego, California.
      4. For any Dispute involving $10,000 or more, prior to instituting any arbitration as provided below, a Party must submit the Dispute to JAMS for non-binding mediation by providing notice of such request to all other concerned Parties and providing such notice to JAMS. The Parties shall cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in promptly scheduling the mediation proceedings, and shall participate in good faith in the mediation either in person at a mutually acceptable time and place or by telephone or videoconference, in accordance with the then-prevailing JAMS’s mediation procedures and this Section 15, which shall control. Absent the mutual agreement of the Parties, any in-person mediation shall be held in San Diego, California and shall last no more than two business days. Except as otherwise provided herein, each party shall pay its own fees, costs, and individual expenses associated with conducting and attending the mediation.
      5. Any Dispute not resolved in writing by negotiation or mediation shall be subject to and shall be settled exclusively by final, binding arbitration in San Diego, California, in accordance with the then-prevailing Comprehensive Arbitration Rules of JAMS, unless the laws of the state or province in which you reside expressly requires otherwise. The JAMS rules and procedures are available at jamsadr.com (http://jamsadr.com/). Unless otherwise agreed by the parties, any mediator who mediated a Dispute between the Parties previously shall be disqualified from serving as an arbitrator in the case. In order to promote to the fullest extent reasonably possible a mutually amicable resolution of Disputes in a timely, efficient, and cost-effective manner, the Parties hereby waive their respective rights to trial by jury or any court.
      6. Any mediation, if required, under this Dispute Resolution Agreement must be commenced no later than one year after the Dispute arose, and, in the event the Dispute is not resolved via mediation, any arbitration proceeding must be commenced by the later of three months after the conclusion of the mediation or one year after the Dispute arose. Failure to timely commence an arbitration proceeding or, if applicable, mediation, constitutes both an absolute bar to the commencement of an arbitration proceeding or mediation with respect to the Dispute, and a waiver of the Dispute. The Parties agree that time is of the essence and hereby waive the applicability of any other statute of limitations.
      7. Notwithstanding the rules of JAMS, the following will apply to all arbitration actions:
        1. The arbitration will be conducted in English.
        2. The Federal Rules of Evidence will apply in all cases.
        3. The parties will be entitled to bring motions under Rules 12 and/or 56 of the Federal Rules of Civil Procedure.
        4. The parties will be allotted equal time to present their respective cases, including cross-examinations.
        5. The decision of the arbitrator will be final and binding on the parties and may, if necessary, be reduced to a judgment in a court of law, except that a Party may choose to appeal certain arbitration awards as described below. Any motion or action to confirm, vacate, modify, or otherwise enter judgment on the award shall comply with Section 16.a, below. Further, any Party seeking to enforce an award of an arbitrator(s) shall submit the award under seal to maintain protections of confidential information, and the Parties hereby agree and consent to the filing of such a submission, motion, or order under seal.
      8. In addition to the foregoing and notwithstanding the rules of JAMS, certain procedures will apply depending on the amount in controversy. For Disputes in which the amount in controversy is less than $1,000,000.00 (one million dollars), the following procedures will apply absent mutual agreement of the Parties to the contrary:
      9. The arbitration will occur within 180 days from the date on which the arbitrator is appointed and will last no more than five business days.
      10. There will be one arbitrator selected from the panel provided by JAMS, using the JAMS rules for arbitrator selection.
      11. The arbitrator shall institute discovery consistent with the goals of arbitration. Discovery and disclosure of information will be conducted under the rules provided by JAMS to achieve the usual goals of arbitration, including cost effective and efficient resolution of disputes between parties, but in no event shall the Parties be entitled to discovery rights greater than provided by the Federal Rules of Civil Procedure.
      12. For Disputes in which the amount in controversy is equal to or exceeds $1,000,000.00, the following procedures will apply absent mutual agreement of the Parties to the contrary:
      13. There will be three arbitrators selected from the panel provided by JAMS, using the JAMS rules for arbitrator selection.
      14. The Parties will be entitled to, and limited by, all discovery rights permitted by the Federal Rules of Civil Procedure.
      15. The parties will be entitled to appeal any arbitration award to an Appeal Panel under JAMS Optional Arbitration Appeal Procedures. The parties agree to request oral argument for any appeal filed under the Optional Arbitration Appeal Procedures.
      16. The arbitrator(s) will have no authority to award punitive damages, except where an applicable law or statute expressly provides for punitive damages, and may not, in any event, make any ruling, finding, or award that does not conform to the provisions of the Agreement.
      17. NEITHER YOU NOR BEMER AGREES TO ANY MEDIATION OR ARBITRATION ON A CLASS BASIS, AND THE MEDIATOR AND ARBITRATOR(S) SHALL HAVE NO AUTHORITY TO PROCEED ON SUCH A BASIS. EXCEPT AS PROVIDED IN SECTION 16.i, A PARTY MAY ASSERT A CLAIM OR COUNTERCLAIM ONLY IN THAT PARTY’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS PROCEEDING. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE JAMS RULES, THE MEDIATOR AND ARBITRATOR(S) MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CLASS PROCEEDING. UNDER THE PROCEDURES OUTLINED IN THIS SECTION 15, A MEDIATOR OR ARBITRATOR(S) SHALL NOT COMBINE OR CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES TO THE PROCEEDING.
      18. In the event the prohibition on class arbitration is deemed invalid or unenforceable after exhaustion of all appeals of that issue, then, to the extent that class claims are asserted in a Dispute, such class claims shall be litigated in a state or federal court residing in San Diego, California.
      19. The Parties agree that BEMER has valuable trade secrets and confidential information. The Parties agree to take all necessary steps to protect from public disclosure such trade secrets and confidential information.
      20. Except as provided below, no Party shall be entitled to commence or maintain any action in a court of law upon any matter in Dispute until such matter has been submitted and determined as provided here, and then only for the enforcement of such arbitration award. Notwithstanding this mediation and arbitration policy, either Party may apply to a court of competent jurisdiction as necessary to enforce an arbitration award, or to seek a temporary restraining order or preliminary injunction to ensure that the relief sought in arbitration is not rendered ineffectual during the pendency of, or after the rendition of, a decision in any arbitration proceeding. The institution of any action shall not constitute a waiver of the right or obligation of any Party to submit any claim seeking relief other than injunctive or enforcement relief to arbitration.
      21. Although this Agreement is made and entered into between you and BEMER, the Company’s affiliates, owners, members, managers, directors, and employees (“Related Parties”) are intended third party beneficiaries of the Agreement for purposes of the provisions referring specifically to them, including the Dispute Resolution Agreement in this Section 15. The Parties acknowledge that nothing contained herein is intended to create any involvement by, responsibility of, or liability for, the Related Parties with respect to any dealings between you and BEMER, and the Parties further acknowledge that nothing contained herein shall be argued by either of them to constitute any waiver by the Related Parties of any defense which Related Parties may otherwise have concerning whether they can properly be made a party to any Dispute between the other Parties. Each Party to the mediation or arbitration will be responsible for its own costs and expenses of mediation or arbitration, including legal and filing fees, except where an applicable statute or other law provides for recovery of legal fees and costs. However, if any damages awarded are greater than $1,000,000 or the arbitrator or arbitral panel determines that the Dispute is frivolous, the arbitrator(s) may require the losing party to pay the prevailing party’s costs and expenses of arbitration, including legal, expert, and filing fees and costs, to the fullest extent allowed by applicable law.
      22. The Dispute Resolution Agreement in this Section 15 shall survive any termination, cancellation, or expiration of this Agreement for any reason.
    16. Miscellaneous Provisions
      1. Applicable law and venue: Jurisdiction and venue of any matter not subject to arbitration shall reside exclusively in San Diego, California. The Agreement is to be construed in accordance with and governed by the laws of the state in which the you reside , without regard to its choice of law principles, except that, as applicable, the Federal Arbitration Act shall govern the Agreement without giving effect to any state law to the contrary. Notwithstanding anything to the contrary herein, residents of the State of Louisiana shall be entitled to pursue resolution of Disputes in their home forum and pursuant to Louisiana law, to the extent allowed or required under Louisiana law. For such Disputes brought in Louisiana, to the extent allowed by Louisiana law, all other terms of the Dispute Resolution Agreement in Section 15 above shall apply to such Dispute, including without limitation the mutual obligation to arbitrate Disputes on an individual basis. This Section 16.a survives termination, cancellation, or expiration of the Agreement for any reason.
      2. Force Majeure: Except for payment obligations, neither party shall be liable for any inadequate performance, failure or delay caused by any condition beyond its reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance). If BEMER is unable to deliver the Site or Products, it will use best efforts to make the delivery at the next practicable opportunity.
      3. Entire Agreement: This Agreement, which includes the Privacy Policy, and if you are an IBD it includes also the IBD Agreement and the Policies & Procedures, constitutes the entire understanding between you and BEMER about your purchase and use of the Products, and supersedes all prior or contemporaneous oral or written understandings and agreements concerning the subject matter of this Agreement.
      4. Severability: Should any provision of these Terms be held invalid void, or otherwise unenforceable, that provision shall be deleted, but all other provisions shall continue in full force and effect. The severed provision, or portion thereof, shall be reformed to reflect the purpose of the provision as closely as possible.
      5. Waiver: Failure or neglect by BEMER to enforce any of the provisions of these Terms shall not be construed or deemed a waiver of its rights nor shall this affect the validity of the whole or any part of these Terms, nor prejudice BEMER's rights to take subsequent action.
      6. Notice: By using the Site or Products, you consent to receiving electronic communications from BEMER. You agree that any notice, agreements, disclosure or other communications that we send to you electronically will satisfy any legal requirements for written communication, including without limitation service of process.
      7. Notice for California Users: Under California Civil Code Section1689.3, California users of the Site receive the following consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
      8. Statute of Limitations: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms must be filed within one (1) year after such claim or cause of action arose or within the shortest limit permitted under applicable law or be forever barred.
      9. Private Attorneys General Actions: Notwithstanding anything to the contrary herein, any party may bring disputes pursuant to California’s Private Attorneys General Act (“PAGA”) or other statutes providing a right to bring representative actions that may not be waived by contract, provided, however, that any PAGA or similar such claims shall be exempt from the agreement to arbitrate in Section 15 and the waiver on representative actions in Section 16.j and, to the extent permitted by applicable law, shall be brought in the exclusive jurisdiction of a state or federal court residing in San Diego, California. This Section 16.i survives termination, cancellation, or expiration of the agreement for any reason.
      10. No Class Actions: BEMER AND YOU AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING, WITHOUT LIMITATION, FEDERAL OR STATE CLASS ACTIONS OR CLASS ARBITRATIONS. THIS SECTION 16.j SURVIVES TERMINATION, CANCELLATION, OR EXPIRATION OF THE AGREEMENT FOR ANY REASON.

    BEMER USA LLC is a leader in the field of microcirculation. BEMER Group North America, 1989 Palomar Oaks Way, Carlsbad, CA 92011

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