AERO GLASS, INC.
TERMS OF SALE
Last Updated: April 4, 2017
1. SCOPE & APPLICATION
We, Aero Glass, Inc., a Delaware corporation (collectively, with our parents, affiliates, subsidiaries and related companies, including Aero Glass Kft, “Aero Glass,” “Seller,” “We,” “Us” or “Our”) offer state-of-the-art Aero Glass Products including downloadable and integrated software (collectively “Software”) and hardware (“Hardware”).
THESE TERMS OF SALE APPLY TO ALL PRE-ORDERS, OFFERS, SALES AND PURCHASES OF AERO GLASS PRODUCTS (THE “PRODUCTS”) SOLD THROUGH OUR AERO GLASS WEBSITE (“SITE”). WE RESERVE THE RIGHT TO AMEND OR UPDATE THESE TERMS AT ANY TIME BY POSTING SUCH AMENDED OR UPDATED TERMS ON OUR SITE, AND INFORMING YOU VIA REASONABLE MEANS; YOUR CONTINUED USE OF THE AERO GLASS WEBSITE OR PURCHASE OF PRODUCTS AFTER THE POSTED CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF AND AGREEMENT TO SUCH CHANGES.
THESE TERMS OF SALE CONTAIN A MANDATORY AND BINDING CUSTOMER ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON A CUSTOMER BASIS, TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
Our Products are available for purchase worldwide.
You may only buy our Products if are 18 years of age or older, are capable of forming a legally binding agreement and are not otherwise barred from buying such Products.
3. PURCHASES ARE FINAL
ONCE CONFIRMED, ALL PURCHASES ARE FINAL, NON-CANCELABLE AND NON-REFUNDABLE, EXCEPT AS SPECIFIED IN THE APPLICABLE CANCELLATION POLICY AND EXCHANGE POLICY SET FORTH BELOW.
4. OFFER, ACKNOWLEDGMENT AND ACCEPTANCE; CANCELLATION POLICY
4.2 Any prices, quotations and descriptions made or referred to on our Site with respect to the Products are subject to availability, may be withdrawn or revised at any time at our discretion prior to our express acceptance of your pre-order or order (as described below). When you have placed a pre-order or order for Products, we will honor the price associated therewith subject to availability.
4.3 While we make every effort to ensure that Products appearing on our Site are available, we cannot guarantee that Products are in stock, immediately available, or available for distribution or delivery in all parts of the Territory when you submit your pre-order or order. We may reject your pre-order or order, without liability, if we are unable to process or fulfill it for any reason. If this is the case, we will refund any prior payment that you have made for that item if any such payment has been made.
4.4 A pre-order or order submitted by you constitutes an offer by you to Aero Glass to purchase the Products in accordance with this Terms of Sale and is subject to our subsequent acceptance.
4.5 Our acceptance of your pre-order or order takes effect and a contract of sale is concluded at the point where such offer is expressly accepted by us, evidenced by Aero Glass dispatching your order and accepting your credit card or other payment (“Acceptance”).
4.6 Prior to such Acceptance, an automatic e-mail acknowledgement of your order may be generated. Please note that any such automatic acknowledgement does not constitute a formal Acceptance of your pre-order or order.
4.7 Your placement of a pre-order does not create a contract for sale for our Products not offered for sale by Aero Glass. By placing a pre-order for Products that are not yet available for sale, you make an offer to Aero Glass to purchase the Products subject to these Terms of Sale. Upon the placement of a pre-order, our payment processing partners will obtain an authorization from your bank or payment card company, which will not result in any charge to you. An authorization from your bank or payment card company may stay open for several days or weeks before a charge is actually made upon our Acceptance of your offer to purchase Aero Glass Products. Subject to Section 4.8, you may cancel your offer to purchase the Products at any time prior to shipment, and you will not be charged if you do so. When the Products are offered for sale, Aero Glass may accept your offer to purchase Products subject to these Terms of Sale. At that time, our payment processing partners will capture payment on the payment method you provided and upon intimation from our payment processing partners about the successful transmittal of monies, we will subsequently ship you the Products. Our payment processing partners may obtain additional authorization from your payment card company to confirm necessary funds are available to purchase the Products requested.
4.8 Cancellation Policy. After Acceptance, you may not modify or cancel your pre-order or order without our prior written consent; provided, however: (a) we may cancel your order at any time after Acceptance and prior to shipment for any reason in our sole discretion, including but not limited to (i) our inability to process or fulfill the order; (ii) you are in a country where Products cannot be purchased or shipped; and (iii) your order does not comply with any applicable Terms of Sale, and in such event, we will authorize our payment processing partners to issue you a credit or refund for any amounts already paid; and (b) for any pre-orders of the Products (as specifically identified on the Aero Glass Sites), you are permitted to cancel your pre-order up until such time as the Products have been shipped by emailing firstname.lastname@example.org with your cancellation request.
5. PRICE AND TERMS OF PAYMENT
5.1 Prices payable for the Products may be indicated on our Site or, an acknowledgement, but the authoritative price – in the event of any discrepancy – is the price we give to you on our Acceptance. We are not responsible for pricing, typographical or other errors in any offer by us, and we reserve the right to cancel any orders arising from such errors.
5.2 We have the right at any time prior to our Acceptance to withdraw any discount and/or to revise prices to take into account increases in costs, including (without limitation) costs of any materials, carriage, labor or the increase or imposition of any tax, duty or other levy and any variation in exchange rates. We also reserve the right to notify you of any mistakes in the descriptions of the Products or errors in pricing prior to dispatching Products. In such event, if you choose to continue with fulfillment of the order, you acknowledge that the Products will be provided in accordance with such revised description or corrected price.
5.3 Unless otherwise specified, prices quoted are exclusive of: (a) the costs of shipping or carriage to the agreed place of delivery within the Territory (charges for which are stated on our Site); and (b) VAT and any other tax or duty which (where applicable) must be added to the price payable. You agree to pay for taxes, shipping or carriage of the Products as such costs are specified by us on our Site when you submit your order.
5.5 By submitting an order or pre-order to Aero Glass, you authorize Aero Glass to authorize our payment processing partners to charge your order to the payment method provided. You represent and warrant that: (i) the payment method information you provide to our payment processing partners is true, correct, and complete, (ii) you are duly authorized to use such payment method for purchase, (iii) charges incurred by you will be honored by your payment method provider, (iv) you will pay the charges incurred by you at the posted prices, including all applicable taxes and shipping costs, if any; and (v) if any details related to your payment method change while you are waiting for our acknowledgment, you will duly update that information with the updated payment information. Additional terms and conditions of your payment method provider may apply to your purchase. Our payment processing partners will charge the payment method you provided upon Acceptance and prior to shipment of the Products. We reserve the right to verify credit or debit card payments, via our payment processing partners, prior to Acceptance. We may cancel or suspend your order if our payment processing partners determine that the payment method cannot be verified, is invalid, or is otherwise not acceptable. You are responsible for resolving any payment problems.
6. DELIVERY AND RISK
6.1 Delivery timelines/dates specified on our Site, in any order acknowledgement, Acceptance or elsewhere are estimates only. While we will endeavor to meet such timelines or dates, we do not undertake, promise or warrant to dispatch Products by a particular date or dates and will not be liable to you in respect of delays or failure to do so.
6.2 Delivery will be to a valid address within the Territory submitted by you (“Delivery Address”), and subject to Acceptance. You must check the Delivery Address on any acknowledgement or Acceptance we provide and notify us without delay of errors or omissions at email@example.com. We reserve the right to charge you for any extra costs arising from changes you make to the Delivery Address after you submit an order.
6.3 Except to the extent required as a result of any mandatory rights you have as a consumer under applicable law, you will not be entitled to reject Products in whole or in part by reason of short delivery and will pay in full notwithstanding short delivery or non-delivery unless you notify us in writing of any claim within 5 days of the latest of the date of receipt of the relevant invoice or delivery whereupon you will pay for the quantity actually delivered. Such notifications can be sent to firstname.lastname@example.org.
6.4 Except as otherwise provided in these Terms of Sale, risk of loss or damage to Products passes to you upon delivery, or when Products are placed in your possession or that of any carrier or transport provided by you, whichever occurs first.
7. REJECTION, DAMAGE, OR LOSS IN TRANSIT; EXCHANGE POLICY
7.1 Except as set out as part of the “Exchange Policy” below, and subject to any rights you have under applicable law that cannot be excluded or limited by these Terms:
7.1.1 We will not be liable and you will not be entitled to reject Products, except for: (a) damage to or loss of Products or any part thereof in transit (where the Products are carried by our own transport or by a carrier on our behalf) where notified to us within 5 business days of receipt of Products (the foregoing constitutes our “Exchange Policy”) in accordance with the Exchange Policy procedures set forth in Section 7.2 below;
7.1.2 We will not be liable for any damage or losses arising from: (a) defective installation or use of Products; (b) the use of Products in connection with other defective, unsuitable or defectively installed equipment; or (c) your negligence, improper use or use in any manner inconsistent with our or any other manufacturer’s specifications or instructions.
7.1.3 Where these is a shortage or failure to deliver, or any damage to Products, we may, in our sole discretion, and at our option: (a) in the case of Products shortage or non-delivery, make good on any such shortage or non-delivery; and/or (b) in the case of damage to Products and in accordance with the Exchange Policy, replace, exchange or repair the Products upon you returning the Products in accordance with the Exchange Policy procedures set forth below.
7.2 Exchange Policy Procedures. If the event of damage to the Products meeting the terms and conditions of the Exchange Policy, you should email email@example.com within 5 business days of receipt of the Products, and you will arrange for delivery and return of the damaged Products (which must include all original packaging, hardware, accessories materials, and documentation) at your sole expense. You bear the risk of loss during shipment. Upon receipt by us of the returned Products (including all original packaging, hardware, accessories materials, and documentation), and verification of the damage, we will ship out to you a replacement Products, or repaired Products, in our sole discretion, as soon as reasonably possible.
7.3 Exchange Policy Limitations. Your rights of repair or replacement of Products or any part or parts thereof as part of the Exchange Policy will in all cases be negated or rendered void where: (a) Products has been modified or altered by persons other than us or any authorized dealer; (b) the Products has not been returned together with full details in writing of the alleged damage in accordance with the Exchange Policy; and/or (c) the damage to the Products is due (wholly or partially) to mistreatment, improper use or storage or maintenance or installation, or failure to observe any instructions or other directions issued or made available by us in connection with the delivered Products.
You accept and acknowledge that Aero Glass is not selling you the Software and is only licensing the Software to you as per this Section. Aero Glass grants you a limited, revocable, non-exclusive, non-transferable license to use the Software for its intended purpose (the “License”). You agree not to reverse engineer, compile, de-compile, modify, copy or otherwise discern all or any portion of the Software.
You agree that this License does not include (i) any right to authorize third party use of the Software or its contents; (ii) any collection and use of any information, descriptions, or any derivative use of the Software or its contents; or (iii) any downloading or copying of Account Information; or any use of data mining, robots, or similar data gathering and extraction tools. You agree that Software may not be reproduced, sold, resold, visited or otherwise exploited for any commercial purpose without Aero Glass’s express written consent.
This License shall automatically terminate if you violate any of these restrictions and may be terminated by Aero Glass at any time.
Aero Glass also grants you permission to temporarily download one copy of the materials (information or Software) on its Platform for personal, non-commercial, transitory viewing only. This is the grant of a use license to use (“Use License”), not a transfer of title, and under this Use License you may not modify or copy the materials; use the materials for any commercial purpose, or for any public display (commercial or non-commercial); remove any copyright or other proprietary notations from the materials; or transfer the materials to another person or “mirror” the materials on any other server.
This Use License shall automatically terminate if you violate any of these restrictions and may be terminated by Aero Glass at any time. Upon terminating your viewing of these materials or upon the termination of this Use License, you must destroy any downloaded materials in your possession whether in electronic or printed format.
9. LIABILITY LIMITATION
9.1 TO THE MAXIMUM EXTENT LEGALLY PERMITTED, WHETHER OR NOT WE WERE AWARE OR ADVISED OF THE POSSIBILITY OF DAMAGES, AND WHETHER OR NOT THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE: (A) OUR AGGREGATE LIABILITY (WHETHER FOR BREACH OF CONTRACT, TORT OR UNDER ANY OTHER LEGAL THEORY) WILL IN NO CIRCUMSTANCES EXCEED THE COST OF PRODUCTS YOU ORDERED WHICH ARE RELATED TO OR GIVE RISE TO YOUR CLAIMS; AND (B) IN NO EVENT WILL WE BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST REVENUE, OR COST OF COVER.
SOME JURISDICTIONS DO NO ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
10. PRODUCTS SPECIFICATIONS; DISCLAIMER OF WARRANTIES
10.1 All Products specifications, illustrations, drawings, images, particulars, dimensions, performance data and other information on our Site or made available by us are intended to represent no more than a general illustration of Products and their features and do not constitute a warranty or representation by us that Products will conform with the same. Products that are shipped to you may vary from these images or specifications.
10.2 PRODUCTS ARE PROVIDED WITHOUT ANY WARRANTIES OR SUPPORT OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND NO OTHER REPRESENTATIONS OR CLAIMS OF ANY KIND WILL BE BINDING ON OR OBLIGATE US. PRODUCTS ARE EXPRESSLY PROVIDED TO YOU “AS IS.” WE DO NOT AND WILL NOT PROVIDE ANY TECHNICAL OR CUSTOMER SUPPORT FOR PRODUCTS WHATSOEVER. IF ANY TECHNICAL SUPPORT OR ASSISTANCE IS PROVIDED WITH RESPECT TO PRODUCTS AND THE USE THEREOF, IT IS PROVIDED “AS IS”, WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED. WE DO NOT WARRANT THAT THE USE OR OPERATION OF PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. YOU BEAR ALL RISKS RELATING TO THE USE OF PRODUCTS AND THE QUALITY AND PERFORMANCE OF PRODUCTS AND ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION EXCEPT AS EXPRESSLY SET FORTH AS PART OF THE EXCHANGE POLICY. THESE TERMS STATE YOUR SOLE AND EXCLUSIVE REMEDIES.
SOME JURISDICTIONS DO NOT ALLOW FOR THE DISCLAIMER OR LIMITATION OF WARRANTIES, SO THE ABOVE DISCLAIMER OR LIMITATION MAY NOT APPLY TO YOU.
11. CONSENTS, CUSTOMS DUTIES & EXPORT
11.1 If any license or consent of any government or other authority is required for the acquisition, carriage or use of Products by you in any part of the Territory, you will obtain such license or consent at your own expense and if necessary produce evidence to us on demand. Any additional expenses or charges incurred by us resulting from such failure will be met by you.
11.2 Products licensed or sold to you under these Terms of Sale may be subject to export control laws and regulations in the Territory or other relevant jurisdiction where you take delivery or use Products. You may not use or otherwise export or re-export the Products except as authorized by United States law and the laws of the jurisdiction in which the Products were obtained. In particular, but without limitation, Products may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By purchasing Products, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these Products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
11.3 Items entering the European Economic Area (EEA) from outside over a certain value may be subject to customs charges (e.g., where costs are in excess of your personal import allowance). You may be subject to customs charges, import duties and taxes, levied when Products reach your specified destination. Any such additional charges for customs clearance or import duties or taxes must be met by you, since we have no control over what these charges are. You should contact the local customs office in the relevant jurisdiction for further information on customs policies or duties.
12. GOVERNING LAW AND JURISDICTION
All matters relating to Products and these Terms of Sale and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule, whether of the State of California or any other jurisdiction. A printed version of these Terms of Sale will be admissible in judicial and administrative proceedings based upon or relating to these Terms of Sale to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
13. DISPUTE RESOLUTION PROCESS AND ARBITRATION
For any Dispute with Aero Glass, you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute with us informally, including by scheduling phone calls and meetings with us. In the unlikely event that Aero Glass has not been able to resolve a dispute it has with you after 90 days, We each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief) arising out of or in connection with or relating to these Terms of Sale, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879. The arbitration will be conducted in San Diego, California unless you and Aero Glass agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. This transaction and the arbitration shall be governed by the Federal Arbitration Act 9 U.S.C. Sec. 1-16 (FAA).
Nothing in this Section shall be deemed as preventing Aero Glass from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of Our data security, intellectual property rights or other proprietary rights.
14. CLASS ACTION/JURY TRIAL WAIVER
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED PRODUCTS FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ CUSTOMER CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU, AND YOUR REPRESENTATIVES, AGREE THAT, BY ENTERING INTO THESE TERMS, YOU, AND YOUR REPRESENTATIVES AND AERO GLASS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
15. 1 We will not be liable to you nor held in breach of contract for any loss or damage which may be suffered as a direct or indirect result of us being prevented, hindered or delayed in the performance by reason of any circumstances beyond our reasonable control including (but not limited to) any act of God, war, riot, civil commotion, government action, explosion, fire, flood, storm, accident, strike, lock-out, trade dispute or labor disturbance, breakdown of plant or machinery, interruption in the supply of power or materials and in such event we may elect to cancel your order and refund any payments made.
15.3 To the fullest extent permitted under applicable law, we reserve the right to modify these Terms upon prior written notice to you with effect for the future – subject to your right to reject, by way of written notice, our modifications to these Terms with respect to any orders for which Acceptance, but not yet fulfillment, has occurred.
15.4 No waiver of any term or condition of these Terms of Sale will be effective unless made in writing and signed by us. The waiver of any breach of any Terms will not be construed as a waiver of any subsequent breach or condition.
PLEASE NOTE THAT, EXCEPT AS SET FORTH HEREIN, ALL SALES ARE BINDING AND FINAL AND NO REFUNDS SHALL BE MADE.