PURSUANT TO SECTION 3 OF THIS AGREEMENT, RENTAL DEVICES MUST BE RETURNED IN OPERATOR’S ORIGINAL PACKAGING. TO FACILITATE THE RETURN OF YOUR RENTAL DEVICES, PLEASE RETAIN, PRESERVE, AND MAINTAIN OPERATOR’S ORIGINAL PACKAGING OF YOUR RENTAL DEVICES. IF YOU DO NOT HAVE THE ORIGINAL PACKAGING OF YOUR RENTAL DEVICES AT THE END OF YOUR SUBSCRIPTION, YOU MAY INCUR AN ADDITIONAL FEE FOR REPLACEMENT PACKAGING.
PLEASE BE AWARE THAT THIS AGREEMENT CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND OPERATOR. AMONG OTHER THINGS, SECTION 18 OF THIS AGREEMENT INCLUDES A JURY TRIAL WAIVER AND AN AGREEMENT TO ARBITRATE WHICH REQUIRES THAT ALL DISPUTES BETWEEN THE PARTIES SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 19 OF THIS AGREEMENT ALSO CONTAINS A CLASS ACTION WAIVER. PLEASE READ THESE SECTIONS CAREFULLY.
Your Order Form, which is part of this Agreement, contains information about your subscription, including (i) the physical products, and the condition thereof (e.g., new, refurbished, etc.), that you will receive on a rental basis as part of this Agreement (the “Rental Devices”); (ii) any additional services you are entitled to receive (the “Added Services”); (iii) any additional consumable products you are entitled to receive (the “Added Consumables”); (iv) the monthly payment amount to be paid by you to Operator, which is subject to fluctuations in government fees or taxes (the “Recurring Payment”); (v) any one-time setup fees (the “Setup Fee”); (vi) the minimum commitment period, which could be as short as one month on a month-to-month basis (the “Commitment Period”); (vii) the applicable merchant or manufacturer, if any, with whom Operator has engaged to provide an offering of the Services; and (viii) if your subscription is for a fixed-term, the end date of the subscription (the “Subscription End Date”), or if no Subscription End Date is provided, the subscription will continue on a month-to-month basis until terminated. Items (i) through (iii) of this paragraph are referred to collectively as the “Services.”
1.1 Soft Credit Inquiry & Identity Verification
Effective exclusively for individuals who applied for a subscription on or after May 30, 2025.
You authorize Operator to verify the information you provide in connection with this Agreement. This includes your express written instruction to obtain information from one or more consumer reporting agencies for purposes that may include fraud prevention, identity verification, eligibility determination, information verification, and the monitoring, servicing, or collection of your account. This verification may involve a soft credit inquiry, which will not impact your credit score and is visible only to you. It will not be seen by lenders or other third parties and will not appear as a hard inquiry or affect your creditworthiness. You further authorize any relevant third parties to disclose information requested by Operator, its contractors, or agents, unless otherwise prohibited by applicable law.
2.2. Termination. Termination of a subscription may be initiated through one of the following:
2.3 Effect of Termination; Survival. Upon termination of a subscription, Operator shall no longer be responsible for providing any Services related thereto, and you shall immediately return all Rental Devices in a manner consistent with Section 3 of this Agreement. This Agreement shall terminate upon the termination of all subscriptions, your return of all Rental Devices, and your full payment of all unpaid balances due to Operator. Sections 2.3, 3, 12-13, 16-21 of this Agreement will survive any termination of this Agreement. 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.
Rental Devices must be returned in a condition similar to that in which they were received (except normal wear and tear), and returned in Operator’s original packaging, with all associated parts, accessories, dongles, cables, instruction manuals, and other components. You shall take all reasonable efforts to package, secure, and return Rental Devices in a way designed to avoid damage, alteration, and theft. If you no longer have Operator’s original packaging or Operator’s original packaging is damaged after receipt by you, you must notify Operator. Operator may charge you a reasonable fee for replacement packaging and shipping charges incurred by Operator to provide replacement packaging to you.
If you are obligated to return a Rental Device, or Operator requests you to return a Rental Device, you 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 of Operator’s provision of a return method (the “Return Deadline”). Operator shall be responsible for providing a method of return that is similar to that which you used to receive the Rental Device. If no such method is available, Operator shall be responsible for providing a reasonable alternative method of return. When Operator provides the method of return, the Rental Device will be deemed returned upon being duly placed by you into possession of Operator’s carrier for transport to Operator. If you are unable to complete your return using a method provided by Operator, you shall be responsible for, and bear all financial burden and associated liability with, procuring your own reasonable methods and means to promptly and securely return the Rental Device. When you do not use a method of return provided by Operator, the Rental Device will be deemed returned upon delivery to Operator by your carrier.
If (i) you fail to meet the Return Deadline (other than as a result of Operator’s negligence); (ii) you return a Rental Device to Operator which is damaged or altered, either in form or function, from how it was provided to you (except normal wear and tear); or (iii) Operator has a reasonable, good-faith belief that you no longer have possession of a Rental Device, or that a Rental Device has been damaged or altered, either in form or function, from how it was provided to you (except normal wear and tear); then Operator may use all legal methods and remedies available to recover such Rental Device or its cost, including repossession, private investigation, third-party collection companies, civil litigation, and referral to law enforcement. You authorize Operator to charge you the cost to repair or replace the Rental Device or components thereof, which will not exceed the full replacement cost for the Rental Device, and you shall be immediately and fully liable for such cost. You shall be liable for any and all costs incurred by Operator, Operator’s affiliates, or third parties involved in the recovery of the Rental Device or collection of related costs, including reasonable attorneys’ fees, filing costs, and investigation and collection company fees.
YOU ACKNOWLEDGE THAT A FAILURE TO READ AND ABIDE BY ALL INSTRUCTIONS, WARNINGS, MANUALS, AND OTHER SUCH MATERIALS IN CONNECTION WITH SERVICES PROVIDED UNDER THIS AGREEMENT MAY RESULT IN SERIOUS INJURY OR DEATH TO YOU OR OTHER PERSONS OR DAMAGE TO PROPERTY.
YOU ACKNOWLEDGE THAT RENTAL DEVICES PROVIDED MAY BE IN REFURBISHED CONDITION, IF SO INDICATED ON THE ORDER FORM.
YOU SHALL INSPECT ANY RENTAL DEVICE PRIOR TO USE FOR ANY DEFECTS OR DAMAGE, AND IF ANY ARE IDENTIFIED, IMMEDIATELY REPORT THEM TO OPERATOR AND DISCONTINUE USE OF SUCH RENTAL DEVICE.
YOU WILL TAKE ALL NECESSARY PRECAUTIONS REGARDING THE RENTAL DEVICES AND OTHER SERVICES TO PROTECT ALL PERSONS AND PROPERTY FROM DEATH, INJURY, OR DAMAGE.
You agree to take due care of all Rental Devices received in connection with this Agreement, including reasonable measures to prevent damage, alteration, and theft. You will not damage or perform any alterations of Rental Devices, including to form or function. You will not, and will not attempt to, circumvent, block, disable, remove, modify or reverse engineer any activation, licensing, theft-prevention or similar technological mechanism on any Rental Device. You will use Rental Devices only in the manner which they are intended to be used. You will prevent any third party from using a Rental Device or the other Services.
You shall within forty-eight (48) hours report in writing to Operator: (i) any injuries or deaths incurred by you or others in connection with the Services; (ii) any damage or alterations, including to form or function, to Rental Devices; or (iii) any damage to other property caused in connection with the Services. If any of the foregoing occurred in connection with criminal conduct, including if a Rental Device was vandalized or stolen, you shall file a police report in the jurisdiction in which such conduct occurred within twenty-four (24) hours of such occurrence, or if not practicable within such time, then as soon as reasonably practicable thereafter.
When completing the Order Form, you shall designate a primary method of payment which Operator shall use to collect payment from you, and any non-primary payment methods as Operator requires. You agree to keep adequate funds available on such payment methods for Operator at all times. You authorize Operator to automatically collect authorized payments under this Agreement from you by means including: (i) charging your credit or debit cards; and (ii) direct debiting your bank accounts.
You agree to pay Operator the amount of such monthly Recurring Payment that is specified in the Order Form in accordance with the terms of this Agreement. You hereby authorize Operator to charge your primary payment method identified on the Order Form the Recurring Payment on its respective due date until your subscription is terminated, and you further agree to pay any charges so incurred. You also authorize Operator to charge any non-primary payment methods you provide to collect payment under this Agreement, when Operator is unable to collect payment from the primary payment method you designate. Notwithstanding the foregoing, Operator is not obligated to collect payment from any method other than your primary payment method. You will promptly notify Operator if you choose to change your primary payment method, or if you are unable to meet your payment obligations. To use bank ACH debit as a payment method, you must also execute the authorization agreement attached to your Order Form.
You shall not provide any payment information to Operator which you do not have full legal authorization to use. You shall be responsible for any government fees or taxes in connection with your subscription, including those taxes and fees that may fluctuate from time to time. If Operator fails to collect any applicable government taxes or fees, Operator shall have one (1) year to charge you for any such amounts. If you are charged in excess of the amount permissible under this Agreement, you shall notify Operator in writing of any billing or payment discrepancies within two (2) years of the discrepant charge, otherwise you shall be considered to have accepted any such charges as being in accordance with this Agreement and no longer disputable to the extent permitted by law.
If you accrue an unpaid balance for sixty (60) calendar days or more, Operator may use all legal methods and remedies available to collect such unpaid balance, including selling such balance to third-party collection companies and civil litigation. You shall be liable for any and all costs incurred by Operator, Operator’s affiliates, or third parties involved in the collection of your unpaid balance, including reasonable attorneys’ fees, filing costs, and collection company fees.
If you seek to purchase your Rental Device and/or any other Services in connection with this Agreement, upon request Operator may, but is not required to, extend you an offer to purchase your Rental Device(s) and/or any additional Services which Operator chooses to offer to you. Operator may offer any such Rental Device(s) and/or Services on terms and conditions of its choosing, including based on Operator’s estimated value of such items and other commercial considerations. Upon your acceptance of such an offer by full payment of the applicable purchase price and payment for any other unpaid balances due to Operator, (i) you shall no longer be liable for any future Recurring Payments associated with the purchased Rental Device, (ii) you shall have the full rights, title, and responsibility to the Rental Device purchased, and (iii) Operator shall be immediately relieved of any and all of its obligations in connection with the sold Rental Device. Operator makes no representations, and provides no warranties, associated with Rental Devices purchased by you. You 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 software licenses and consumable materials.
BEFORE RETURNING A RENTAL DEVICE, PLEASE DELETE YOUR DATA FROM THE RENTAL DEVICE TO HELP PROTECT YOUR PRIVACY.
For clarity, all Rental Devices (including any upgraded devices) are and will remain the property of Operator, are and will remain subject to the terms of this Agreement, and must ultimately be returned by you to Operator in a manner consistent with Section 3 of this Agreement.
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 may also revoke this license if Operator determines that you have breached this Agreement.
Operator will process and use your information in accordance with Operator’s Privacy Policy, which is available at https://fragile.co/legal/privacy-policy.
The Rental Devices may include or provide access to third-party software, services, technology and other resources (“Third-Party Technology”) that are subject to additional terms and conditions, privacy policies or other agreements with third parties (“Third-Party Agreements”). It is your responsibility to read and comply with all such Third-Party Agreements. Except as expressly set forth herein, Operator will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third-Party Technology, whether caused by your failure to comply with any Third-Party Agreements or otherwise.
YOU ACKNOWLEDGE THAT THE RENTAL DEVICES PROVIDED UNDER THIS AGREEMENT MAY BE REFURBISHED, USED OR NOT OTHERWISE IN NEW CONDITION AND ARE PROVIDED “AS IS” AND “WITH ALL FAULTS”. YOU ASSUME ALL RISKS ASSOCIATED WITH THE POSSESSION, USE AND OPERATION OF SUCH RENTAL DEVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE THERE IS A RISK OF LOSSES, INJURIES, DEATH, OR DAMAGES ARISING FROM OR RELATED TO THE POSSESSION, USE, OR MISUSE OF THE RENTAL DEVICES OR OTHER SERVICES OR A BREACH OF THESE TERMS, AND YOU ASSUME ALL RISK OF SUCH LOSSES, INJURIES, DEATH, OR DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU HEREBY RELEASE OPERATOR FROM ANY AND ALL RESPONSIBILITY OR LIABILITY FOR SUCH LOSSES, INJURIES, DEATH, OR DAMAGES WHICH YOU OR OTHERS MAY EXPERIENCE ARISING FROM OR RELATED TO YOUR OR OTHER’S POSSESSION, USE, OR MISUSE OF THE RENTAL DEVICES OR OTHER SERVICES OR A BREACH OF THESE TERMS, INCLUDING WITHOUT LIMITATION WHERE SUCH LOSSES, INJURIES, DEATH, OR DAMAGES OCCUR AS A RESULT OF OR ARE RELATED TO THE CONDUCT OR ACTIONS OF THE MANUFACTURER OR MERCHANT OF THE RENTAL DEVICE; PROVIDED, HOWEVER, THAT NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE LIABILITY FOR THE OPERATOR’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR ANY OTHER LIABILITY THAT CANNOT BE LAWFULLY LIMITED OR EXCLUDED UNDER APPLICABLE LAW.
PLEASE BE AWARE THAT THIS AGREEMENT CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND OPERATOR. AMONG OTHER THINGS, SECTION 18 OF THIS AGREEMENT INCLUDES A JURY TRIAL WAIVER AND AN AGREEMENT TO ARBITRATE WHICH REQUIRES THAT ALL DISPUTES BETWEEN THE PARTIES SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 19 OF THIS AGREEMENT ALSO CONTAINS A CLASS ACTION WAIVER. PLEASE READ THESE SECTIONS CAREFULLY.
Fragile, Inc.
Subscription Terms and Conditions
Last Updated April 8th, 2025
When subscribing to a product or service with Fragile, Inc. (the “Operator”), you as the subscriber (“You” or “Your”) represent, warrant, and covenant that you understand, accept, and agree to be bound to these Subscription Terms and Conditions and to your order form or digital order summary page (each, an “Order Form,” and collectively with these Subscription Terms and Conditions, the “Agreement”). Operator and you are referred to collectively as the “Parties.”
Your Order Form, which is part of this Agreement, contains information about your subscription, including (i) the physical products, and the condition thereof (e.g., new, refurbished, etc.), that you will receive on a rental basis as part of this Agreement (the “Rental Devices”); (ii) any additional services you are entitled to receive (the “Added Services”); (iii) any additional consumable products you are entitled to receive (the “Added Consumables”); (iv) the monthly payment amount to be paid by you to Operator, which is subject to fluctuations in government fees or taxes (the “Recurring Payment”); (v) any one-time setup fees (the “Setup Fee”); (vi) the minimum commitment period, which could be as short as one month on a month-to-month basis (the “Commitment Period”); (vii) the applicable merchant or manufacturer, if any, with whom Operator has engaged to provide an offering of the Services; and (viii) if your subscription is for a fixed-term, the end date of the subscription (the “Subscription End Date”), or if no Subscription End Date is provided, the subscription will continue on a month-to-month basis until terminated. Items (i) through (iii) of this paragraph are referred to collectively as the “Services.”
1. Order and Acceptance
Operator has the right to review a subscription prior to the fulfillment of any Services. To the extent permitted by law, Operator may in its sole discretion reject any subscription. Neither you, nor any third party, shall have the right to appeal Operator’s determination, except as required under law. Operator may require payment for a subscription prior to acceptance.
1.1 Soft Credit Inquiry & Identity Verification
Effective exclusively for individuals who applied for a subscription on or after May 30, 2025.
You authorize Operator to verify the information you provide in connection with this Agreement. This includes your express written instruction to obtain information from one or more consumer reporting agencies for purposes that may include fraud prevention, identity verification, eligibility determination, information verification, and the monitoring, servicing, or collection of your account. This verification may involve a soft credit inquiry, which will not impact your credit score and is visible only to you. It will not be seen by lenders or other third parties and will not appear as a hard inquiry or affect your creditworthiness. You further authorize any relevant third parties to disclose information requested by Operator, its contractors, or agents, unless otherwise prohibited by applicable law.
2. Term & Termination
2.1. Term. This Agreement shall be effective from the date you submit your Order Form (the “Commencement Date”). The duration of a subscription under this Agreement shall be calculated from the date the Rental Device is delivered to you (the “Rental Device Delivery Date”), and it shall continue until the Subscription End Date, or if no Subscription End Date is specified then it continues on a month-to-month basis until the date terminated.
2.2. Termination. Termination of a subscription may be initiated through one of the following:
(a) Automatic Termination. If a subscription is a fixed-term subscription for which an Subscription End Date is provided, then termination of the subscription shall automatically occur upon the Subscription End Date (or upon any modified Subscription End Date to which the Parties might agree).
(b) Operator Termination. Operator may, at any time, with or without reason, provide written notice to you that Operator is terminating a subscription, and the subscription shall terminate on the date specified by Operator, or immediately if no such date is specified.
(c) Your Termination. You may provide notice to Operator via your subscription customer portal, telephone at 415-707-0108, SMS at 866-535-4185 (please note your carrier’s charges may apply to telephone or SMS communications), or email at support@fragile.co, expressly stating that you are terminating a subscription and the subscription shall terminate on the date provided by you, or immediately if no such date is specified, so long as (i) the subscription has had full force and effect for the Commitment Period; and (ii) you are not past due on any payments due to Operator.
2.3 Effect of Termination; Survival. Upon termination of a subscription, Operator shall no longer be responsible for providing any Services related thereto, and you shall immediately return all Rental Devices in a manner consistent with Section 3 of this Agreement. This Agreement shall terminate upon the termination of all subscriptions, your return of all Rental Devices, and your full payment of all unpaid balances due to Operator. Sections 2.3, 3, 12-13, 16-21 of this Agreement will survive any termination of this Agreement. 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
BEFORE RETURNING A RENTAL DEVICE, PLEASE DELETE YOUR DATA FROM THE RENTAL DEVICE TO HELP PROTECT YOUR PRIVACY. Rental Devices must be returned in a condition similar to that in which they were received (except normal wear and tear), and returned in Operator’s original packaging, with all associated parts, accessories, dongles, cables, instruction manuals, and other components. You shall take all reasonable efforts to package, secure, and return Rental Devices in a way designed to avoid damage, alteration, and theft. If you no longer have Operator’s original packaging or Operator’s original packaging is damaged after receipt by you, you must notify Operator. Operator may charge you a reasonable fee for replacement packaging and shipping charges incurred by Operator to provide replacement packaging to you.
If you are obligated to return a Rental Device, or Operator requests you to return a Rental Device, you 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 of Operator’s provision of a return method (the “Return Deadline”). Operator shall be responsible for providing a method of return that is similar to that which you used to receive the Rental Device. If no such method is available, Operator shall be responsible for providing a reasonable alternative method of return. When Operator provides the method of return, the Rental Device will be deemed returned upon being duly placed by you into possession of Operator’s carrier for transport to Operator. If you are unable to complete your return using a method provided by Operator, you shall be responsible for, and bear all financial burden and associated liability with, procuring your own reasonable methods and means to promptly and securely return the Rental Device. When you do not use a method of return provided by Operator, the Rental Device will be deemed returned upon delivery to Operator by your carrier.
If (i) you fail to meet the Return Deadline (other than as a result of Operator’s negligence); (ii) you return a Rental Device to Operator which is damaged or altered, either in form or function, from how it was provided to you (except normal wear and tear); or (iii) Operator has a reasonable, good-faith belief that you no longer have possession of a Rental Device, or that a Rental Device has been damaged or altered, either in form or function, from how it was provided to you (except normal wear and tear); then Operator may use all legal methods and remedies available to recover such Rental Device or its cost, including repossession, private investigation, third-party collection companies, civil litigation, and referral to law enforcement. You authorize Operator to charge you the cost to repair or replace the Rental Device or components thereof, which will not exceed the full replacement cost for the Rental Device, and you shall be immediately and fully liable for such cost. You shall be liable for any and all costs incurred by Operator, Operator’s affiliates, or third parties involved in the recovery of the Rental Device or collection of related costs, including reasonable attorneys’ fees, filing costs, and investigation and collection company fees.
4. Rental Device Usage and Restrictions
You agree to use the Rental Devices and other Services in compliance with law. You agree to read and comply with all Rental Device instruction manuals. If you do not receive an instruction manual with your Rental Device, you will immediately contact Operator for assistance and prevent use of the Rental Device until you have received and read an instruction manual. Furthermore, you agree 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 you.
YOU ACKNOWLEDGE THAT A FAILURE TO READ AND ABIDE BY ALL INSTRUCTIONS, WARNINGS, MANUALS, AND OTHER SUCH MATERIALS IN CONNECTION WITH SERVICES PROVIDED UNDER THIS AGREEMENT MAY RESULT IN SERIOUS INJURY OR DEATH TO YOU OR OTHER PERSONS OR DAMAGE TO PROPERTY.
YOU ACKNOWLEDGE THAT RENTAL DEVICES PROVIDED MAY BE IN REFURBISHED CONDITION, IF SO INDICATED ON THE ORDER FORM.
YOU SHALL INSPECT ANY RENTAL DEVICE PRIOR TO USE FOR ANY DEFECTS OR DAMAGE, AND IF ANY ARE IDENTIFIED, IMMEDIATELY REPORT THEM TO OPERATOR AND DISCONTINUE USE OF SUCH RENTAL DEVICE.
YOU WILL TAKE ALL NECESSARY PRECAUTIONS REGARDING THE RENTAL DEVICES AND OTHER SERVICES TO PROTECT ALL PERSONS AND PROPERTY FROM DEATH, INJURY, OR DAMAGE.
You agree to take due care of all Rental Devices received in connection with this Agreement, including reasonable measures to prevent damage, alteration, and theft. You will not damage or perform any alterations of Rental Devices, including to form or function. You will not, and will not attempt to, circumvent, block, disable, remove, modify or reverse engineer any activation, licensing, theft-prevention or similar technological mechanism on any Rental Device. You will use Rental Devices only in the manner which they are intended to be used. You will prevent any third party from using a Rental Device or the other Services.
You shall within forty-eight (48) hours report in writing to Operator: (i) any injuries or deaths incurred by you or others in connection with the Services; (ii) any damage or alterations, including to form or function, to Rental Devices; or (iii) any damage to other property caused in connection with the Services. If any of the foregoing occurred in connection with criminal conduct, including if a Rental Device was vandalized or stolen, you shall file a police report in the jurisdiction in which such conduct occurred within twenty-four (24) hours of such occurrence, or if not practicable within such time, then as soon as reasonably practicable thereafter.
5. Payment; Subscription and Automatic Renewal
On the Commencement Date, you shall pay Operator the Setup Fee and the first Recurring Payment. You shall also subsequently pay Operator the Recurring Payment on each monthly anniversary of the Rental Device Delivery Date. All Recurring Payments shall be made in advance of the month to which they apply.
When completing the Order Form, you shall designate a primary method of payment which Operator shall use to collect payment from you, and any non-primary payment methods as Operator requires. You agree to keep adequate funds available on such payment methods for Operator at all times. You authorize Operator to automatically collect authorized payments under this Agreement from you by means including: (i) charging your credit or debit cards; and (ii) direct debiting your bank accounts.
You agree to pay Operator the amount of such monthly Recurring Payment that is specified in the Order Form in accordance with the terms of this Agreement. You hereby authorize Operator to charge your primary payment method identified on the Order Form the Recurring Payment on its respective due date until your subscription is terminated, and you further agree to pay any charges so incurred. You also authorize Operator to charge any non-primary payment methods you provide to collect payment under this Agreement, when Operator is unable to collect payment from the primary payment method you designate. Notwithstanding the foregoing, Operator is not obligated to collect payment from any method other than your primary payment method. You will promptly notify Operator if you choose to change your primary payment method, or if you are unable to meet your payment obligations. To use bank ACH debit as a payment method, you must also execute the authorization agreement attached to your Order Form.
You shall not provide any payment information to Operator which you do not have full legal authorization to use. You shall be responsible for any government fees or taxes in connection with your subscription, including those taxes and fees that may fluctuate from time to time. If Operator fails to collect any applicable government taxes or fees, Operator shall have one (1) year to charge you for any such amounts. If you are charged in excess of the amount permissible under this Agreement, you shall notify Operator in writing of any billing or payment discrepancies within two (2) years of the discrepant charge, otherwise you shall be considered to have accepted any such charges as being in accordance with this Agreement and no longer disputable to the extent permitted by law.
If you accrue an unpaid balance for sixty (60) calendar days or more, Operator may use all legal methods and remedies available to collect such unpaid balance, including selling such balance to third-party collection companies and civil litigation. You shall be liable for any and all costs incurred by Operator, Operator’s affiliates, or third parties involved in the collection of your unpaid balance, including reasonable attorneys’ fees, filing costs, and collection company fees.
6. Refunds
You are not entitled to any full or partial payment refunds.
7. Buy-Out and Rent-to-Own
YOUR SUBSCRIPTION IS NOT A RENT-TO-OWN PROGRAM OR AN INSTALLMENT SALE PROGRAM. YOU DO NOT HAVE AN OPTION TO BUY-OUT A RENTAL DEVICE OR OTHER SERVICE UNDER THIS AGREEMENT. AT NO POINT WILL YOU OWN A RENTAL DEVICE OR OTHER SERVICE PROVIDED UNDER THIS AGREEMENT, EVEN IF YOUR PAYMENTS EQUAL OR EXCEED THE RETAIL PRICE FOR A RENTAL DEVICE OR SERVICE.
If you seek to purchase your Rental Device and/or any other Services in connection with this Agreement, upon request Operator may, but is not required to, extend you an offer to purchase your Rental Device(s) and/or any additional Services which Operator chooses to offer to you. Operator may offer any such Rental Device(s) and/or Services on terms and conditions of its choosing, including based on Operator’s estimated value of such items and other commercial considerations. Upon your acceptance of such an offer by full payment of the applicable purchase price and payment for any other unpaid balances due to Operator, (i) you shall no longer be liable for any future Recurring Payments associated with the purchased Rental Device, (ii) you shall have the full rights, title, and responsibility to the Rental Device purchased, and (iii) Operator shall be immediately relieved of any and all of its obligations in connection with the sold Rental Device. Operator makes no representations, and provides no warranties, associated with Rental Devices purchased by you. You 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 software licenses and consumable materials.
8. Service Suspension
If you accrue any unpaid balance for more than fifteen (15) calendar days or are otherwise in breach of this Agreement, Operator may immediately suspend Services and take all actions necessary to effect such suspension, including : (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. You shall not be entitled to any prorated refund or delivery of regularly scheduled Services that you did not receive as a result of suspension. Operator may charge you any reasonable costs associated with effectuating and reinstating a service suspension, including labor time incurred by Operator.
9. Insurance
To the extent your jurisdiction requires you to obtain and maintain insurance for your rental, possession, or use of a Rental Device, you shall obtain and maintain all such required insurance from the Rental Device Delivery Date through the date that you return the Rental Device in a manner consistent with Section 3 of this Agreement.
10. Rental Device Refresh Upgrade Requests and Subscription Modification Requests
If you are an eligible Subscriber then you may from time to time request that Operator offer to upgrade your Rental Device or modify your existing subscription. Operator may, but is not required to, respond to such requests with offers for device upgrades or subscription modifications subject to availability and Operator discretion. Operator may reject an eligible Subscriber’s requests or discontinue entertaining such requests at any time and for any reason.10.1. Rental Device Upgrade Requests. If you are an eligible Subscriber, you may request that Operator offer to replace your Rental Device with an upgraded device, the precise specifications of the upgraded device Operator elects to offer in its discretion, if any, will be presented to you before you determine whether to accept any such upgraded device offer. If Operator intends to charge a one-time fee in exchange for the upgrade requested, Operator will also make that clear alongside the specifications. To be eligible to request such an upgraded device offer: (1) you must be an active Subscriber in good standing for all your Rental Devices and not be in breach of this Agreement or any other agreement with Operator when requesting an offer to upgrade the applicable Rental Device, (2) the subscription for the applicable Rental Device has had full force and effect for the Commitment Period, and (3) you must return the applicable Rental Device to Operator in a manner consistent with Section 3 of this Agreement. If you accept the upgraded device offer and return your then-current Rental Device to Operator, you will not receive the returned Rental Device back from Operator. Instead, the upgraded device will become your Rental Device for the duration of your subscription. Such a device upgrade pursuant to this Section 10 will not change your applicable Recurring Payment. Your request for and acceptance of the upgraded device offer is voluntary, and if you decline it then you will remain eligible to continue your then-current subscription for the applicable Rental Device, subject to the other terms of this Agreement.
BEFORE RETURNING A RENTAL DEVICE, PLEASE DELETE YOUR DATA FROM THE RENTAL DEVICE TO HELP PROTECT YOUR PRIVACY.
For clarity, all Rental Devices (including any upgraded devices) are and will remain the property of Operator, are and will remain subject to the terms of this Agreement, and must ultimately be returned by you to Operator in a manner consistent with Section 3 of this Agreement.
10.2. Subscription Modification Requests. If you are an eligible Subscriber, you may request that Operator offer to modify your existing subscription for an applicable Rental Device, the precise specifications of the subscription modification Operator elects to offer in its discretion, if any, will be presented to you before you determine whether to accept any such subscription modification offer. To be eligible to request such a subscription modification offer: (1) you must be an active Subscriber in good standing for all its Rental Devices and not be in breach of this Agreement or any other agreement with Operator when requesting an offer to modify the subscription for the applicable Rental Device, (2) the subscription for the applicable Rental Device has had full force and effect for the Commitment Period, (3) you must specify the subscription modification sought, and (4) the applicable Rental Device has not been upgraded, and the applicable subscription therefor has not been modified, within the preceding three months.
11. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, OPERATOR AND ITS SERVICE PROVIDERS SHALL NOT BE LIABLE FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING 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 PRODUCTS OR SERVICES OR OTHERWISE UNDER THIS AGREEMENT. IF PERMITTED UNDER PREVAILING LAW, THE MAXIMUM 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.
12. Ownership and Licenses
Operator’s and its service providers’ trademarks, service marks, logos, designs 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. Operator reserves all rights in its intellectual property not expressly granted to you in this Agreement.
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 may also revoke this license if Operator determines that you have breached this Agreement.
Operator will process and use your information in accordance with Operator’s Privacy Policy, which is available at https://fragile.co/legal/privacy-policy.
The Rental Devices may include or provide access to third-party software, services, technology and other resources (“Third-Party Technology”) that are subject to additional terms and conditions, privacy policies or other agreements with third parties (“Third-Party Agreements”). It is your responsibility to read and comply with all such Third-Party Agreements. Except as expressly set forth herein, Operator will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third-Party Technology, whether caused by your failure to comply with any Third-Party Agreements or otherwise.
13. Representations
By entering into this Agreement, you represent and warrant that you (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 pretenses or malicious intent; and (iv) have not provided any false or fictitious information to Operator or its service providers.
14. Limited Warranties
YOUR RENTAL DEVICE WILL MEET OR EXCEED THE DESCRIPTIONS AND SPECIFICATIONS DISPLAYED TO YOU ON THE ORDER FORM FROM OPERATOR FOR YOUR RENTAL DEVICE. OPERATOR IS NOT RESPONSIBLE FOR DESCRIPTIONS OR SPECIFICATIONS OF RENTAL DEVICES OR SERVICES FROM ANY OTHER PARTY. YOU ARE SOLELY RESPONSIBLE FOR REVIEWING YOUR ORDER FORM BEFORE YOU SUBMIT IT TO OPERATOR. YOUR SOLE REMEDY FOR A RENTAL DEVICE OR SERVICE BEING INACCURATELY DESCRIBED OR SPECIFIED IS TO RETURN IT IN A MANNER CONSISTENT WITH SECTION 3 OF THIS AGREEMENT WITHIN FIFTEEN (15) DAYS OF ITS DELIVERY TO YOU IN UNUSED CONDITION, OR IN MINIMALLY USED CONDITION TO THE EXTENT NECESSARY TO ASCERTAIN THE FOREGOING. OTHERWISE, THE SERVICES AND RENTAL DEVICES ARE PROVIDED “AS-IS,” AND OPERATOR AND ITS SERVICE PROVIDERS MAKE NO, AND TO THE EXTENT PERMITTED BY LAW HEREBY DISCLAIM ALL, EXPRESS OR IMPLIED WARRANTIES, INCLUDING OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REPRESENTATIONS, OR GUARANTIES REGARDING THE RENTAL DEVICES AND OTHER SERVICES. 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 ANY PRODUCT INFORMATION.
15. Your Responsibilities; Assumption of Risk; Release of Claims
Through your use of the Services and the Rental Devices, you agree that you will exercise due care and diligence in your possession, use and maintenance of the Rental Devices. Prior to your use of the Rental Devices, you agree that you shall carefully read and adhere to all warnings and instructions provided in any materials accompanying the Rental Devices, including any user manual that may accompany your Rental Device. You shall take all reasonable precautions to prevent damage, misuse, and mishandling of the Rental Devices while in your possession. You further agree to promptly notify the Operator if you become aware of or suspect any defects, malfunctions, or damages to the Rental Devices. In the event that the Rental Devices in your possession are damaged or defective, you shall promptly contact the Operator and follow the Operator’s instructions regarding your damaged or defective Rental Device. You agree that you shall not otherwise attempt to fix or have fixed any such Rental Device without the Operator’s prior written authorization.
YOU ACKNOWLEDGE THAT THE RENTAL DEVICES PROVIDED UNDER THIS AGREEMENT MAY BE REFURBISHED, USED OR NOT OTHERWISE IN NEW CONDITION AND ARE PROVIDED “AS IS” AND “WITH ALL FAULTS”. YOU ASSUME ALL RISKS ASSOCIATED WITH THE POSSESSION, USE AND OPERATION OF SUCH RENTAL DEVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE THERE IS A RISK OF LOSSES, INJURIES, DEATH, OR DAMAGES ARISING FROM OR RELATED TO THE POSSESSION, USE, OR MISUSE OF THE RENTAL DEVICES OR OTHER SERVICES OR A BREACH OF THESE TERMS, AND YOU ASSUME ALL RISK OF SUCH LOSSES, INJURIES, DEATH, OR DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU HEREBY RELEASE OPERATOR FROM ANY AND ALL RESPONSIBILITY OR LIABILITY FOR SUCH LOSSES, INJURIES, DEATH, OR DAMAGES WHICH YOU OR OTHERS MAY EXPERIENCE ARISING FROM OR RELATED TO YOUR OR OTHER’S POSSESSION, USE, OR MISUSE OF THE RENTAL DEVICES OR OTHER SERVICES OR A BREACH OF THESE TERMS, INCLUDING WITHOUT LIMITATION WHERE SUCH LOSSES, INJURIES, DEATH, OR DAMAGES OCCUR AS A RESULT OF OR ARE RELATED TO THE CONDUCT OR ACTIONS OF THE MANUFACTURER OR MERCHANT OF THE RENTAL DEVICE; PROVIDED, HOWEVER, THAT NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE LIABILITY FOR THE OPERATOR’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR ANY OTHER LIABILITY THAT CANNOT BE LAWFULLY LIMITED OR EXCLUDED UNDER APPLICABLE LAW.
16. Indemnification
You shall indemnify, defend, and hold harmless Operator, its service providers, and their respective officers, directors, employees and agents (each, an “Indemnified Party”) from and against any and all damages, judgments, penalties, fines, losses, liabilities, costs and expenses (including reasonable attorneys’ fees), injuries or death to persons or damage to property, and payments for injuries or death to persons or damage to property, caused or claimed to be caused by you or by any Rental Devices or Services in connection with this Agreement, arising from any claim, action, or demand made or brought against any Indemnified Party by a third party arising from (i) your use of the Services or Rental Devices (including the payment of fines and other fees in Section 5 above), (ii) your breach or violation of any provision of this Agreement or law, or (iii) your violation of the rights of any third party; except in each case where arising from the sole gross negligence or willful misconduct of Operator. You will immediately notify Operator of any such claim, action, or demand. Operator reserves the right to assume the exclusive defense of any claim, action, or demand, and you agree not to settle any of the foregoing without Operator’s prior written consent. The obligations in this Section 16 shall survive any termination of this Agreement, remaining in full force and effect for five (5) years following the termination of this Agreement.
17. Governing Law
Except to the extent preempted by U.S. federal law, the law of the State of California shall govern this Agreement, the interpretation and enforcement of its terms, and any claim or cause of action (in law or equity), controversy, or dispute arising out of or related to it or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction. 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.
18. Jury Trial Waiver; Alternative Dispute Resolution
18.1. YOU AND OPERATOR HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.You and Operator instead agree that all disputes arising out of or related to the Agreement, and claims that are based on common law, contract, tort, federal, state or other statutory claims (collectively, “Disputes”) shall be resolved by arbitration shall be resolved by arbitration administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect.
18.2. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the Parties from the AAA’s roster of consumer dispute arbitrators. If the Parties are unable to agree upon an arbitrator within thirty-five (35) business days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
18.3. The arbitrator shall have exclusive authority to resolve any Dispute, including disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon the Parties. This means that, among other things, you and Operator agree that an arbitral award shall have no preclusive effect in any other proceeding involving other parties. Judgment on the arbitration award may be entered in any court having jurisdiction. In any award of damages, the arbitrator shall abide by Section 11 (Limitation of Liability) of this Agreement.
18.4. The Parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
19. Class Action Waiver
YOU AND OPERATOR AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. 20. Miscellaneous
This Agreement (which, for clarity, includes the Order Form) constitutes the entire agreement between you and Operator relating to your access and use of the Services, your subscription, and the Rental Devices, and supersedes any prior agreements between you and Operator with respect to the Services, your subscription, or the Rental Devices. Please note that you also may be subject to additional terms and conditions of third parties when you use the Services, Rental Devices, third-party content, or third-party software. Operator may assign this Agreement or any of Operator’s rights or obligations under this Agreement to third parties. Operator may also engage third parties to perform any of its obligations under this Agreement. You may not assign this Agreement or any of your rights or obligations under this Agreement without Operator’s prior written consent. Any attempted assignment by you without Operator’s prior written consent is and will be void. A failure to exercise or enforce any right or provision that Operator or any of its service providers is entitled to under this Agreement shall not constitute a waiver of such right or provision. All rights and remedies of Operator and its service providers shall be cumulative. 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. As used in this Agreement, all references to “include,” “includes,” or “including” shall be deemed to be followed by the words “without limitation.”
21. Modification to This Agreement
Operator may modify this Agreement at any time upon notice, which may include email notice, to you, except that Operator will not modify the Recurring Payment during the Commitment Period (subject to fluctuations in government fees or taxes). Modifications will be effective no less than thirty (30) days after such notice, unless sooner required by law. During the Commitment Period, following Operator’s notice of a modification unrelated to fluctuations in government fees or taxes, you may provide a written objection if such modification is not yet effective. Upon such objection, you shall not be bound to the modification, and the previously effective provisions of the Agreement shall remain in full force and effect unless terminated by Operator or you.