TERMS & CONDITIONS OF SALE
Canadian VERSION DATE: November 2, 2009
SCOPE & APPLICATION
THESE TERMS OF SALE ("TERMS") APPLY TO ALL OFFERS, SALES AND PURCHASES OF PRODUCTS (INCLUDING, WITHOUT LIMITATION, HARDWARE AND/OR SOFTWARE) ("PRODUCTS") OR SERVICES ("SERVICES") WHICH ARE SOLD THROUGH THE WEBSITE ON WHICH WE POST THESE CONDITIONS ("SITE") BY: (A) US, Digital River Ireland Ltd., Dromore House, East Park, Shannon, County Clare, V14 AN23, Ireland, (REFERENCES TO "US", "WE" OR "OUR" BEING CONSTRUED ACCORDINGLY) THE SELLER, TO (B) YOU, THE PURCHASER (REFERENCES TO "YOU" OR "YOUR" BEING CONSTRUED ACCORDINGLY).
ALL PURCHASES ARE FINAL, NON-CANCELABLE AND NON-REFUNDABLE, EXCEPT AS SPECIFIED IN THE APPLICABLE RETURNS POLICY.
OFFER, ACKNOWLEDGMENT AND ACCEPTANCE
Any prices, quotations and descriptions made or referred to on this Site are subject to availability, do not constitute an offer and may be withdrawn or revised at any time prior to our express acceptance of your order (as described below).
While we make every effort to ensure that items appearing on the Site are available, we cannot guarantee that all items are in stock or immediately available when you submit your order. We may reject your order (without liability) if we are unable to process or fulfill it. If this is the case, we will refund any prior payment that you have made for that item.
An order submitted by you constitutes an offer by you to us to purchase Products or Services on these Terms and is subject to our subsequent acceptance.
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.
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/commencing Services and accepting your credit card or other payment ("Acceptance").
We may keep records of orders received, acknowledgements, acceptances and other contract records for a reasonable period after Acceptance. We may be able to provide you with copies on written request; however you must make sure you print a copy of all such documents and these Terms for your own records.
You represent that information provided by you when placing your order is up-to-date materially accurate and is sufficient for us to fulfill your order.
You are responsible for maintaining and promptly updating your account information with us for accuracy and completeness and keeping such information (and any passwords given to you for the purposes of accessing the Site and/or purchasing Products) secure against unauthorized access.
Unless agreed otherwise or required by applicable law, any warranties provided in relation to Products or Services only extend to you on the understanding that you are a user and not a reseller of those Products or Services.
No warranty, commitment or any other obligation should ever be assumed by you on our behalf or on behalf of a Product manufacturer, licensor or supplier without our express prior written consent.
PRICE AND TERMS OF PAYMENT (NOTE: WE CANNOT CONFIRM PRICES PRIOR TO ACCEPTANCE OF YOUR ORDER)
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 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 or Service will be provided in accordance with such revised description or corrected price.
The places that we deliver to are listed on the Site ("Territory
"). Unless otherwise specified, prices quoted are
exclusive of the costs of shipping or carriage to the agreed place of delivery within the Territory (charges for which are stated on the Site); and
exclusive of 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 Products as such costs are specified by us on the Site when you submit your purchase order.
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).
Except as expressly provided elsewhere in these Terms or the Site, payment may be taken in full notwithstanding any claim for short delivery or defects.
We will charge credit or debit cards on dispatch of the Product or commencement of Services. We reserve the right to verify credit or debit card payments prior to Acceptance.
Where the payment is invoiced, each invoice shall be due on and made in full within thirty (30) days of the date of relevant invoice. If at any time you fail to pay any amount due on the relevant due date, we may by notice declare all invoiced amounts unpaid at that date to be immediately due and payable.
No counterclaim or set-off may be deducted from any payment due without our written consent. We may also take action against you for the price of Products at any time after payment has become due even though property in those Products may not yet have passed to you.
Any extension of credit allowed to you may be changed or withdrawn at any time. Interest shall be chargeable on overdue amounts accruing on a daily basis at the maximum amount permitted under applicable law from the due date for payment until our receipt of the full amount (whether before or after judgment). You shall indemnify us on demand against any out of pocket expenses incurred in relation to recovery of any overdue amounts.
If a proceeding in bankruptcy, receivership, liquidation or insolvency is commenced against you or your property or you enter into an arrangement with creditors or a court order for winding-up is made against you or you take or suffer any similar action in consequence of debt or we have cause to believe that you are unable to pay your debts as they fall due; or you fail to pay any amount by the due date or breach any of these Terms then, without prejudice to any of our other rights, we may:-
stop any Products in transit; and/or
suspend further Product deliveries; and/or
stop or suspend provision of Services; and/or
by written notice, terminate your order and all or any other contracts between us and you.
DELIVERY AND RISK
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 Products and/or commence Services by a particular date or dates and shall not be liable to you in respect of delays or failure to do so.
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.
If you refuse or fail to take delivery of Products provided in accordance with these Terms, any risk of loss or damage to the Products shall nonetheless pass and without prejudice to any other rights or remedies we have:-
We shall be entitled to immediate payment in full for the Products or Services delivered and either to effect delivery by whatever means we consider appropriate or to store Products at your risk;
You shall be liable pay on demand all costs of Product storage and any additional costs incurred as a result of such refusal or failure to take delivery;
We shall be entitled 30 days after the agreed date for delivery to dispose of Products in such manner as we determine and may set off any proceeds of sale against any sums due from you.
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 Products 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 7 days of the latest of the date of receipt of the relevant invoice or delivery whereupon you shall pay for the quantity actually delivered.
Where we deliver Products by installments, each installment constitutes a separate contract and any defect in any one or more installments shall not entitle you to repudiate the contract as a whole nor to cancel any subsequent instalment.
Save as otherwise provided in these Terms, risk of loss of or damage to the Products 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.
Where any Product supplied is or includes software ("Software
"), this 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 Software ("License Terms
") and/or the Product. In addition:
Such Software may not be copied, adapted, translated, made available, distributed, varied, modified, disassembled, decompiled, reverse engineered or combined with any other software, save to the extent that (i) this is permitted in the License Terms, or (ii) applicable law expressly mandates such a right which cannot legally be excluded by contract.
Save to the extent provided for in any applicable License Terms, your rights of return and/or to a refund under these Terms and any applicable Returns Policy do not apply in the event that you open the Software shrink-wrap and/or break the license seal and/or use the Software.
Except to the extent expressly provided by us in writing or under relevant License Terms, Software is provided 'as is' without any warranties, terms or conditions as to quality, fitness for purpose, performance or correspondence with description and we do not offer any warranties or guarantees in relation to Software installation, configuration or error/defect correction. You are advised to refer to any License Terms with regards to determining your rights against a manufacturer, licensor or supplier of the Software.
WARRANTY DISCLAIMER, RETURNS
If Products or Services come with pre-packaged manufacturer guarantee statements, we will pass on such guarantee statements to you so you can bring claims against the manufacturer directly. We do not, however, ourselves extend any warranties, guarantees or representations regarding any Products or Services. 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 Products and do not constitute a warranty or representation by us that the Products will conform with the same.
WE DELIVER ALL PRODUCTS AND SERVICES "AS IS." TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
If and to the extent we cannot fully disclaim warranties under applicable law, the applicable warranty period shall be reduced to 30 days following delivery and you shall lose any and all warranty claims or entitlements, unless we receive your detailed written notice regarding warranty claims within such 30 day period.
Except as provided in the applicable Returns Policy, you shall have no rights to return products, demand refunds or claim any other remedies. The Returns Policy contains your sole and exclusive remedy in case of dissatisfaction with Products or Services.
TO THE MAXIMUM EXTENT LEGALLY PERMITTED, WHETHER OR NOT WE WERE AWARE OR ADVSED OF THE POSSIBILITY OF DAMAGES, AND WETHER OR NOT THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE (1) OUR AGGREGATE LIABILITY (WHETHER FOR BREACH OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY) SHALL IN NO CIRCUMSTANCES EXCEED THE COST OF THE PRODUCTS YOU ORDERED AND THAT ARE MOST CLOSELY RELATED TO YOUR DAMAGES AND (2) WE SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST REVENUE, OR COST OF COVER.
THIRD PARTY RIGHTS
You shall indemnify us against any and all liabilities, claims and costs incurred by or made against us as a direct or indirect result of us performing Services or carrying out any work on or to the Products where this has been done to your (or your representative's) specific requirements or specifications causing an infringement or alleged infringement of any proprietary rights of any third party.
To the fullest extent permitted by law and save where expressly set out in any License Terms or elsewhere, we shall have no liability to you in the event of the Products or Services infringing or being alleged to infringe the proprietary rights of any third party. In the event that the Products are or may be the subject of patent, copyright, database right, registered design, trade mark or other rights of any third party, you should refer to the relevant terms of the Product manufacturer and/or licensor/owner. We shall be obliged to transfer to you only such right or title as we have.
CONSENTS, CUSTOMS DUTIES & EXPORT
If any license or consent of any government or other authority is required for the acquisition, carriage or use of the Products by you, you shall obtain such license or consent at your own expense and if necessary produce evidence to us on demand. Failure so to do shall not entitle you to withhold or delay payment of the price. Any additional expenses or charges incurred by us resulting from such failure shall be met by you.
Products 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 them. You shall be responsible for complying with those laws and will not do anything to breach them.
Items 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.
Any notice or other communications in relation to our contract may be given by sending the same by hand delivery, pre-paid post, fax or e-mail to the latest address and contact that one party has notified in writing to the other. This will also be the address for service of legal proceedings in the manner prescribed by law. Except as set out above in relation to cancellation of consumer orders, such notices or communications (where properly addressed) shall be considered received:
In relation to hand delivery, on the date of delivery at the relevant address (or, if this is not a working date, the first working date thereafter);
If posted, 5 working days after the date of posting;
If by fax, on the date of the transmission as evidenced by a successful transmission contact report (or, if this is not a working date, the first working date thereafter).
If sent by email, on the earliest of (i) the email being acknowledged by the recipient as received; (ii) receipt by the sender of an automated message indicating successful delivery or the email having been opened; or (iii) the expiry of 48 hours after transmission, provided that the sender has not received notification of unsuccessful transmission.
You shall not assign, transfer, charge or make over or purport to assign transfer charge to make over your rights under these Terms
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, terror, 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, Internet communications, 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.
No relaxation, forbearance, delay or indulgence by either you or us in enforcing any of these Terms or the granting of time by either party to the other shall prejudice or restrict such rights and powers.
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.
If for any reason we determine or a court of competent jurisdiction finds that any provision or portion of these Terms to be illegal, unenforceable, or invalid under applicable law in a particular jurisdiction:
these Terms will not be affected in other jurisdictions to the extent that such determination or finding has no application; and
in the relevant jurisdiction, the remainder of these Terms (to the fullest extent permitted by law) will continue in full force and effect.
GOVERNING LAW AND JURISDICTION
The construction validity and performance of these Terms and any disputes arising out of or related to these Terms or the Site ("Disputes") shall be governed by the law of the province of Ontario and the federal laws of Canadian applicable therein and the parties submit to the exclusive jurisdiction of the courts in Ontario [local counsel to suggest advantageous forum] in the event of legal proceedings arising from any Disputes.
The language of any dispute resolution procedure or any proceedings will be English.