Emagispace® Terms Of Sale
I. Emagispace, Inc., STANDARD TERMS AND CONDITIONS
1. Price / Sales Tax.
The prices shown are F.O.B. origin. Customer shall pay all shipping, insurance, license fees and similar charges which shall be added to purchase prices. Title and risk of loss transfer upon tender of shipment to the carrier, and Customer bears all risk of loss in transit. COD shipments are not permitted. Prices are exclusive of federal, state and local sales, use, excise, and similar taxes. Customer is responsible for payment of all applicable taxes, or for providing a valid sales tax exemption certificate. When placing an order, customer shall indicate whether the products are tax exempt.
Emagispace, Inc. accepts cash, checks, money orders, Visa, MasterCard, American Express and PayPal.
3. Cancellations / Returns.
Accepted orders cannot be cancelled and products cannot be returned without Emagispace, Inc.’s written agreement, which may be withheld in Emagispace, Inc.’s sole and absolute discretion. On any authorized returns, a 20% restocking charge will be charged. Customer shall be responsible to return products in good, re-sellable condition.
4. Risk of Loss.
Risk of loss or damage to the product shall pass to Customer upon tender of the shipment to the carrier (regardless of whether payment has been made). Confiscation or destruction of, or damage to, the products following shipment shall not affect Customer’s obligation to pay the full purchase price. Customer shall inspect the product upon receipt and must notify Emagispace, Inc. within 24 hours in writing following delivery when there is evidence of shipping damage.
5. Product Warranty Policy
a. Limited Warranty
Emagispace, INC. warrants products against defects in materials and workmanship under normal use for a period of one (1) year after the date of purchase from Emagispace, Inc., unless otherwise stated. Provided that Emagispace, Inc. accepts the products for return during the limited warranty period, Emagispace, Inc. may, at its option: (i) repair; or (iii) refund the amount paid by customer. Customer must return the product of the appropriate Emagispace, Inc. authorized service location, as designated by Emagispace, Inc., shipping costs prepaid. Emagispace, Inc.’s repair, replacement, or refund of amounts paid by customer for the product, shall be customer’s sole and exclusive remedy
b. Warranty Disclaimer And Limitations Of Liability
Except as set forth in the limited warranty statement made above, no warranty or affirmation of fact or description, express or implied, is made or authorized by Emagispace, Inc.. Emagispace, Inc. Disclaims any express or implied warranties, including warranties of merchantability, fitness for a particular purpose or non infringement of intellectual property rights. Emagispace, Inc. Also disclaims any liability for claims arising out of product misuse, improper product selection, improper installation, product modification, misrepair or misapplication. Emagispace, Inc. Shall not in any event be liable for any damages, whether based on contract, warranty, negligence, strict liability or otherwise, and hereby expressly disclaims any liability for consequential, incidental, special, exemplary, or punitive damages to the extent permissible, even if Emagispace, Inc. Has been apprised of the possibility of same. Emagispace, Inc.’s liability in all events is limited to the purchase price paid for the product that gives rise to any liability.
6. Warranty Product Return; Voiding Limited Warranty.
Before returning any product during the one-year limited warranty period, Customer shall notify Emagispace, Inc. of the desired return by: (i) writing or calling the Emagispace, Inc. office from which the product was purchased; or (ii) in the case of an internet order, contact Emagispace, Inc. by logging on to www.Emagispace.com, and clicking on the appropriate “Returns” link to then provide the date, the original invoice number, the Contract number, and a description of the defect. Proof of purchase is required in all cases. At Emagispace, Inc.’s sole discretion, it will repair or replace the product at no charge during the limited warranty period following an inspection of the product. The limited warranty does not cover normal wear and tear of the product. In addition, improprieties including but not limited to abuse, misapplication, negligence, misuse or failure to install, maintain or adjust the product properly, will void the limited warranty. The limited warranty is also voided if unauthorized parts, hardware or equipment are installed to any product, or if modifications are made to the product without prior written authorization from Emagispace, Inc.. Emagispace, Inc. reserves the right to change, at any time, the material, design or specifications of its products, or to add improvements, and in all such events any replacement of a returned product shall be with the most similar present product distributed by Emagispace, Inc.
7. Product Compliance and Suitability.
Jurisdictions have varying laws, codes and regulations governing construction, installation, and/or use of products for a particular purpose. Emagispace, Inc. does not guarantee compliance or suitability of the products it sells with any laws, codes or regulations, nor does Emagispace, Inc. accept responsibility for construction, installation and/or use of a product. It is Customer’s responsibility to review the product’s application and all applicable laws, codes and regulations for each relevant jurisdiction to be sure that the construction, installation, and/or use involving the products are compliant.
8. Intellectual Property.
Customer shall have no right, title, or interest in the trade names, trademarks, trade dress, copyrights, patents, domain names, product names, catalogs or any other intellectual property rights (“IP”) reserved by Emagispace, Inc., or any IP owned by manufacturers and/or suppliers to Emagispace, Inc.. All materials contained in Emagispace, Inc. on its web site or on any catalogs, brochures or other written materials are subject to the ownership rights of Emagispace, Inc. and its manufacturers and/or suppliers. Customer shall have no right to copy or use any IP of Emagispace, Inc. or its manufacturers and/or suppliers without Emagispace, Inc.’s permission.
Customer shall defend, indemnify and hold Emagispace, Inc. harmless from (a) any damage, injury or claim arising from or in connection with any use of the products that is due to any fault or neglect of Customer, Customer’s employees, agents and licensees, or any person not a party hereto, or (b) Customer’s breach of this agreement.
10. Force Majeure.
Emagispace, Inc. shall not be liable for any delay in, or impairment of, performance resulting in whole or in part from any force majeure event, including but not limited to acts of God, labor disruptions, acts of war, acts of terrorism (whether actual or threatened), governmental decrees or controls, insurrections, epidemics, quarantines, shortages, communication or power failures, fires, accidents, explosions, inability to procure or ship product or obtain permits and licenses, inability to procure supplies or raw materials, severe weather conditions, catastrophic events, or any other circumstance or cause beyond the reasonable control of Emagispace, Inc. in the conduct of its business.
Customer shall not assign any order, or any interest therein, without the prior written consent of Emagispace, Inc. Any actual or attempted assignment without Emagispace, Inc.’s prior written consent shall entitle Emagispace, Inc. to cancel such order upon notice to customer.
12. No Third Party Benefit.
The provisions stated herein are for the sole benefit of the parties hereto, and confer no rights, benefits or claims upon any person or entity not a party hereto.
13. Dispute Resolution.
Any dispute or claim relating in any way to the products or this agreement will be resolved by binding arbitration, rather than in court, except that Customer may assert claims in small claims court if those claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these terms and conditions as a court would. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. Emagispace, Inc. will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the Customer’s claims are frivolous. Customer may choose to have the arbitration conducted by telephone, based on written submissions, or in conducted by in-person hearing in Douglas County, Colorado. The parties agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration the parties each waive any right to a jury trial, and agree that any such proceeding shall be conducted in a state court in Douglas County, Colorado or in the United States District Court for the District of Colorado located in Colorado Springs, Colorado.
14. Waiver, Choice of Law.
The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent non-performance of any such term or condition by the other party. The parties agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of Colorado, without regard to principles of conflict of laws, will govern these terms and conditions and any dispute of any sort that might arise between the parties.
If any portion of these terms and conditions is found to be invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable term shall be severed from these terms and conditions, and the remaining terms and conditions shall be valid and fully enforceable as written.
16. Acceptance of Terms; No Modification of Terms.
Emagispace, Inc.’s acceptance and fulfillment of any order is subject to Customer’s assent to all of the terms and conditions set forth herein. Customer’s assent to these terms and conditions shall be indicated by signature on the attached Invoice, but if no such signature is made, assent to these terms and conditions shall be presumed from Customer’s acceptance of all or any part of the products ordered. No additions or modifications of Emagispace, Inc.’s terms and conditions by customer shall be binding upon Emagispace, Inc., unless agreed to in writing by an authorized representative of Emagispace, Inc.. If a purchase order or other correspondence submitted by customer contains terms or conditions contrary or in addition to the terms and conditions contained herein, Emagispace, Inc.’s fulfillment of any such purchase order shall not be construed as assent to any of the terms and conditions proposed by customer, and will not constitute a waiver by Emagispace, Inc. of any of the terms and conditions contained herein.
Customer grants to Emagispace and its affiliates (and their respective successors, assigns, licensees, employees and agents) (collectively “Emagispace”) the right to reproduce or otherwise use Customer’s name, quotes, endorsements, trademarks, service marks, trade names, and/or logos, in and in connection with Emagispace’s publicity, marketing, sales and promotional materials, in perpetuity throughout the world, and in any medium now known or hereafter devised (including, without limitation, Emagispace’s website, brochures, mailers, press releases, printed and electronic advertisements and presentations), in each case, solely for the purpose of designating Customer as a client of Emagispace.
18. Complete Agreement.
The Invoice between Emagispace, Inc. and Customer and these Attached terms and conditions constitute the entire and exclusive agreement between customer and Emagispace, Inc.. No other promises, representations, covenant, warranties or promises have been made between the parties except as set forth in this agreement.