Terms and conditions

TERMS AND CONDITIONS OF SALE

1.         Applicability and Waiver of Rights.

(a)        THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING BUYER’S RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO BUYER. PLEASE READ IT CAREFULLY.

(b)      BY PLACING AN ORDER FOR PRODUCTS, BUYER  AFFIRMS TO BE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND IN CASE OF ACTING ON BEHALF OF AN ENTITY, BUYER AFFIRMS TO BE AUTHORIZED TO ACT ON BEHALF OF SUCH ENTITY, AND BUYER ACCEPTS AND IS BOUND BY THESE TERMS AND CONDITIONS .

(c)       BUYER MAY NOT ORDER OR OBTAIN PRODUCTS FROM THE SELLER IF BUYER (A) DOES NOT AGREE TO THESE TERMS, (B) IS NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH FORMASTER OR (iii) IN CASE OF ACTING ON BEHALF OF AN ENTITY IF HE/SHE IS NOT ENTITLED TO ACT ON BEHALF OF SUCH ENTITY.

(d)  These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of any goods (“Goods”) by Dafi LLC – a Florida entity (“Dafi”, the “Seller”, or “our” as the context may require) to the buyer named on the reverse side of these Terms, in any buyer’s purchase order for the Goods and to the buyer named in an invoice referencing the Goods (“Buyer”).   

2.         Order Acceptance.

(a)        Buyer agrees that his/her order is an offer to buy, under these Terms, all Goods listed in the order. All orders must be accepted by Seller or Seller will not be obligated to sell the products to Buyer. Seller may choose not to accept orders at its sole discretion, even after sending Buyer a confirmation email (“Order Acknowledgment”) with the order number and details of the items you have ordered. 

(b)      Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.

(c)        The accompanying invoice (if any), Order Acknowledgment and these Terms, (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.

3.         Placing the order.

(a)        Upon receiving the order from Buyer, Seller, in its sole discretion, may accept the order by issuing and providing Buyer with an Order Acknowledgement that confirms all details of the order placed (including, but not limited to: units, styles ordered, earned discounts and shipping window).

(b)       Buyer cannot cancel any order after placed.  Seller may cancel or refuse to accept any purchase order of Buyer at any time in its sole discretion.

4.         Price

(a)        Buyer shall purchase the Goods from the Seller at the price (the “Price”) posted on the Site. Such price is subject to change without notice. The price charged for Goods will be the price in effect at the time the order is placed and will be set out in the Order Acknowledgment email. Price increases will only apply to orders placed after such changes. Seller strives to display accurate price information, however, the Seller may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. Seller reserves the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.

(b)       All Prices are exclusive of all sales, use, excise taxes, and any other similar taxes imposed by any governmental authority on any amounts payable by Buyer; however, Seller shall be responsible for any customs duty imposed by the United States, if applicable. Buyer shall be responsible for all such charges, costs and taxes.

5.         Payment Terms.

(a)        Terms of payment are within Seller’s sole discretion and payment must be received by Seller before Seller’s acceptance of an order. Seller accepts all debit card payments (Visa, MasterCard, American Express, Discovery) and PayPal payments for all purchases. Buyer represents and warrants that (i) the credit card information Buyer supplies thereto is true, correct and complete, (ii) Buyer is duly authorized to use such credit card for the purchase, (iii) charges incurred by Buyer will be honored by his/her credit card company, and (iv) Buyer will pay charges incurred thereby at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Site at the time of your order.

(b)       Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.

6.         Delivery. 

(a)       Seller shall not be liable for any delays, loss or damage in transit of any Goods.

(b)       Seller will arrange for shipment of Goods to Buyer to the location indicated by Buyer (the “Delivery Point”) in the United States, assuming delivery is reasonably feasible to such location. Buyer shall check the individual product page for specific delivery options. Buyer will pay all shipping and handling charges specified during the ordering process. Shipping and handling charges are reimbursement for the costs Seller incurs in the processing, handling, packing, shipping, and delivery of Buyer’s order.

(c)        Shipping and delivery dates are estimates only and cannot be guaranteed. Seller is not liable for any delays in shipments.

(d)       Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.

(e)        If for any reason Buyer fails to accept delivery of any of the Goods upon delivery, or if Seller is unable to deliver the Goods at the Delivery Point on the date specified for delivery because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and  (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

7.         Shipping Terms. Delivery of Goods shall be FOB (Shipping Point). 

8.         Title and Risk of Loss.  Title and risk of loss of the Goods passes to Buyer upon delivery of the Goods to the carrier.

9.            Inspection and Rejection of Nonconforming Goods

(a)        Buyer shall inspect the Goods within 7 days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless he/she notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s order; or (ii) product’s label or packaging incorrectly identifies its contents.

(b)       If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Delivery Point. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.

(c)        Buyer acknowledges and agrees that the remedies set forth in Section 9(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 9(b), all sales of Goods to Buyer are made on a one-way basis and, unless parties agreed otherwise, Buyer has no right to return Goods purchased under this Agreement to Seller.

10.       Limited Warranty.

this limited warranty gives buyer specific legal rights, and buyer may have other rights, which vary from state to state. 

(a)       Seller warrants to Buyer that for a period of [NUMBER] months from the date of shipment of the Goods (“Warranty Period”), SUCH GOODS WILL BE FREE FROM MATERIAL DEFECTS IN MATERIAL AND WORKMANSHIP.

(B)       EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 10(A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, IN ANY CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. SELLER LIMITS THE DURATION AND REMEDIES OF ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE DURATION OF THE WARRANTY PERIOD.  SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

(c)       Seller shall not be liable for a breach of the limited warranty set forth in Section 10(a) unless:  (i)    Buyer gives written notice of the defect, reasonably described, to Seller within 3 days of the time when Buyer discovers or ought to have discovered the defect;  (ii)      Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to a place designated by Seller for the examination to take place there; and  (iii)   Seller reasonably verifies Buyer’s claim that the Goods are defective.

(d)      This Limited Warranty extends only to the original purchaser of Goods from the Site. It does not extend to any subsequent or other owner or transferee of Goods.

(e)       With respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller. THE REMEDIES SET FORTH IN SECTION 10(E) SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(A).

(f)      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; (vi) unauthorized repair; (vii) normal wear and tear.

11.       Limitation of Liability.

(A)     THE REMEDIES DESCRIBED ABOVE ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF THIS LIMITED WARRANTY TO BUYER OR ANY THIRD PARTY. OUR LIABILITY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY BUYER FOR THE DEFECTIVE GOODS THAT YOU HAVE PURCHASED FROM FORMASTER, NOR WILL WE UNDER ANY CIRCUMSTANCES BE LIABLE FOR LOSSES, WHETHER DIRECT OR INDIRECT, ANY LOSS OF PRODUCTION, WORK, DATA, USE, BUSINESS, GOODWILL, REPUTATION, REVENUE OR PROFIT, ANY DIMINUTION IN VALUE, COSTS OF REPLACEMENT GOODS OR SERVICES, LABOR COST OR ANY OTHER COSTS HOWEVER RELATED TO REMOVAL OR INSTALLATION OF EITHER THE ORIGINAL OR REPLACEMENT PRODUCT OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT FORMASTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(B) 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.

12.       Privacy. Our Privacy Policy, www.dafi.us  governs the processing of all personal data collected from you in connection with your purchase of products or services through the Site.

13.       Waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

14.       Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller 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 either party’s 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. 

15.       Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

16.       No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

17.       Governing Law. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Florida, USA, without giving effect to any choice or conflict of law provision or rule of the State of Florida (or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Florida.

18.         Dispute Resolution and Binding Arbitration.

(A)       BUYER AND SELLER ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT BUYER WOULD HAVE IF HE/SHE WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.

ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN BUYER AND SELLER ARISING FROM OR RELATING IN ANY WAY TO BUYER’S PURCHASE OF PRODUCTS THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.

 

(b)       The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this Section 18. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.

The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.

(c)        Buyer agrees to an arbitration on an individual basis. In any dispute, NEITHER BUYER  NOR SELLER WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. 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 has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.

If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.

19.       Severability. If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms not so determined to be invalid or unenforceable, and each such other provision shall, to the full extent consistent with applicable law, continue in full force and effect, irrespective of such invalid or unenforceable provision.

20.     Language.  This Agreement was drawn up in English and Polish languages. In the event of a conflict of interpretation, the English version shall be conclusive and binding upon the parties.