ZEPHYRX Warranty POLICY

Limited Warranty & Software End-User License Agreement

Last updated May 12, 2021

Thank you for purchasing a ZEPHYRx product. We are proud of the craftsmanship and important functionality delivered by our ZEPHYRx family of products.

30-DAY RETURN POLICY

For any reason whatsoever you may return your ZEPHYRx product for a refund (less 15% restocking fee) within 30 days of your purchase. Please email orders@ZEPHYRx.com for a return merchandise authorization (RMA) number. Note that only unused, un-opened mouthpieces and nose clips may be returned.

12-MONTH LIMITED WARRANTY

ZEPHYRx is pleased to offer you, the original owner, the following Limited Warranty, which applies only to ZEPHYRx products that have been directly purchased by you or from our authorized dealers.

ZEPHYRx warrants that the product will be free from defects in material and workmanship for a period of twelve (12) months from delivery. This warranty is void and does not apply to products that have been subject to misuse, accident, tampering, modification, unauthorized repair, or any other use not in accordance with any instructional materials offered by ZEPHYRx.

Coverage

ZEPHYRx will, at its option, repair or replace the product covered by this warranty if it becomes defective, malfunctions or otherwise fails to conform with this warranty under normal use and service during the term of this warranty, without charge for labor or materials. Repairs may be performed using new or refurbished parts that meet or exceed ZEPHYRx specifications for new parts.

If ZEPHYRx elects to replace the product the replacement will provide as near as possible the same functionality. You will be responsible for shipping the product to our repair facility if the product(s) must be shipped for warranty service. However, ZEPHYRx will pay the return shipping charges if the repairs are covered by the warranty.

Warranty Exclusions

  • The supplied batteries are covered for 30 days.
  • The product is not covered under this warranty if its original identification (tamper tag, trade-mark, serial number) markings have been defaced, altered, or removed.
  • The product is not covered under this warranty if there is: 
  1. damage, deterioration or malfunction resulting from accident, alteration, negligence, misuse, abuse, improper installation or operation or failure to follow instructions according to the Owner’s Manual for this product. Specifically the product must have been used for its intended purpose. 
  2. damage during any shipment of the product to ZEPHYRx LLC (claims must be presented to the carrier)
  3. repair, alteration, or attempted repair by anyone other than ZEPHYRx or an authorized ZEPHYRx Service Center
  4. normal wear and any periodic maintenance;
  5. deterioration due to perspiration, saliva, corrosive atmosphere or other external causes such as extremes in temperature or humidity
  • Any evidence of alteration, erasing, or forgery of proof-of-purchase documents will cause this warranty to be void. This warranty covers only the Original Owner and is not transferable.
  • Owner assumes all responsibility for maintenance and cleaning of products sold.
  • Spirometers and mouthpieces are intended for single-person use. Unsealed or used mouthpieces, face masks, and nose clips are not covered under this warranty, and are non-refundable.

To Obtain Warranty Service

Prior to any return please contact ZEPHYRx to obtain a Return Merchandise Authorization (RMA) number by emailing orders@ZEPHYRx.com. You are responsible for all shipping costs of returning products to ZEPHYRx, whether under warranty or not. 

If purchased from a ZEPHYRx dealer, contact that dealer for warranty service. The dealer will advise you of the procedures to be followed. If this is not successful or if you purchased your ZEPHYRx directly from us, contact us at orders@ZEPHYRx.com. If you are uncertain as to whether a dealer has been authorized by ZEPHYRx, please contact ZEPHYRx’s Service Department at orders@ZEPHYRx.com, or check ZEPHYRx’s website at www.ZEPHYRx.com. Product(s) shipped for service should be packed securely and must be accompanied by a detailed explanation of the problem(s) requiring service, together with the RMA assigned to this return and the original or a machine reproduction of the bill of sale or other dated, proof-of-purchase document describing the product, as evidence of warranty coverage. Should any product submitted for warranty service be found ineligible therefore, an estimate of repair cost will be furnished and the repair will be accomplished only if requested by you and upon receipt of payment or acceptable arrangement for payment.

Disclaimer

Except for the express warranties set forth herein, ZEPHYRx, Inc. disclaims and makes no other warranty, either expressed or implied, including any implied warranty of merchantability or fitness for a particular purpose.

Limitation of Liability

In no event shall ZEPHYRx be liable for any direct damages or indirect, exemplary, consequential, incidental, punitive, or other special damages caused through the use or the inability to use our product.

Software End User License Agreement

NOTICE TO USER: THIS SOFTWARE END-USER LICENSE AGREEMENT (“AGREEMENT”) GOVERNS YOUR USE OF THE APPLICATION, SOFTWARE, THEIR ASSOCIATED UPGRADES, PATCHES, AND RELATED SERVICES (“SOFTWARE”) CURRENTLY PROVIDED BY OR TO BE PROVIDED BY ZEPHYRx.

PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY INSTALLING, USING, OR COPYING ALL OR ANY PORTION OF THE SOFTWARE (including ZEPHYRx mobile applications) YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. If you do not agree with this Agreement, please discontinue use of the ZEPHYRx software immediately.

1. Definitions

"ZEPHYRx" means ZEPHYRx LLC., a Delaware corporation headquartered at 2 Third Street, Suite 201, Troy, New York 12180.

"Computer" means a virtual or physical computing device including mobile phones and tablets that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.

"Software" means (a) all of the information with which this agreement is provided, including but not limited to: (i) ZEPHYRx™ mobile-application software and all other software files and other computer information; (ii) sample and stock photographs, images, sounds, clip art and other artistic works bundled with ZEPHYRx software and not obtained from ZEPHYRx through a separate service (unless otherwise noted within that service) or from another party through a separate service ("Content Files"); and (iii) related explanatory written materials and files ("Documentation"); and (b) any modified versions and copies of, and upgrades, updates and additions to, such information, provided to you by ZEPHYRx at any time, to the extent not provided under separate terms (collectively, "Updates").

2. Software License

Subject to the terms of this Agreement, ZEPHYRx grants you a limited, revocable, non-exclusive, non-transferable, and non-sublicensable license to install and use the Software in a manner consistent with its design and documentation. This Software is intended to allow for the instantaneous and secure transmission of data related to remote pulmonary function tests (PFTs) and breathing exercises. You acknowledge that any use of the Software not in compliance with this Agreement invalidates this license.

General Use. You may install and use one copy of the Software in accordance with the documentation with each mobile device you intend to use with ZEPHYRx products.

Documentation. You may make copies of the documentation for your own internal use in connection with use of the Software in accordance with this agreement but no more than the amount reasonably necessary. Any permitted copy of the documentation that you make must contain the same copyright and other proprietary notices that appear on or in the Documentation.

3. Restrictions and Requirements

Use Obligations. You agree that you will not use the Software other than as permitted by this agreement and that you will not use the Software in a manner inconsistent with its design or documentation.

No Modifications. You may not modify, port, adapt, translate, or otherwise create derivative works or improvements of, the Software.

No Reverse Engineering. You will not reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Software.  

No Transfer. You will not lease, distribute or provide to others, license, sell, or otherwise commercially exploit any of the Software, or authorize any portion of the Software to be copied onto another computer. 

Termination. ZEPHYRx may restrict or prohibit use of or access to the Software if ZEPHYRx reasonably suspects that any use or access of the Software is or may be in breach of this Agreement.

4. Intellectual Property Ownership

ZEPHYRx PERMITS YOU TO DOWNLOAD, INSTALL, USE, COPY, OR OTHERWISE BENEFIT FROM THE FUNCTIONALITY OR INTELLECTUAL PROPERTY OF THE SOFTWARE ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.

You acknowledge and agree that the Software is provided under license, and not sold. You may own the device on which the Software is used, but ZEPHYRx, and as applicable its licensors and suppliers, own all intellectual property and other rights in and to the Software and related documentation. The structure, organization, and source code of the Software are the valuable trade secrets and confidential information of ZEPHYRx and its suppliers, and are protected by law, including but not limited to the copyright laws of the United States and other countries, and by international treaty provisions.  

Unless explicitly stated herein, nothing in this Agreement will be construed as conferring any right or license to such rights, whether by estoppel, implication or otherwise, and you understand and acknowledge that you have no ownership interest in the Software or any derivatives, modifications, upgrades, updates, new versions, fixes, improvements or enhancements thereof or thereto. You hereby assign to ZEPHYRx any rights, title and interest, including all intellectual property rights, in any feedback, derivative works, modifications, enhancements, or improvements related to the Software and related documentation. 

5. Personal Information

Collection and Use of Information. You acknowledge that when you download, install, or use the Software, ZEPHYRx may collect, use, and store information relating to your use of the Software. You also may be required to provide certain information about yourself as a condition to using the Software or certain features or functionality, and the Software may provide you with opportunities to consent to share information about yourself with your healthcare provider, ZEPHYRx, or others (collectively, any personal information processed by the Software on your behalf shall be referred to as your “Personal Information”). All Personal Information we collect through this Software is governed by the ZEPHYRx Privacy Policy. You acknowledge that you are solely responsible for the content, accuracy, completeness, quality, and integrity of any Personal Information and other data provided by you in accordance with your use of the Software.

Disclosure and Use of Personal Information in De-identified Form. If you consent to sharing information, ZEPHYRx may de-identify or anonymize the Personal Information (i.e., remove all information that could be used to specifically identify you to create “De-Identified Data”) provided to us through your use of the Software, and use that De-Identified Data in aggregate or non-aggregate forms for research studies, evaluation of the Software and services, quality improvement purposes, or for any other lawful commercial purpose. ZEPHYRx’s use and disclosure of any Personal Information and De-Identified Data in aggregated or non-aggregated forms will be conducted in compliance with all applicable laws and regulations. By consenting to share your Personal Information, you also consent to such disclosures and uses of De-Identified Data by ZEPHYRx. 

Privacy Policy and Related Agreements. You acknowledge that you have read, understand, and agree to the ZEPHYRx Privacy Policy. This Privacy Policy and any other agreements executed between you and ZEPHYRx are hereby incorporated by reference.

6. Limited Warranty

ZEPHYRx warrants to the individual or entity that first purchases a license for the Software for use pursuant to the terms of this agreement that the Software will perform substantially in accordance with the documentation for the ninety (90) day period following receipt of the Software when used on the recommended operating system and hardware configuration. All warranty claims must be made, along with proof of purchase, to ZEPHYRx within such ninety (90) day period. If the Software does not perform substantially in accordance with the documentation, the entire liability of ZEPHYRx and its affiliates and your exclusive remedy will be limited to either, at ZEPHYRx's option, replacement of the Software or refund of the license fee you paid for the Software (if any).

7. Disclaimer

EXCEPT FOR THE EXPRESS WARRANTY ABOVE AND ONLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ZEPHYRx, ITS AFFILIATES, AND SUPPLIERS DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE AS TO ANY MATTER, INCLUDING BUT NOT LIMITED TO PERFORMANCE, SECURITY, NON-INFRINGEMENT, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. OTHER THAN SUCH OFFERED AND STATUTORY WARRANTIES AND REMEDIES, ZEPHYRx, ITS AFFILIATES, AND SUPPLIERS PROVIDE THE SOFTWARE AND ACCESS TO ANY WEBSITES, AND ZEPHYRx OR THIRD-PARTY ONLINE SERVICES AS-IS AND WITH ALL FAULTS.

8. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL ZEPHYRx OR ITS AFFILIATES, OR ANY OF ITS SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY, FOR ANY LOSS, DAMAGES, CLAIMS, OR COSTS WHATSOEVER INCLUDING ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM DELAYS, LOSS OR CORRUPTION OF DATA, BREACHES IN SYSTEM SECURITY, BUSINESS INTERRUPTION, PERSONAL INJURY, OR FAILURE TO MEET ANY DUTY OF CARE, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE), AND  EVEN IF AN ZEPHYRx REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS, OR COSTS.  

IN ANY EVENT, ZEPHYRx’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, OR ANY OF ITS SUPPLIERS, UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT.  

THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. THIS LIMITATION OF LIABILITY MAY NOT BE VALID IN SOME JURISDICTIONS. YOU MAY HAVE RIGHTS THAT CANNOT BE WAIVED UNDER CONSUMER PROTECTION AND OTHER LAWS. ZEPHYRx DOES NOT SEEK TO LIMIT YOUR WARRANTY OR REMEDIES TO ANY EXTENT NOT PERMITTED BY LAW.

The provisions of Sections 8, 9, and 10 will survive the termination of this agreement, however caused, but this will not imply or create any continued right to use the Software after termination of this agreement.

9. Medical Advice

ZEPHYRx does not provide medical advice, diagnosis, or treatment. You acknowledge that the Software is merely a conduit of information to aid in the provision of healthcare by independent third-party healthcare providers. You acknowledge and agree that your healthcare providers are solely responsible for and will have complete authority, responsibility, and control over the provision of all medical services, advice, treatment decisions, and other professional health care services performed.  

The Software is not intended to be used, nor should it be used for emergency purposes. Delay, interruption, or failure may occur in communication through use of the Software. ZEPHYRx is not liable for any damages resulting from such delay or failure, for whatever reason, and you expressly assume such risk through your use of the Software.

10.  Export Rules

You acknowledge that the Software is subject to the U.S. Export Administration Regulations and other export laws, restrictions, and regulations (collectively, the "Export Laws") and that you will comply with the Export Laws. You will not ship, transfer, export, or re-export the Software, directly or indirectly, to:

  • (a) any countries that are subject to US export restrictions (currently including, but not necessarily limited to, Cuba, Iran, North Korea, Sudan, and Syria) (each, an "Embargoed Country"), 
  • (b) any end user who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems (each, a "Prohibited Use"), or (c) any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government (each, a "Sanctioned Party"), in addition, you are responsible for complying with any local laws in your jurisdiction which may impact your right to import, export or use the Software. You represent and warrant that 
                 (i) you are not a citizen of, or located within, an Embargoed Country,
                (ii) will not use the Software for a Prohibited Use, and 
                (iii) are not a Sanctioned Party. All rights to use the Software are granted on condition that such rights are forfeited if              you fail to comply with the terms of this agreement.

11. Term & Termination

The Agreement is effective from the earlier of the date you purchase, download, or use the Software, until terminated according to its terms. You and ZEPHYRx may terminate this Agreement, at any time, for any reason. Termination by ZEPHYRx will be effective upon (a) notice to you or (b) at the time of ZEPHYRx’s decision to discontinue offering and/or supporting the Software. This Agreement will terminate automatically if you fail to comply with any of the terms and conditions of this Agreement. Upon termination for any reason, you must immediately uninstall the Software and destroy all copies of the Software in your possession.

12. General Provisions

Governing Law. If you are a consumer who uses the Software for only personal non-business purposes, then this agreement will be governed by the laws of the state in which you purchased the license to use the Software. If you are not such a consumer, this agreement will be governed by and construed in accordance with the substantive laws in force in the State of New York, United States. The courts located in Albany County, New York shall have non-exclusive jurisdiction over all disputes relating to this agreement.

Severability. If any part of this agreement is found void and unenforceable, it will not affect the validity of the balance of this agreement, which will remain valid and enforceable according to its terms. This agreement may only be modified in writing, signed by an authorized officer of ZEPHYRx. This is the entire agreement between ZEPHYRx and you relating to the Software and it supersedes any prior representations, discussions, undertakings, communications, or advertising relating to the Software.

Changes to this Agreement. ZEPHYRx reserves the right, in its sole discretion, to revise, update, change, or modify, certain terms of this Agreement for any reason. You can review the most current version of this Agreement on zephyrx.com. You are responsible for checking this Agreement periodically for changes. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in agreement or compliance with this Agreement, you may terminate this Agreement in accordance with Section 10 and must immediately uninstall the Software and destroy all copies. Your continued use of the Software following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes.