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TERMS AND CONDITIONS OF SALE
Unless otherwise specifically agreed to in writing by an authorized representative of Seller, these Terms and Conditions of Sale (these “Terms”) shall apply to any purchase and sale of products (“Products”) through Seller’s website at tourandride.com (the “Website”). “Buyer” or “you” means the individual or entity who has purchased Products through the Website. “Seller,” “we,” “us” and “our” means Tour & Ride, Inc., a North Carolina corporation. These Terms are subject to change at any time without prior notice to you and in our sole discretion. The latest version of these Terms will be posted on the Website, and you should review these Terms before purchasing any Products.
1. Products, Content and Specifications. All features, content, specifications, Products and prices of Products described or depicted on the Website are subject to change at any time without notice. Certain weights, measurements and similar descriptions are approximate and are provided for convenience purposes only. Seller makes no representation as to the completeness, accuracy or currentness of any information on the Website. The inclusion of any Products on the Website at a particular time does not imply or warrant that these Products will be available at such time. It is Buyer’s responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any Products purchased on the Website. By placing an order, you represent that the Products ordered will be used only in a lawful manner.
2. Order Acceptance. All orders received from you are subject to acceptance by Seller, and Seller reserves the right, in its sole discretion, not to accept any order. Acceptance of any order is subject to the availability of the ordered Products and the ability of Seller to deliver such Products. Upon receipt of your order, Seller will deliver a confirmation e-mail to you with your order number and the details of the Products you have ordered. The receipt of an order confirmation does not constitute Seller’s acceptance of an order. Seller may require verification of information prior to the acceptance and/or shipment of any order. Seller’s acceptance of an order shall be evidenced by its shipment of the ordered Products. Unless Seller expressly agrees in writing, these Terms will govern all purchases of Products, and Seller’s acceptance of any order submitted by Buyer is conditioned on Buyer’s acceptance of these Terms.
3. Prices. All prices posted on the Website are quoted F.O.B. Seller’s facility, unless otherwise agreed in writing. The price charged for a Product 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 apply only to orders placed after such changes. Prices do not include any cost of freight, insurance, special packaging or insulation, any cost of inspection, permits or other compliance with governmental laws and regulations, or any federal, state or municipal sales, use, excise, customs or other similar taxes, duties or fees, or any other charges, all of which must be paid by the Buyer. 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.
4. Payment. When you purchase a Product, you must select an electronic payment method (e.g., credit card, debit card, PayPal) (the “Payment Method”). You must ensure that your Payment Method is, and remains, valid. By purchasing a Product, you authorize Seller (or its third-party payment processor) to charge the applicable purchase price and any applicable taxes and other fees using your Payment Method. Except as otherwise set forth herein, all amounts once paid are non-refundable.
5. Terms of Shipment; Title and Risk of Loss. Seller will ship the Products F.O.B. Seller’s facility to the address provided by Buyer. Buyer acknowledges that all shipping and delivery dates are Seller’s estimate of such dates based upon conditions existing at the time the order is placed and on information furnished by Buyer and are not firm commitments. Seller will endeavor to ship Products by the estimated shipping date but shall not be responsible for any delay or damages arising from any failure to ship by the estimated shipping date. Time is not of the essence with respect to the transactions covered by these Terms. Seller will not be liable for any delay in shipping or performance or non-delivery for any reason, including but not limited to, any delay or non-delivery caused directly or indirectly by a Force Majeure Event (as defined in Section 11). Buyer agrees that any delay in delivery or failure to deliver or perform any part of these Terms shall not be grounds for Buyer to terminate or refuse to comply with any provisions hereof and no claim or penalty shall be effective against Seller for such delay. Seller may, in its sole discretion and without liability or penalty, make partial shipments of Products to Buyer. Title to and risk of loss for the ordered Products passes to Buyer upon delivery to the carrier.
6. Returned Products. Except as set forth below, Buyer may return a purchased Product for a refund of the purchase price, less the original shipping and handling charges (if any), provided that such return is made within 30 days of delivery and such Product is returned in a new, resalable condition and packaged in the original container with all tags included. Seller may charge a 15% restocking fee for any returned Products that are damaged due to improper packaging. To return a Product, Buyer must call 775-359-8687 or e-mail Seller at email@example.com to obtain a Return Materials Authorization (“RMA”) number before shipping such Product. No returns of any type will be accepted without an RMA number. Buyer will be responsible for all shipping, handling, freight, brokerage and customs charges on any returned Products. All return shipments must be prepaid by Buyer, and any Products shipped C.O.D. will be rejected. Once a returned Product has been inspected and Seller has determined that Buyer has complied with the requirements of this Section 6 (as determined in Seller’s sole discretion), Buyer’s refund will be processed and a credit will be applied to Buyer’s chosen Payment Method. Notwithstanding the foregoing, the following Products may not be returned: (i) Products that have been installed or combined with other products or equipment, including installed electrical items; (ii) Products that have been used or that are no longer in the condition in which they were received; (iii) motorcycle or scooter helmets or other protective headgear; and (iv) any Products designated on the Website as non-returnable at the time of purchase.
7. No Warranties. Buyer acknowledges that Seller is not the original manufacturer of the Products and does not offer any warranties for any Products sold. Buyer should review each manufacturer’s warranty policy to determine the existence and scope of any applicable warranties. SELLER HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, RELATING DIRECTLY OR INDIRECTLY TO THE PRODUCTS, WHETHER ORAL, WRITTEN OR ARISING BY COURSE OF DEALING OR USAGE OF TRADE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SELLER OR ANY EMPLOYEE, AGENT, DEALER OR OTHER SUPPLIER OF SELLER’S PRODUCTS SHALL CREATE ANY WARRANTY COVERING, RELATED TO OR IN RESPECT OF THE PRODUCTS.
8. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, MULTIPLE OR PUNITIVE DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY, INCLUDING, WITHOUT LIMITATION, LABOR OR EQUIPMENT REQUIRED TO REMOVE AND/OR REINSTALL ORIGINAL OR REPLACEMENT PARTS, LOSS OF TIME, PROFITS OR REVENUES, LACK OR LOSS OF PRODUCTIVITY, LOSS OF USE OF THE PRODUCTS OR ANY ASSOCIATED EQUIPMENT, COST OF SUBSTITUTE EQUIPMENT, FACILITIES, SYSTEMS OR SERVICES OR DOWNTIME COSTS, DAMAGE TO OR LOSS OF PROPERTY OR EQUIPMENT, ANY INCONVENIENCE, COST OR DAMAGE ARISING OUT OF ANY DELAY IN PERFORMING OR FAILURE TO PERFORM OR CLAIMS OF THIRD PARTIES AGAINST BUYER ARISING OUT OF OR IN CONNECTION WITH THE SALE, USE OF, INABILITY TO USE, OR THE REPAIR OR REPLACEMENT OF THE PRODUCTS SOLD PURSUANT TO THESE TERMS. 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. IN NO EVENT SHALL SELLER’S TOTAL LIABILITY (INCLUDING, WITHOUT LIMITATION, LIABILITY FOR PERSONAL INJURY, PAIN AND SUFFERING OR EMOTIONAL DISTRESS) IN RESPECT OF ANY AND ALL CLAIMS OF ANY KIND, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH, OR RESULTING FROM, SELLER'S SALE, DELIVERY, RESALE, REPAIR, REPLACEMENT OR FURNISHING OF ANY PRODUCTS OR BUYER’S USE THEREOF EXCEED THE PURCHASE PRICE ALLOCABLE TO THE PRODUCT(S) THAT GAVE RISE TO THE CLAIM.
9. General Indemnity. Buyer agrees to indemnify, defend and hold Seller and its affiliates, employees, representatives and agents harmless from and against any and all claims, demands, suits, actions and proceedings and any and all losses, damages, costs and expenses (including attorneys’ fees) arising therefrom to the extent arising out of or related to (i) Buyer’s breach of these Terms, (ii) Buyer’s negligence or willful misconduct, or (iii) any personal injury, property damage or death caused by an act or omission of Buyer or its employees, agents or representatives (if applicable).
10. Intellectual Property Rights. As between Buyer and Seller, Seller shall retain all right, title and interest in and to all patents, copyrights, trade secrets, trade names, trademarks, service marks, designs and other intellectual property rights embedded in or relating to the Products (collectively, “Seller Intellectual Property”). Buyer hereby acknowledges and agrees that all right, title and interest in and to the Seller Intellectual Property shall remain exclusively with Seller, subject only to the rights Seller explicitly grants Buyer herein. To the extent Seller develops any enhancements, modifications, alterations or improvements to any of the Products based upon ideas or suggestions communicated by Buyer to Seller, Buyer hereby irrevocably assigns its rights to such ideas or suggestions to Seller, together with all intellectual property rights relating thereto. Buyer agrees to indemnify, defend and hold Seller harmless from and against any and all damages, costs and expenses (including attorneys’ fees) related to any claim arising from or related to (a) the design, distribution, manufacture, marketing, sale, or use of a Product or (b) a claim that a Product furnished to Buyer by Seller, or the use thereof, infringes any foreign or domestic patent, in each case to the extent that such claim arises from or is related to (i) any modifications by Buyer to such Product or any part(s) thereof, or (ii) the combination of such Product or any part(s) thereof with any other parts, equipment, products or goods. Buyer agrees to undertake at its own expense the defense of any suit against Seller brought as a result of any such claim.
11. Force Majeure. Seller shall not be responsible for any delay or failure in performance of any part of these Terms or delivery of the Products to the extent such delay or failure is caused by an event beyond the reasonable control of Seller, including, without limitation, governmental action, fire, explosion, acts of God, flood, war, riot, accident, blockades, insurrections, riots, epidemics, pandemics, earthquakes, hurricanes, tornadoes, floods, abnormal snow or hail storms, labor trouble, shortages of labor or materials, increases in material costs, transportation difficulty, acts of the public enemy, or the existence of any circumstance making performance commercially impractical (each such event, a “Force Majeure Event”).
12. Compliance With Laws. Buyer shall comply with all laws and regulations applicable to the Products and Buyer’s use thereof, including, but not limited to, all applicable import and export laws and regulations. You represent and warrant that you are buying Products from the Website for your own personal use only, and not for resale or export.
13. No Waiver. Seller’s waiver of any breach of any provision contained in these Terms will not waive any other breach by Buyer. Seller’s delay or failure to enforce its rights under these Terms shall not be deemed a waiver of such rights.
14. Governing Law and Jurisdiction. These Terms and any dispute arising out of or related to these Terms or any Products shall be governed by the laws of the State of North Carolina, without regard to its conflicts of law rules. Buyer and Seller agree that these Terms are entered into in the State of North Carolina. BUYER HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE COURT LOCATED WITHIN MECKLENBURG COUNTY, NORTH CAROLINA, OR ANY FEDERAL COURT LOCATED IN THE STATE OF NORTH CAROLINA, WITH REGARD TO ANY CLAIMS THAT MAY BE BROUGHT IN COURT CONSISTENT WITH SECTION 15 BELOW. BUYER AGREES THAT ALL SERVICE OF PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL DIRECTED TO BUYER AT THE ADDRESS PROVIDED BY BUYER IN CONNECTION WITH BUYER’S ORDER. EXCEPT AS SET FORTH IN SECTION 15 BELOW, NOTHING IN THESE TERMS AFFECTS THE RIGHT OF SELLER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY ACTION OR PROCEEDING AGAINST BUYER IN THE COURTS OF ANY OTHER JURISDICTION THAT HAS JURISDICTION OVER BUYER. TO THE EXTENT PERMITTED BY LAW, BUYER HEREBY WAIVES TRIAL BY JURY AND WAIVES ANY OBJECTION THAT BUYER MAY HAVE BASED ON LACK OF JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THESE TERMS.
15. Arbitration; Class Action Waiver. ANY DISPUTE RELATING IN ANY WAY TO THESE TERMS, THE PRODUCTS, OR THE RELATIONSHIP BETWEEN THE PARTIES SHALL BE SUBMITTED TO CONFIDENTIAL ARBITRATION, AND BUYER AGREES TO SUBMIT TO THE JURISDICTION AND PROCEEDINGS THEREOF. ARBITRATION MEANS THAT A SINGLE ARBITRATOR WILL DECIDE ANY CLAIM, AND BUYER WILL NOT HAVE THE RIGHT TO SUE IN COURT OR TO HAVE A JUDGE OR JURY DECIDE ANY CLAIM. BUYER’S RIGHTS TO PREHEARING EXCHANGE OF INFORMATION AND APPEALS MAY ALSO BE LIMITED IN ARBITRATION. It is further agreed that any dispute over the scope of this arbitration provision and any dispute as to whether a claim is arbitral shall be submitted to the arbitrator for decision. However, to the extent Buyer has in any manner violated or threatened to violate Seller’s intellectual property rights or the intellectual property rights of Seller’s affiliates, partners or licensors or Seller otherwise has a cause of action in equity, Seller may seek injunctive or other appropriate relief in any court of competent jurisdiction and Buyer consents to jurisdiction and venue in any such court for such purposes. Arbitration under these Terms shall be conducted under the Consumer Arbitration Rules then prevailing with the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Terms shall be joined to an arbitration involving any other party subject to this Terms, whether through class arbitration proceedings or otherwise. Buyer agrees that any arbitration or proceeding shall be limited to the dispute between Seller and Buyer individually, and that (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. BUYER AGREES THAT BUYER MAY BRING CLAIMS AGAINST SELLER ONLY IN BUYER’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
16. Assignment. These Terms are binding upon, and shall inure to the benefit of, Buyer, Seller and their successors and permitted assigns. Buyer may not assign all or any portion of its rights or obligations hereunder without the prior written consent of Seller. Seller may assign, delegate or subcontract an order or any of its obligations under these Terms, in whole or in part, without Buyer’s consent.
17. Entire Agreement; Amendments. The entire agreement of Seller and Buyer is expressed exclusively in the terms, covenants and conditions set forth in these Terms and Seller’s e-mail confirmation of Buyer’s order. No agent, representative or employee of Seller has authority to agree, represent or warrant otherwise, except Seller’s officers, and then only in writing. These Terms supersede all other written or oral agreements between the parties. These Terms and any associated order confirmation may be amended or modified by Seller in its sole discretion. Buyer may not amend or modify these Terms or any order confirmation without Seller’s express written consent.
18. Severability. Any part of these Terms held to be invalid or unenforceable by a tribunal of competent jurisdiction shall be deemed ineffective to the extent thereof without affecting the validity or enforceability of any other part of these Terms.
19. Survival. Provisions of these Terms that by their nature should apply beyond any expiration or termination of these Terms shall remain in force after any termination or expiration of these Terms.
Effective August 25th, 2020