THESE TERMS OF SALE (THESE "TERMS") APPLY TO ALL OFFERS, SALES AND PURCHASES OF THE DARMA SMART SEAT CUSHION AND/OR RELATED DARMA PRODUCTS (COLLECTIVELY THE “PRODUCT”) SOLD THROUGH THE DARMA WEBSITE (THE OR THIS "SITE"). WE RESERVE THE RIGHT TO AMEND OR UPDATE THESE TERMS AT ANY TIME BY POSTING SUCH AMENDED OR UPDATED TERMS ON THE SITE. REFERENCES TO (A) "US", "WE" OR "OUR" BEING CONSTRUED TO MEAN DARMA, INC. AND ITS AFFILIATES, AND (B) "YOU" OR "YOUR" BEING CONSTRUED TO MEAN THE PURCHASER OF THE PRODUCT THROUGH THE SITE.
ALL PURCHASES ARE FINAL, NON-CANCELABLE AND NON-REFUNDABLE, EXCEPT AS SPECIFIED IN THE APPLICABLE CANCELLATION POLICY AND REFUND AND EXCHANGE POLICIES SET FORTH BELOW.
3.1 Any prices, quotations and descriptions made or referred to on this Site with respect to the Product are subject to availability, do not constitute an offer and may be withdrawn or revised at any time prior to our express acceptance of your order (as described below).
3.2 While we make every effort to ensure that items appearing on the Site are available, we cannot guarantee that all items are in stock, immediately available, or available for distribution or delivery in all parts of the Territory (as defined below) when you submit your order. We may reject your 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.
3.3 An order submitted by you constitutes an offer by you to us to purchase the Product on these Terms and is subject to our subsequent acceptance.
3.4 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 order.
3.5 Our acceptance of your order takes effect and the contract concluded at the point where such offer is expressly accepted by us dispatching your order and accepting your credit card or other payment ("Acceptance").
3.6 After Acceptance, you may not modify or cancel your 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, and in such event, we will issue you a credit or refund; and (b) for any “Buy Nows” of the Product (as specifically identified on the Site), you are permitted to cancel your Buy Now up until such time as the Product has been shipped (the foregoing collectively constitutes our “Cancellation Policy”).
4.1 Prices payable for the Product are those in effect at the time of dispatch or delivery, unless otherwise expressly agreed. Prices may be indicated on this Site or an order acknowledgement but the authoritative price in the event of any discrepancy, is the price that is notified to you on our Acceptance.
4.2 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 Product descriptions or errors in pricing prior to product dispatch. In such event if you choose to continue with fulfillment of the order, you acknowledge that the Product will be provided in accordance with such revised description or corrected price.
4.3 The places that we deliver the Product are listed on the Site ("Territory").
4.4 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 the 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 Product as such costs are specified by us on the Site when you submit your order.
4.5 Payment shall be made prior to delivery and by such methods as are indicated on the Site (and not by any other means unless we have given our prior agreement).
4.6 We will charge credit or debit cards upon Acceptance and prior to shipment of the Product. We reserve the right to verify credit or debit card payments prior to Acceptance.
5.1 Delivery timescales/dates specified on the Site, in any order acknowledgement, Acceptance or elsewhere are estimates only. While we endeavor to meet such timescales or dates, we do not undertake to dispatch the Product by a particular date or dates and shall not be liable to you in respect of delays or failure to do so.
5.2 Delivery shall be to a valid address within the Territory submitted by you and subject to Acceptance ("Delivery Address"). You must check the Delivery Address on any acknowledgement or Acceptance we provide and notify us without delay of errors or omissions. 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.
5.3 Except to the extent required as a result of any mandatory rights you have as a consumer under applicable law, you shall not be entitled to reject the Product in whole or in part by reason of short delivery and shall 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 shall pay for the quantity actually delivered.
5.4 Save as otherwise provided in these Terms, risk of loss of or damage to the Product passes to you on delivery or when placed in your possession or that of any carrier or transport provided by you, whichever shall occur first.
6.1 Except as set out below as part of our Refund and Exchange Policies set forth below and subject to any rights you have under applicable law that cannot be excluded or limited by these Terms:
6.1.1 if you are unsatisfied with the Product for any reason, you may return the Product (at your sole expense) within 15 days (after product delivered) and receive a full refund, provided that the returned Product must be in original, undamaged, and unmodified condition and include all original packaging, hardware, accessories materials, and documentation). Upon receipt by us of the returned Product (including all original packaging, hardware, accessories materials, and documentation), we will issue you a refund as soon as reasonably possible (“Refund Policy”);
6.1.2 you may also exchange the Product in the event of any damage to or loss of Product or any part thereof in transit where notified to us within 30 working days of receipt of the Product (“Exchange Policy”) in accordance with the Exchange Policy Procedures set forth below;
6.1.3 we shall not be liable for any damage or losses arising from: (a) defective installation or use of the Product; (b) the use of the Product 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.
6.1.4 where these is a shortage or failure to deliver, or any damage to the Product, we may, in our sole discretion, at our option: (a) in the case of Product shortage or non-delivery, make good on any such shortage or non-delivery and/or; and/or (b) in the case of damage to the Product and in accordance with the Exchange Policy, replace, exchange or repair the Product upon you returning the Product in accordance with the Refund/Exchange Policy procedures set forth below.
6.2 Exchange Policy Procedures. In the event there is damage to the Product and you wish to exchange it, you should email email@example.com and we will arrange for pick-up and return of the damaged Product (which must include all original packaging, hardware, accessories materials, and documentation) at our sole expense. Upon receipt by us of the returned Product (including all original packaging, hardware, accessories materials, and documentation) and verification of the damage, we will ship out to you a replacement Product as soon as reasonably possible.
6.3 Exchange Policy Limitations. Your rights of refund, repair or replacement of the Product or any part or parts thereof as part of the Exchange Policy, as applicable, will in all cases be negated or rendered void where: (a) the Product has been modified or altered by persons other than us or any authorized dealer; (b) the Product 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 Product 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 Product.
Where the Product supplied includes or embodies any software (the "Software"), the Software is licensed by us or by the relevant licensor/owner subject to the relevant end-user license agreement or other license terms included with the Product and/or on the Site (the "License Terms"). Except to the extent expressly provided by us in writing or under the License Terms, the Software is provided “AS IS” without any warranties, terms or conditions as to quality, fitness for purpose, non-infringement, performance or correspondence with description and we do not offer any warranties or guarantees in relation to the Software installation, configuration or error/defect correction. You are advised to refer to the License Terms for further information regarding the license and use of the Software.
8.1 TO THE MAXIMUM EXTENT LEGALLY PERMITTED, WHETHER OR NOT WE WERE AWARE OR ADVISED OF THE POSSIBILITY OF DAMAGES, AND WETHER OR NOT THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE: (A) OUR AGGREGATE LIABILITY (WHETHER FOR BREACH OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY) SHALL IN NO CIRCUMSTANCES EXCEED THE COST OF THE PRODUCT YOU ORDERED AND THAT ARE MOST CLOSELY RELATED TO YOUR DAMAGES; AND (B) IN NO EVENT SHALL WE BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST REVENUE, OR COST OF COVER.
9.1 All Product specifications, illustrations, drawings, particulars, dimensions, performance data and other information on the Site or made available by us are intended to represent no more than a general illustration of the Product and its features and do not constitute a warranty or representation by us that the Product will conform with the same.
9.2 THE PRODUCT IS 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 SHALL BE BINDING ON OR OBLIGATE US. THE PRODUCT IS EXPRESSLY PROVIDED TO YOU “AS IS.” WE DO NOT AND WILL NOT PROVIDE ANY TECHNICAL OR CUSTOMER SUPPORT FOR THE PRODUCT WHATSOEVER. IF ANY TECHNICAL SUPPORT OR ASSISTANCE IS PROVIDED WITH RESPECT TO THE PRODUCT 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 THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE. YOU BEAR ALL RISKS RELATING TO THE USE OF THE PRODUCT AND THE QUALITY AND PERFORMANCE OF THE PRODUCT 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.
10.1 If any license or consent of any government or other authority is required for the acquisition, carriage or use of the Product by you in any part of the Territory, you shall 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 shall be met by you.
10.2 Product licensed or sold to you under these Terms may be subject to export control laws and regulations in the Territory or other relevant jurisdiction where you take delivery or use the Product. You shall be responsible for complying with those laws and will not do anything to breach them.
10.3 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 the Product reaches 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.
We shall 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. You acknowledge that these Terms supersede and cancel all previous contracts, agreements and working arrangements whether oral or written, express or implied, between us. These Terms prevail over any other terms or conditions contained in or referred to elsewhere or implied by trade, custom or course of dealing. Any purported terms or conditions to the contrary are hereby excluded to the fullest extent legally permitted. 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. No waiver of any term or condition of these Terms shall be effective unless made in writing and signed by us. The waiver of any breach of any Term shall not be construed as a waiver of any subsequent breach or condition. The construction validity and performance of these Terms shall be governed by the laws of the State of California and the parties submit to the exclusive jurisdiction of Santa Clara County, California in the event of legal proceedings arising from any dispute.