TERMS OF SALE
(FOR THE 48 CONTIGUOUS UNITED STATES)
Effective as of September 1, 2016.
1. THESE TERMS OF SALE (THESE “TERMS”) CONTAIN VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ THEM CAREFULLY.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. See Section 16 (Dispute Resolution), below.
BY CLICKING THE ACCEPT BUTTON OR BY PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM THE WEBSITE AVAILABLE AT www.bycolortrac.com (THE “WEBSITE”) OR AUTHORIZING OTHERS TO DO SO, YOU, ON BEHALF OF YOURSELF AND THE ENTITY FOR WHICH YOU ARE PURCHASING THE PRODUCT (HEREINAFTER REFERRED TO INTERCHANGEABLY AS “YOU” OR THE “BUYER”) (a) ACCEPT THESE TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THESE TERMS; AND (b) REPRESENT AND WARRANT THAT: (i) IF YOU ARE AN INDIVIDUAL, YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A BUYER THAT IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO PURCHASE THE PRODUCT AND TO ACCEPT AND BE BOUND BY THESE TERMS ON BEHALF OF SUCH BUYER AND BIND SUCH BUYER TO THESE TERMS.
YOU MAY NOT ORDER OR OBTAIN PRODUCTS FROM THE WEBSITE IF YOU (a) DO NOT AGREE TO THESE TERMS, (b) ARE NOT AT LEAST EIGHTEEN (18) YEARS OF AGE, OR (c) ARE PROHIBITED BY APPLICABLE LAW FROM ACCESSING OR USING THE WEBSITE (DEFINED BELOW) OR ANY OF THE WEBSITE’S CONTENTS, OR PRODUCTS.
Global Scanning Americas (VA) Inc., a Virginia corporation (referred to as “Seller”, “us”, “we”, or “our” as the context may require), is a subsidiary and authorized reseller of Global Scanning UK Ltd., a private limited company organized under the laws of England and Wales (“Global Scanning”).
These Terms apply to the purchase and sale of products through the Website. All products purchased by you through the Website are purchased from Global Scanning Americas (VA) Inc., as the seller of such products.
These Terms are subject to change by us without prior written notice at any time, in our sole discretion. The latest version of these Terms will be posted on the Website, and you should review these Terms prior to purchasing any product that is available through this Website. Your continued use of this the Website after a posted change in these Terms will constitute your acceptance of and agreement to such changes. You are not entitled to amend or modify these Terms without our prior written consent.
2. Order Acceptance and Cancellation.
(a) You agree that your order through the Website is an offer to buy from us, under these Terms, all products listed in your order. All orders must be accepted by us or we will not be obligated to sell the products to you. We may choose not to accept any orders in our sole discretion. After having received your order, we will send you a confirmation e-mail with your order number and details of the items you have ordered. Acceptance of your order and the formation of the contract of sale between Global Scanning Americas (VA) Inc. and you will not take place unless and until you have received your order confirmation e-mail. You have the option to cancel your order at any time before we have sent your order confirmation e-mail by (i) emailing our Customer Service Department at email@example.com or calling our Customer Service Department at 1 (703) 717-5631.
3. Prices and Payment Terms.
(a) All prices posted on the Website are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be set out in your order confirmation e-mail. Price increases will only apply to orders placed after such changes. Posted prices include shipping charges for shipment of product. Posted prices do not include taxes. All taxes will be added to your product total and will be itemized in your shopping cart and in your order confirmation e-mail. 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.
(b) Terms of payment are within our sole discretion and payment must be received by us before our acceptance of an order. We accept Visa, MasterCard and American Express for all purchases. You represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.
4. Shipments; Delivery; Title and Risk of Loss. We will arrange for shipment of the products to you. Title and risk of loss pass to you upon our transfer of the products to the carrier. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
5. Returns and Refunds.
(a) Returns. Except for any products designated on the Website as non-returnable, we will accept a return of a product for a refund of your purchase price, less the original shipping and handling costs, provided such return is made within 14 days of delivery. A 20% Restocking fee may apply (b). Returns are not accepted for products that are damaged or incomplete (c).
(b) Restocking fee. No restocking fee will be charged when the product is returned in its original condition and such product’s packaging is unopened. A 20% restocking fee will be applied for products and packaging that have been opened, installed or used.
To return a product, you must e-mail us at firstname.lastname@example.org to obtain a Return Merchandise Authorization (“RMA”) number before shipping your product. No returns of any type will be accepted without an RMA number.
You are responsible for all shipping and handling charges on items returned pursuant to this Section 5(a). You bear the risk of loss during shipment. We therefore strongly recommend that you fully insure your return shipment against loss or damage and that you use a carrier that can provide you with proof of delivery for your protection.
(c) Inspection, Objection to Condition or Quantity. You must inspect each product within 14 days of your receipt of the product. If, prior to the end of such 14-day period, you notify us in writing as set forth below (i) that the product shipped is different than identified in your order or (ii) of any objection you have to the condition or quantity of the product, and we, in our sole discretion, determine that your notice under subsection (i) or (ii) is justified, then as our sole liability, and your exclusive remedy, we, at our sole option, will either: (y) repair or replace such product; or (z) credit or refund the order price of such product; provided that, if we so request, you shall, at our expense, return the product to us. We will also pay for shipping and handling fees to return the repaired or replacement product to you if we elect to repair or replace the nonconforming product. To notify use of the product’s nonconformity, you must e-mail us at email@example.com during the 14-day period to obtain an RMA number. No purported notice under this Section 5(c) will be effective without an RMA number. THE REMEDIES SET FORTH IN THIS SECTION 5(c) AND SECTION 6 (AS APPLICABLE) ARE YOUR SOLE AND EXCLUSIVE REMEDIES FOR NONCONFORMING PRODUCT.
(d) Acceptance of Product. Your failure to (i) return unopened product in accordance with Section 5(a) or (ii) deliver written notice of nonconformity pursuant to Section 5(c), within 14 days after delivery of the product to you, shall be deemed to constitute your acceptance of the product and your waiver of any claim pursuant to Section 5(a) or Section 5(c).
(e) Refunds. Refunds are processed within approximately 14 business days of our receipt of the product. Your refund will be credited back to the same payment method used to make the original purchase on the Website. WE OFFER NO REFUNDS ON ANY PRODUCTS DESIGNATED ON THE WEBSITE AS NON-RETURNABLE.
6. LIMITED WARRANTY.
(a) We warrant to you that, for a period of 12 months from the date of shipment of the product to you or 30,000 scanned meters of scanned image by the product, whichever occurs first (the “Warranty Period”), the product will conform to the specifications set forth in Global Scanning’s published specifications in effect as of the date of shipment of such product, and will be free from material defects in material and workmanship.
(b) The Warranty Period is not extended if we repair or replace a warranted product or re-perform a warranted service. We may change the availability of this limited warranty at our discretion, but any changes will not be retroactive. This limited warranty extends only to the original purchaser of products from the Website. It does not extend to any subsequent or other owner or transferee of the product. Consumable items relating to or used by the product, including, without limitation, glass, the paper hold plate and calibration target are excluded from this limited warranty.
(c) This limited warranty does not cover any damages due to: (i) transportation; (ii) storage; (iii) improper use; (iv) failure to follow the product instructions or to perform any preventive maintenance; (v) modifications; combination or use with any products, materials, processes, systems or other matter not provided or authorized in writing by us; (v) unauthorized repair; (vi) normal wear and tear; or (vii) external causes such as accidents, abuse, or other actions or events beyond our reasonable control.
(d) Subject to Section 6(b) and Section 6(c), above, with respect to any product during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such product (or the defective part); or (ii) credit or refund the purchase price of such product; provided that, if we so request, you shall, at our expense, return the product to us. We will also pay for shipping and handling fees to return the repaired or replacement product to you if we elect to repair or replace the defective products. NEITHER ANY PERFORMANCE OR OTHER CONDUCT, NOR ANY ORAL OR WRITTEN INFORMATION, STATEMENT OR ADVICE PROVIDED BY US OR ANY OF OUR SUPPLIERS (INCLUDING THE MANUFACTURER OF THE PRODUCT), AGENTS OR EMPLOYEES WILL CREATE A WARRANTY, OR IN ANY WAY INCREASE THE SCOPE OR DURATION OF THIS LIMITED WARRANTY.
(e) Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6(a), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO ANY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
(a) Obtaining Warranty Service. To obtain warranty service, you must e-mail us at firstname.lastname@example.org during the Warranty Period to obtain an RMA number. No warranty service will be provided without an RMA number.
(b) Sole Remedy. THE REMEDIES DESCRIBED ABOVE ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF THIS LIMITED WARRANTY.
7. Limitation of Liability.
(a) OUR LIABILITY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY YOU FOR THE DEFECTIVE PRODUCT THAT YOU HAVE PURCHASED THROUGH THE WEBSITE, NOR WILL WE UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY LOSS OF PRODUCTION, WORK, DATA, USE, BUSINESS, GOODWILL, REPUTATION, REVENUE OR PROFIT, ANY DIMINUTION IN VALUE, COSTS OF REPLACEMENT PRODUCTS OR SERVICES, OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES, REGARDLESS OF WHETHER DIRECT OR INDIRECT, AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
8. Compliance with Laws; Products Not for Resale or Export. You agree to comply with all applicable laws and regulations of the various states and of the United States including, without limitation, all applicable export laws and regulations. You represent and warrant that you are buying products from the Website for your own business use only, and not for resale or export, and you covenant that you will not resell or export any such products.
9. Intellectual Property Use and Ownership. You acknowledge and agree that:
(a) The use of all computer software products provided in connection with a product sold hereunder (“Software”) shall be governed by the Software End User License Agreement (the “EULA”) available at https://bycolortrac.com/pages/end-user-licence-agreement. YOU AGREE TO BE BOUND BY AND YOU WILL COMPLY WITH ALL TERMS AND CONDITIONS OF THE EULA FOR ANY PRODUCT YOU OBTAIN THROUGH THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ALL CONFIDENTIALITY OBLIGATIONS AND RESTRICTIONS ON RESALE, USE, REVERSE ENGINEERING, COPYING, MAKING, MODIFYING, IMPROVING, SUBLICENSING AND TRANSFER OF THOSE LICENSED PRODUCTS.
(b) Without limiting any provision in the EULA, (i) Global Scanning retains all right, title, and interest in and to all (A) copyright, trademarks and other intellectual property rights in all products sold hereunder, (B) manuals, technical manuals and any other materials provided by Global Scanning or us, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the product or Software, and (C) any customization, improvement, invention or other modification developed by Global Scanning or us, in whole or in part, with respect to such products, Documentation or Software sold hereunder (“Development”); (ii) no license is granted to you regarding any Development and you hereby assign to Global Scanning any right, title, or interest that you may have to any Development.; and (D) you do not and will not have or acquire any ownership of any product sold hereunder, Software or Development, or of any intellectual property rights relating to any such product, Software or Development.
For the purposes hereof, documentation means “Documentation” means user manuals, technical manuals and any other materials provided by Global Scanning, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the product or Software; provided that Documentation does not include marketing materials.
(c) You will not cause, induce or permit others’ noncompliance with the EULA.
10. Indemnification. You will indemnify, defend and hold harmless Global Scanning Americas (VA) Inc., Global Scanning, and their respective officers, employees, authorized agents and affiliates (“Indemnified Parties”) from and against any and all claims, suits, damages, judgments, costs, and expenses, including court costs and reasonable attorneys' fees (collectively, “Losses”) resulting from any claim, suit or demand arising out of (i) use of the product by you, (ii) use of facilities, services, materials, data, or information by you not provided by Global Scanning Americas (VA) Inc. or Global Scanning, or (iii) compliance by Global Scanning Americas (VA) Inc. or Global Scanning with any request or instruction by you, except to the extent caused by the gross negligence or willful misconduct of Global Scanning Americas (VA) Inc. or Global Scanning. We will notify you of any such claim, suit, or demand promptly upon receiving notice thereof, and will keep you advised of the status thereof.
11. Confidentiality. If you receive any confidential information from us regarding Global Scanning Americas (VA) Inc. or Global Scanning, you shall protect such information and shall not use or disclose such information. Upon our request, you shall immediately return to us any documents, specifications, technical data and other confidential information.
13. Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
14. Equitable Remedies. You acknowledge and agree that your breach of breach or threatened breach of Section 8 (Compliance with Laws; Products Not for Resale or Export), Section 9 (Intellectual Property Use and Ownership) or Section 11 (Confidentiality) will cause irreparable harm to Global Scanning Americas (VA) Inc. and Global Scanning for which for which money damages will be inadequate, and that Global Scanning Americas (VA) Inc. and Global Scanning shall be entitled to equitable or injunctive remedies, without waiving any other remedy available in law or equity, in the event of such breach or threatened breach.
15. Governing Law. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the Commonwealth of Virginia without giving effect to any choice or conflict of laws provision or rule (whether of the Commonwealth of Virginia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Commonwealth of Virginia.
16. Dispute Resolution.
(a) Arbitration. Any dispute, controversy or claim arising out of, relating to, or in connection with the sale or purchase of product from the Website or these Terms, shall be finally resolved by binding arbitration. The arbitration shall be governed in accordance with the laws of the Commonwealth of Virginia. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The arbitration shall take place in Washington, D.C., United States of America, before a single neutral JAMS arbitrator. After the appointment of the arbitrator, the parties shall have the right to take depositions and to obtain discovery by other means regarding the subject matter of the arbitration as if the matter were pending in the United States District Court for the Eastern District of Virginia, although the arbitrator may, for good cause shown, limit the nature and extent of such discovery and establish or modify the schedule relating to any discovery requests or applications relating thereto. The arbitrator must follow applicable law. The award of the arbitrator shall be conclusive and binding. Judgment on the award may be entered in any court having jurisdiction. The parties shall maintain the confidential nature of the arbitration proceeding and the arbitrator’s award, including the arbitration hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. All fees and expenses of the arbitrators and all other expenses of the arbitration shall be borne by the parties equally (i.e., 50% for each party). The parties are responsible for their own attorney’s fees in connection with the arbitration. THE PARTIES AGREE TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS, AND THAT THESE TERMS, INCLUDING THIS AGREEMENT TO ARBITRATE, DO NOT PERMIT CLASS ARBITRATION OR ANY CLAIMS BROUGHT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. THE ARBITRAL TRIBUNAL MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. The arbitral tribunal shall have the power to determine the validity or enforceability of the agreement to arbitrate solely on an individual basis. In the event the prohibition on class arbitration is deemed invalid or unenforceable by a court, then the remaining portions of the arbitration agreement will remain in force. The right to rule on any challenge to the arbitral tribunal’s jurisdiction or to the validity or enforceability of any portion of the agreement to arbitrate is reserved to the courts.
(b) Small Claims Court. Notwithstanding anything in Section 16(a) to the contrary, you may elect to pursue your claim in small claims court of any state, province or jurisdiction of having competent jurisdiction (which court need not be located in Fairfax County, Virginia, United States of America), rather than arbitration if you provide us with written notice of your intention to do so; provided that the small claims court proceeding will be limited solely to your individual dispute or controversy. However, if such claim is transferred, removed or appealed to a different court, we may then choose to arbitrate, and you must submit the dispute or controversy to arbitration in accordance with Section 16(a).
(d) Equitable Relief. Notwithstanding anything to the contrary in Section 16, above, claims for equitable or injunctive relief, may be brought before any federal, state or provincial court sitting in any state, province or jurisdiction having competent jurisdiction (which court need not be located in Fairfax County, Virginia, United States of America).
17. Assignment. You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section 17 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
18. No Waivers. The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Global Scanning Americas (VA) Inc.
19. Third Party Beneficiaries. Except for (a) Section 9 (Intellectual Property Use and Ownership), Section 11 (Confidentiality) and Section 14 (Equitable Remedies), with respect to which Global Scanning is intended to be a third party beneficiary, and (b) Section 10 (Indemnification), with respect to which Indemnified Parties are intended to be third party beneficiaries, no provision of these Terms shall be for the benefit of or enforceable by any third party.
(a) To You. We may provide any notice to you under these Terms by: (i) sending a message to the e-mail address you provide or (ii) by posting to the Website. Notices sent by e-mail will be effective when we send the e-mail and notices we provide by posting will be effective upon posting. It is your responsibility to keep your e-mail address current.
(b) To Us. To give us notice under these Terms, you must contact us as follows: (i) by sending a message to email@example.com; (ii) by sending facsimile transmission to 1 (701) 717-5361; or (ii) by personal delivery, overnight courier or registered or certified mail to Global Scanning Americas (VA) Inc., Customer Service Department, 14155 Sullyfield Circle, Suite C, Chantilly, Virginia 20151, United States of America. We may update the facsimile number or address for notices to us by posting a notice on the Website. Notices sent by email will be effective upon a non‑automated reply confirming receipt. Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided by personal delivery will be effective immediately. Notices provided by registered or certified mail will be effective three business days after they are sent.
21. Severability. If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
23. Survival. This Section 23 (Survival), and Sections 6 (Limited Warranty), 7 (Limitation of Liability), 8 (Compliance with Laws; Products Not for Resale or Export), 9 (Intellectual Property Use and Ownership), 10 (Indemnification), 11 (Confidentiality), 14 (Equitable Remedies), 15 (Governing Law), 16 (Dispute Resolution), 19 (Third Party Beneficiaries) shall survive the termination of these Terms or the agreement for the sale of product between you and us for any reason.
[END OF TERMS OF SALE]