Purchase Agreement
1. Definitions
“Deposit” means a non-refundable amount paid by you to us to reserve a Product when it becomes available for delivery.
“You” means the buyer of the Product(s).
“Order” means the order for specific Products you place with us, including any changes that are subsequently agreed by the parties. When purchasing Products through the Website, your Order will be displayed to you in the checkout of the Website. If any changes to your Order are agreed, you will be provided with an updated order confirmation reflecting those changes.
“Parties” means “we” or “us” or “our” as supplier on the one hand and you as buyer on the other hand.
“Pre-order” means a pre-order for specific Products you place with us that are not currently available for delivery, including any changes that are subsequently agreed by the Parties. When purchasing through the Website, your pre-order will be displayed to you in the checkout of the Website. If any changes to your pre-order or any subsequent Order are agreed, you will be provided with an updated order confirmation reflecting those changes.
“Product” or “Products” means any products available for Pre-order or sale by us, as displayed on our website from time to time.
“Purchase Agreement” means this agreement.
“Purchase Price” means the price payable for any Products under the Order.
“Warranty” means the warranty as described in the Warranty Policy and attached to this Purchase Agreement.
“We” or “us” or “our” means Foil Drive Americas Inc., 136 Madison Avenue, 5th & 6th Floors, New York, New York, 10016, United States of America
“Website” means www.us.foildrive.com
2. General
This Purchase Agreement, and the documents incorporated by reference in this Purchase Agreement, set out the entirety of the terms of your purchase of Products from us. By placing an Order with us and paying the Purchase Price, you are taken to have agreed to the terms of this Purchase Agreement.
We do our best to ensure that the information about 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.
Also, 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.
We reserve the right to modify the information about Products displayed on our website, including as regards prices, description and availability. However, such changes will not affect Orders for which you have already received an Order receipt email.
3. Your Purchase
You agree to purchase, and we agree to sell to you, the Products detailed in the Pre-order or Order on the terms and conditions of this Purchase Agreement and the documents incorporated by reference in this Purchase Agreement.
4. Your (Pre)Order
The Products ordered by you will be prepared to any specifications detailed in the Pre-order or Order. However, from time to time, certain Products will not be available or may not be available for a certain period of time. If this is the case, we will contact you to confirm available alternatives. We reserve the right to cancel the Pre-order if the Product is permanently unavailable.
If you select any alternative Products because the original Products ordered by you are or become unavailable at or after the time of placing your Pre-order or Order with us, we will use commercially reasonable efforts to provide these alternative Products without delays to your original shipping estimate.
You may also contact us to request a change to your Pre-order or Order prior to shipment. It is at our full discretion whether we allow changes once you have submitted the Pre-order or Order to us. If we accept any changes, this may result in delays in the shipping and handling of the relevant Products.
You will be required to pay any shortfall between the original Purchase Price and the Purchase Price of any alternative Products selected by you. You will be provided with a partial refund if the Purchase Price of the alternative Products is lower than the original Purchase Price.
If any alternative Products are selected by you, our supply to you of those Products will be governed by this Purchase Agreement.
5. Payment, Cancellation and Returns
The Purchase Price payable will be specified on your Pre-order or Order, including as updated. The Purchase Price will include shipping costs and any sales or similar tax applicable.
We hope you are delighted with your purchase from Foil Drive. However, we understand if you wish to return any or all of the Products. You can return Products if you are not satisfied, or you just change your mind within 14 days of receipt in the original package and without broken seal and in accordance with our Return and Refund Policy that can be found on our Website. While we do our best to always accept Orders, we may 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; or
· we discover that there was an error on our Website relating to the Products you ordered, for example as regards the price or description displayed; the Products you ordered are out of stock or no longer available; or we have reasonable grounds to believe that you intend to resell the Products.
If we cannot accept your Order we will contact you by email as soon as practically possible but in any case, no later than 30 days from the date of your Order. 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 Website, we will refund you any money you may have already been charged for such Products.
6. Shipping, import duties and other costs
Products ordered by you will be delivered to the address contained in your Pre-order or Order.
Shipping costs are charged directly to you at the time of ordering and are included in your order confirmation, additional to the purchase price of Products. Return costs are your responsibility.
Please note that we may not be able to guarantee shipping to all locations and will contact you if necessary to discuss shipping options with you.
7. Shipping Date
Any shipment or delivery times given to or discussed with you are estimates only and are not binding on us. We work closely with our logistics partners to ensure clarity regarding shipping times but cannot give any guarantees as to any shipment or delivery times.
All shipment and delivery times are subject to change due to the availability and service of our logistics partners. All shipment and delivery estimates may also be negatively impacted by unforeseen action or circumstance beyond our control (otherwise known as “Force Majeure” events).
9. Liability and Warranty
Your purchase with us will be governed by the terms of our Warranty, as annexed to this Purchase Agreement.
FOIL DRIVE WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, LOST DATA AND COVER DAMAGES), ARISING UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
FOIL DRIVE’S ENTIRE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO FOIL DRIVE UNDER THE PRE-ORDER OR ORDER WHICH GIVES RISE TO THE LIABILITY.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
We cannot be held responsible for delays or failure to perform our obligations under this Purchase Agreement if such delay or failure is caused by any circumstances beyond our reasonable control, including, for example, natural disasters, war or civil disturbances, strikes, government intervention, failures of our supplier(s), failure by you to give us a correct information or to effect due payments. We will inform you of any such unforeseen events as soon as possible after they occur and we will do our best to reduce their impact on our performance as reasonably possible. Should this interruption continue beyond a period of 2 weeks, you will be entitled to cancel the Order and get a refund.
Nothing in this Purchase Agreement shall exclude or limit any liability of Foil Drive that cannot be excluded or limited pursuant to the applicable law.
10. Title and risk
Risk of loss and title in the Products purchased by you will pass to you once the Products have been delivered to you.
11. User guide and representations
You will be provided with a user guide and other instruction material, including (where relevant) links to online materials, when you receive your Products, and from time to time as provided to you as we update or refine our materials. These materials contain instructions for safety, operation and maintenance of the Products according to product safety law regulations. You acknowledge that it is essential to read and follow all of the instructions and warnings in these materials prior to assembly, setup or use, in order to operate the Products correctly and avoid damage, serious injury or death. If you cannot read these materials, or do not understand them, you must contact us for additional information or assistance, before assembling, setting up or using the Products. We cannot be held liable for incorrect or unauthorized use of the Products.
If you are purchasing products for resale or distribution, as a dealer, school, or otherwise, you agree that other than what we have told you in writing about the Products, or what is contained in any other agreement between you and us or otherwise contained on the Website, you must not make any representations or statements about the Products to any third party. You indemnify us against any third party claims in respect of any representations or statements that you make beyond those contained in the material referred to in this paragraph.
12. Registrations and other authorizations
It may be that in the jurisdiction (including state, territory or local council) you wish to own or operate the Products, certain registrations, licenses and other authorisations are required.
We make no representation as to whether any use of the Products requires any such authorisation, and you should consult all applicable local laws prior to using the Products. We cannot be held liable for any of the above.
13. Privacy
Any personal information you provide to us will be handled in accordance with our privacy policy, accessible on our Website and applicable mandatory privacy law and regulations.
14. Liability Waiver
. You acknowledge that the product purchased is inherently high-risk and may cause injury, damage, or other adverse effects if used improperly or even under normal conditions.
We provide instructions for use and care of the Products with each purchase. Using the Products at all times in conformity with all instructions, manuals, user guides, and other materials will significantly reduce the risk of harm to you and any person using the Products with you. You are responsible to familiarise yourself with all instruction and safety materials.
You voluntarily assume all risks associated with the use of the product, including known and unknown risks, even if arising from the negligence of Foil Drive, except in cases of gross negligence or willful misconduct.
You further acknowledge and agree that due to the nature of the activities associated with the Products, it would be unreasonable for us to be in any way responsible for any injury to you or any person that uses the Products, including the death of you or any person that uses the Products. To the fullest extent permitted by applicable law, you hereby waive, release, and discharge Foil Drive and its officers, directors, employees, agents, and affiliates from any and all claims, liabilities, damages, injury, death, property damage or other losses arising from or related to the use of the product by you or any other person. This waiver includes (without limitation) any right you or any other person might derive from our liability for any negligent or tortious act or omission, our breach of duty, or breach of contract or breach of statutory duty by us, our directors, employees or agents, to the extent permitted by applicable law.
This waiver is binding on you, and your executors, heirs, legal personal representative and your estate, and we will rely on this waiver, to the extent permitted by applicable law.
You agree to indemnify and hold harmless Foil Drive and its officers, directors, employees, agents, and affiliates from any and all claims or actions brought by third parties, and all resulting damages or liabilities, arising from your use or misuse of the product.
15. No exclusions
For the avoidance of doubt, nothing in this Purchase Agreement excludes, restricts or modifies or has the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by any applicable local law that, by law, cannot be excluded, restricted or modified.
16. Applicable law and jurisdiction
This Agreement and any dispute or claim arising out of it or in connection with it, is exclusively governed by the laws of the State of [Governing State], without regard to its conflict of law principles. The application of the UN Convention on the International Sale of Goods (CISG) is expressly excluded from this Agreement. The parties hereby consent to the exclusive jurisdiction and venue of the state or federal courts located in [City/State] in respect of any dispute that may arise as a result of or in connection with this Agreement. The parties shall not contest or challenge the jurisdiction or venue of such courts, and both parties consent to extra-territorial service of process.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING IN CONNECTION WITH THIS PURCHASE AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN.
17. Severance
If at any time any provision of this Purchase Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, that will not affect or impair: the legality, validity or enforceability in that jurisdiction of any other provision of this Purchase Agreement; or the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of this Purchase Agreement.
18. No Waiver
Failure by either Party to exercise any right or remedy under this Agreement will not be deemed a waiver of such right or remedy unless in writing signed by such Party, nor shall any waiver be implied from the acceptance of any payment. No waiver by either Party of any right shall extend to or affect any other right, nor shall a waiver by either Party of any breach extend to any subsequent similar or dissimilar breach.
19. No Third Party Beneficiaries
This Agreement shall be for the benefit of the Parties and not for the benefit of any third party beneficiary.
20. Entire Agreement
This Purchase Agreement and the documents incorporated by reference supersede all prior written or oral statements between you and Foil Drive and constitute the entire and only agreement between us relating to the Products. Any alternative terms proposed by you or incorporated in any purchase order or other document shall be deemed void and of no effect.
WARRANTY POLICY
What this Warranty covers
This Warranty applies to all Foil Drive Products sold by Foil Drive and any authorized dealer or reseller of Foil Drive (collectively referred to as ‘Foil Drive’ in this Warranty).
Foil Drive warrants that its Products will be free of defects in material and workmanship in the normal use of the Product for the Warranty period set out below.
EXCEPT AS EXPRESSLY PROVIDED IN THE WARRANTY POLICY, FOIL DRIVE DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE FOIL DIVE PRODUCTS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
How long this Warranty lasts
Your Warranty lasts for 2 years from the date your Product(s) are delivered to you.
Who can make a Warranty claim
You can make a Warranty claim if you are the original owner of the Product, and it is within the Warranty terms and period, and no exclusions apply (see below).
Please keep the invoice for your purchase for reference.
How we will honor your Warranty
If you think you have a Warranty claim, please contact us using the details below. We will step you through the process of determining whether you have a valid Warranty claim. This will usually involve working with you via photographs and videos to assess the nature and extent of the issue.
All Warranty determinations will be made by us in accordance with this Warranty and will be final. When a Warranty claim is valid and none of the exclusions below apply, Foil Drive will take one of the following actions, at our discretion:
· Supply you with a replacement product (in the case of a part, a replacement of the relevant part which is defective) free of charge, in the same quantity as was initially purchased, as long as the same exact item is still available;
· Repair the defective product without charge; or
· Issue a credit for the amount paid for the Product (excluding shipping).
If you have a valid Warranty claim, Foil Drive will pay for any associated shipping costs, which may be costs associated with sending the Product to an authorized Foil Drive Dealer or to Foil Drive directly.
If we receive a product submitted to us under a Warranty claim and we determine, upon inspection, that it is not a valid Warranty claim, we may require that you pay for the costs of shipping the Product both to us and return to you, before we return the Product to you. We may also advise you of any service charges if we determine a service is recommended for the product but will not conduct any service work until you have approved us doing so.
What this Warranty does not cover: exclusions
This Warranty does not cover:
· damage caused by vandalism, maltreatment, interference and neglect of the Product from the delivery date;
· damage resulting from use that does not follow the care and maintenance conditions provided by Foil Drive;
· damage resulting from maintenance that is not in accordance or compliance with the Foil Drive maintenance content;
· damage caused by the use of accessories that are not manufactured or otherwise approved by Foil Drive;
· a Product in which the seal of any kind is broken;
· damage resulting from use of the Product for which it is not designed;
· a product that has been modified or repaired by someone other than by Foil Drive or a person authorized by Foil Drive to do so;
· personal injury, death, property damage or economic loss, however caused, to the extent permitted by applicable law;
· Warranty claims made during the warranty period which are notified to us more than two (2) months from when you became aware of the defect or material damage or from when a reasonable person should have become aware of the defect or material damage;
· damage caused by or resulting from normal wear and tear, natural breakdown of colors and materials over extended time and use, negligent use, wilful misconduct or malicious or improper use, including but not limited to errors or omissions made by you or another person using the Product, use in unsafe locations, and/or use in unsafe conditions, such as inclement weather or otherwise not in accordance with the Product manual(s) and/or instructions provided with the product.
Foil Drive reserves the right to alter its Product specifications, manuals and/or instructions and introduce improvements at any time.
Local laws may have different requirements
Nothing in this Warranty excludes or restricts statutory guarantees that cannot be excluded under local laws. This Warranty should be read subject to the provisions of all relevant local laws, and, where required, Foil Drive will honor its obligations under those laws.
How to contact us for warranty service
Warranty service is available by contacting Foil Drive Americas Inc. on the details below.
Head Office: Foil Drive Americas Inc.
Address: 136 Madison Avenue, Floors 5 & 6 New York, NY 10016
Phone: US Number to Aus HQ: +1 786 471 2791
AUS HQ: +61 8 7100 1610
Email: support.us@foildrive.com
Foil Drive requires the following documentation to verify and support your Warranty:
· the receipt of purchase or the delivery receipt;
· the invoice number of the purchase;
· the Customer’s name and address;
· a description of the defect to the Product accompanied with photos or videos; and
· any further information reasonably requested by Foil Drive to verify and support the Warranty claim.
Foil Drive reserves the right to charge the customer claiming the Warranty for the reasonable delivery costs to supply the replacement product if Foil Drive initially accepts their Warranty claim and later determines after investigation that the claim is not covered under the Warranty. If a Warranty claim is not accepted, the person making the Warranty claim will have to collect, or arrange for an authorized third party to collect, the product or have the product otherwise returned at their own cost.
