This agreement applies as between you and Deliver Warm LLC
a Colorado registered Company with seat in 1942
Broadway Street, STE 314C, Boulder, CO, 80302, USA,
(hereinafter “Deliver Warm”, “we” or “us”). Your
agreement to comply with and be bound by these terms and conditions is deemed
to occur upon your first use of the website and our online shop.
1.
General Terms and Conditions
1.1. The provisions set out in these Terms govern your access to and your use
of our website and shall constitute a legally binding agreement between you and
us. We may change such terms from time to time and shall notify you accordingly
if we do. If you do not agree to such terms, you must not use our website.
1.2. Subject to you agreeing to abide by these Terms, we hereby grant to you
a revocable, non-exclusive and non-transferable license to use our website on
these Terms.
1.3. You acknowledge that the sales of goods (“Products”) through our website
is limited to Commercial clients in their ordinary course of business and as
such not available to Consumers. Thus, any contracts concluded are a contract
of sale of goods between Deliver Warm and a commercial buyer for business
purposes (B2B).
1.4. By registering for an Account, which involves providing us with certain
mandatory and voluntary information as required for a successful registration
and using our website, you agree and acknowledge that:
1.4.1.
you have read the terms set out in these Terms and
agree to be bound by and comply with them;
1.4.2.
you are a
person acting under a company’s express, implied, or apparent authority; and
1.4.3.
you shall ensure that all Users of your Account abide
by these Terms.
1.5. You are responsible for maintaining the confidentiality of your Account
and you are responsible for all activities that occur under your Account. You
agree that all actions carried out by any person through your Account shall be
deemed to be an act carried out by you, and you shall ensure that all persons
who have access to and use your Account are authorised to do so. We are not
responsible for any loss, damage or liabilities arising as a result of or in
connection with the wrongful, fraudulent or illegal use of your Account.
1.6. We reserve the right to, without any notice, explanation, or liability
and in our sole discretion, refuse to allow you or suspend your access to our
website or your Account at any time, or remove or edit content on our website
or on any of our affiliated websites.
1.7. We reserve the right to change, modify, suspend, or discontinue any
portion of the Services, our website or any other products, services,
affiliated websites and/or other software provided by us in connection with any
of the foregoing at any time. You agree that access to or operation of any of
the foregoing may from time to time be interrupted or encounter technical
difficulties.
1.8. Save to the extent permitted by us in writing, you are not permitted to
use, or submit any content to, our website or any of our affiliated websites to
advertise, promote or market any products or services of any third party or
yourself.
2.
Intellectual Property
2.1.
All Content included on the website, unless
uploaded by Users, including, but not limited to, text, graphics, logos, icons,
images, sound clips, video clips, data compilations, page layout, underlying
code and software is the property of Deliver Warm, our affiliates or other
relevant third parties. By continuing to use the website you acknowledge that
such material is protected by applicable United States and International
intellectual property and other relevant laws.
2.2.
You may not reproduce, copy, distribute, store or
in any other fashion re-use material from the website unless otherwise
indicated on the website or unless given express written permission to do so by
Deliver Warm.
2.3.
You agree not to undertake any of the following
actions:
2.3.1. Reverse
engineer or attempt to reverse engineer or disassemble any code or software
from or on the Website or Services.
2.3.2. Violate
the security of the Website or Services through any unauthorized access,
circumvention of encryption or other security tools, data mining, or
interference to any host, user, or network.
3.
Basis
of Order and Acknowledgement
3.1.
The Contract is subject to these terms and
conditions to the exclusion of all other terms and conditions (including any
terms and conditions you purport to apply in any Contract).
3.2.
Minimum order quantities and/or values may apply at
our discretion.
3.3.
You represent that you are a person acting under a
company’s express, implied or apparent authority.
3.4.
A Contract shall not be effective until we have
issued written acknowledgement and acceptance of such Contract (notwithstanding
any earlier confirmation of receipt).
3.5.
We may in our sole discretion decline any purchase
order placed by you. No change or modification of the Contract shall be allowed
after acceptance by us unless accepted in writing by us. If there is any
conflict between the prices indicated online and our acknowledgement of the
Contract, then the latter shall take precedence.
4.
Products
Descriptions and Prices
4.1.
We do our best to ensure that the information about
our Prints (hereinafter “Products”) is accurate and up to date. However, we do
not guarantee that there will be no errors in the description and/or pricing of
the Products, or that Products will always be available if you wish to place an
Order to purchase them.
4.2.
Please note that: the colors you see on your screen
may depend on your computer system and settings, so we cannot guarantee that
your computer will accurately display such colors (different
LCDs, monitors etc.
4.3.
We reserve the right to modify the information
about Products displayed on our Site, including as regards prices, description
and availability. However, such changes will not affect Orders for which you
have already received an Order Receipt email.
5.
When
Orders are not accepted
5.1.
While we do our best to always accept Orders, we
could however refuse an Order in certain cases, for example if: you provide us
with incomplete, incorrect or fraudulent information regarding your identity,
age, payment details, billing information, shipping address; we discover that
there was an error on our Site relating to the Products you ordered, for
example as regards the price or description displayed the Products you ordered
are unfortunately out of stock or no longer available.
5.2.
If we cannot accept your Order we will contact you
by email as soon as possible but in any case no later than 30 days from the
date of your Order.
5.3.
If we cannot accept your Order because the Products
are no longer available, or because of an error in the price and/or other
information on our Site, we will refund you any money you may have already been
charged for such Products.
6.
Cancellation
of Orders
6.1.
Deliver Warm reserves the right to cancel, at any
time before delivery and for whatever reason, an Order that it has previously
accepted. Deliver Warm may do this for example, but without limitation, where:
6.1.1. an
event beyond Deliver Warm’s control, such as storm, fire, flood or failure of
computer systems, means that Deliver Warm is unable to supply the Products
within a reasonable time;
6.1.2. Products
ordered were subject to an error on the website, for example, in relation to a
description, price or image, which was not discovered prior to the Order being
accepted;
6.1.3. you
ask Deliver Warm to cancel your Order; or
6.2.
You may cancel your Order where Deliver Warm:
6.2.1. has
breached a material term of this Agreement;
6.2.2. is not
able to deliver your Order within a reasonable time of the estimated delivery
time, other than a result of any delay: (i) for which you are wholly or partly
responsible such as a failure to provide the correct delivery address or to pay
for the Products; or (ii) which was outside Deliver Warm’s control.
6.3.
Where Deliver Warm cancels your Order after
acceptance it will send you an e-mail notifying you of cancellation.
6.4.
In the event of Deliver Warm or you are cancelling
your Order after payment has been processed, Deliver Warm will refund any money
paid in respect of that Order, typically within 14 days.
6.5.
Except to the extent otherwise required by law or
as expressly set out in these terms and conditions, Deliver Warm will not be
liable to you, or any other person, for any loss, damage, cost or expense
suffered as a direct or indirect result of cancellation of your Order, whether
in contract, negligence or any other tort, equity, restitution, strict
liability, under statute or otherwise at all.
7.
Availability
of Products
Deliver
Warm cannot guarantee availability at all times. You acknowledge and agree
that, from time to time, certain Products may be out of stock or unavailable.
Deliver Warm reserves the right to withdraw or suspend from sale any Products
displayed on the website, either temporarily or permanently, at any time
without notice to you. Except to the extent otherwise required by law, Deliver
Warm will not be liable to you, or any other person, for any loss, damage, cost
or expense suffered as a direct or indirect result of the unavailability of any
Products at any time, whether in contract, negligence or any other tort, equity,
restitution, strict liability, under statute or otherwise at all.
8.
Passing
of Risk and Title
The
risk in the Product shall pass to you on delivery as set forth herein. The full
legal, beneficial and equitable title to the Product shall remain vested in us (even
though they have been delivered and risk has passed to you) until we give
written notice to you to pass legal and beneficial ownership of the Product to
you or, if earlier: (a) payment in full, in cash or cleared funds, for all the
Product has been received by us; and (b) all other money payable by you to us
or under the Contract or any other contract or order has been received by us.
Our rights and remedies set forth herein are in addition to and shall not in
any way prejudice, limit or restrict any of our other rights or remedies under
the Contract or in law or equity. We shall be entitled to maintain an action
against you for the price of the Product notwithstanding that legal, equitable
and beneficial title to and property in the Product has not passed to you.
9.
Delay
in availability or delivery of Goods
You
agree and acknowledge that:
9.1.
Deliver Warm does not guarantee the dispatch or
delivery or availability of Goods within the time frames set out, estimated
delivery times listed for your Order or any other time frames otherwise
specified by Deliver Warm;
9.2.
stock availability and events outside Deliver
Warm’s control may cause delays, or in some circumstances, prevent your Goods
from being delivered;
9.3.
delays are particularly likely to occur during busy
sale periods such as those around Christmas, Easter and public holidays; and
9.4.
except to the extent expressly set out in these
Terms and Conditions or otherwise required by law, neither Deliver Warm nor any
of its agents will be liable to you, or any other person, for any loss, damage,
cost or expense suffered as a direct or indirect result of any delay in
delivery of the Goods to you or delay in the availability of Goods, whether in
contract, negligence or any other tort, equity, restitution, strict liability,
under statute or otherwise at all.
10.
Warranty
10.1.
We warrant that any Product furnished hereunder
shall, at the time of delivery, be free from defects in material and
workmanship. You shall submit to us reasonable written details establishing a
breach of the warranty set forth above. Unless agreed otherwise by us in
writing, our liability for failure of any Product to comply with the foregoing
shall be limited to replacing that Product found. We shall pay all reasonable
return packaging and transportation costs of a valid claim. If requested by us,
you shall promptly deliver back to us any Product which have been replaced.
10.2.
We shall not be liable for a breach of the warranty
in any of the following circumstances: (i) the Product has been modified,
altered, used in its intended purpose or misuse or neglect; (ii) the Product
has not been used in accordance with our instructions; (iii) normal wear and
tear, willful or accidental damage; (iv) the price for the Product, or any
other Products or services supplied by us or our affiliates, has not been
received in full.
10.3.
Minor deviations from specifications which do not
affect performance of the Product shall not be deemed to constitute defects in
materials or workmanship or a failure to comply with the specifications
referred to.
11.
Exclusion
and Limitation of Liability
11.1.
These terms and conditions set out our entire
liability (including any liability for the acts or omissions of our
sub-contractors) in respect of the Product supplied by us and any representation,
statement or tortious act or omission including negligence arising under or in
connection with the Contract. Nothing in these terms and conditions shall
exclude or limit our liability for death or personal injury caused by our
negligence or for fraudulent misrepresentation or for any liability that cannot
legally be excluded or limited.
11.2.
In no event shall we be liable for: (i) any loss of
anticipated profits; (ii) any loss of actual profits, (direct or indirect);
(iii) any loss of anticipated savings; (iv) any loss of business or revenue;
(v) any economic loss of whatever nature; (vi) any indirect, special or
consequential loss or damage, or punitive or exemplary damages, howsoever
caused; (vii) any loss arising as a result of any third party bringing a claim
of any nature whatsoever; and/or (viii) any loss resulting from use,
application of or results obtained from any software incorporated into the
product.
11.3.
We shall not be liable for any such loss whether or
not any such loss or damage was foreseen, direct, foreseeable, known or
otherwise. Our total aggregate liability arising out of or in connection with
the performance or contemplated performance of the contract whether for
negligence or breach of contract or for any cause whatsoever shall in no event
exceed the price paid by you for the product giving rise to your claim.
11.4.
To the extent permitted by law, the period in which
any claim arising out of or related to the contract must be brought is limited
to one year from the date that such claim or cause of action is discovered or
should have been discovered with the exercise of due diligence, and no claim
may be brought after the expiry of this agreed limitation period.
11.5.
Every effort has been made to ensure that these
terms and conditions adhere strictly with the relevant legal provisions.
However, in the event that any of these terms are found to be unlawful, invalid
or otherwise unenforceable, that term is to be deemed severed from these terms
and conditions and shall not affect the validity and enforceability of the
remaining terms and conditions. This term shall apply only within jurisdictions
where a particular term is illegal.
12.
Accuracy
of Billing and Account Information
12.1.
We reserve the right to refuse any order you place
with us. We may, in our sole discretion, limit or cancel quantities purchased
per person, per household or per order. In the event that we make a change to
or cancel an order, we may attempt to notify you by contacting the e-mail
and/or billing address/phone number provided at the time the order was made. We
reserve the right to limit or prohibit orders that, in our sole judgement,
appear to be placed by dealers, resellers or distributors.
12.2.
You agree to provide current, complete, and
accurate purchase and order information for all purchases made at our store.
12.3.
You agree to promptly update your order
information, including your email address and credit card numbers and
expiration dates, so that we can complete your transactions and contact you as
needed.
13.
Privacy
13.1.
For the purposes of applicable data protection
legislation, Deliver Warm will process any personal information you have
provided to us in accordance with our Privacy Policy available on the Deliver
Warm website or on request from [email protected].
13.2.
You agree that, if you have provided Deliver Warm
with personal data relating to a third party (i) you have in place all
necessary appropriate consents and notices to enable lawful transfer such
personal data to Deliver Warm and (ii) that you have brought to the attention
of any such third party the Privacy Notice available on the Deliver Warm
website or otherwise provided a copy of it to the third party. You agree to
indemnify Deliver Warm in relation to all and any liabilities, penalties,
fines, awards or costs arising from your non-compliance with these
requirements.
14.
Disclaimers
Deliver Warm makes no warranty or representation
that the Products will meet your requirements, that it will be of satisfactory
quality, that it will be fit for a particular purpose, that it will not infringe
the rights of third parties, that it will be secure, and that all information
provided will be accurate. We make no guarantee of any specific results from
the use of our Products.
15.
Indemnity
You agree to indemnify and hold us, our related,
and our respective directors, officers, employees, agents and representatives,
independent contractors, licensees, successors and assigns harmless from and
against all claims, losses, expenses, damages and costs (including but not
limited to direct, incidental, consequential, exemplary and indirect damages),
and reasonable legal fees, resulting from or arising out of your act, default
or omission, whether in your use of our Platform, Services, and/or any website
or software in relation thereto or otherwise, and whether in respect of your
breach of these Terms or any laws or regulations or otherwise.
16.
No
Waiver
In the event that any party to these Terms and
Conditions fails to exercise any right or remedy contained herein, this shall
not be construed as a waiver of that right or remedy.
17.
Previous
Terms and Conditions
In the event of any conflict between these Terms
and Conditions and any prior versions thereof, the provisions of these Terms
and Conditions shall prevail unless it is expressly stated otherwise.
18.
Availability of the Web Site
18.1.
The Service is provided “as is” and on an “as
available” basis. We give no warranty
that the Service will be free of defects and / or faults. To the maximum extent permitted by the law we
provide no warranties (express or implied) of fitness for a particular purpose,
accuracy of information, compatibility and satisfactory quality.
18.2.
Deliver Warm accepts no liability for any
disruption or non-availability of the Web Site resulting from external causes
including, but not limited to, ISP equipment failure, host equipment failure,
communications network failure, power failure, natural events, acts of war or
legal restrictions and censorship.
19.
Other important terms
19.1.
We may transfer our rights and obligations under
these Terms to another organization, but this will not affect your rights or
obligations under these Terms.
19.2.
You may only transfer your rights or your
obligations under these Terms to another person if we agree in writing.
19.3.
No joint venture, partnership or agency or
employment relationship has arisen by reason of these Terms.
19.4.
These Terms and any document expressly referred to
in it constitutes the entire agreement between us regarding their subject
matter, and supersedes and extinguishes all previous agreements, promises,
assurances, warranties, representations and understandings between us, whether
written or oral, relating to that subject matter. You agree that you shall have
no remedies in respect of any statement, representation, assurance or warranty
(whether made innocently or negligently) that is not set out in these Terms or
any document expressly referred to in it. You agree that you shall have no
claim for innocent or negligent misrepresentation or negligent misstatement
based on any statement in these Terms or any document expressly referred to in
it.
19.5.
If we fail to insist that you perform any of your
obligations under these Terms, or if we do not enforce our rights against you,
or if we delay in doing so, that will not mean that we have waived our rights
against you and will not mean that you do not have to comply with those
obligations. If we do waive a default by you, we will only do so in writing,
and that will not mean that we will automatically waive any later default by
you.
19.6.
Each of the conditions of these Terms operates
separately. If any court or competent authority decides that any of them are
unlawful or unenforceable, the remaining conditions will remain in full force
and effect.
19.7.
Choice of Law shall be New York. These terms and
conditions and the relationship between you and Deliver Warm shall be governed
by and construed in accordance with the Law of the state of New York, and you
agree to submit to the exclusive jurisdiction of the Courts of Manhattan, New
York, United States.