Terms and Conditions
LAST UPDATED DATE: APRIL 17, 2017
IMPORTANT – PLEASE READ THESE TERMS AND CONDITIONS FOR THE ONLINE PURCHASE OF PRODUCTS AND SERVICES (“AGREEMENT”) CAREFULLY.
BY CLICKING THE “ACCEPT” BUTTON WHEN PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM THIS WEBSITE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IF YOU PLACE AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY, YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS SET FORTH BELOW, YOU MUST NOT CLICK ON THE “ACCEPT” BUTTON AND YOU MUST NOT ORDER ANY PRODUCTS OR SERVICES FROM THIS WEBSITE.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.
The terms and conditions of this Agreement apply to the purchase and sale of products and services through NoaBrandsDirect.com (the "Site"). This Agreement is subject to change by NOA Brands America, Inc. (referred to as "us," "we," or "our" as the context may require) without prior written notice at any time, in our sole discretion. Any changes to this Agreement will be in effect as of the "Last Updated Date" referenced above. You should review this Agreement prior to purchasing any product or services that are available through this Site. Your continued use of this Site after the "Last Updated Date" will constitute your acceptance of and agreement to such changes.
- Products and Services. You understand that certain products or services may be available exclusively online through our Site and may have limited quantities. You further understand that we have made every effort to display as accurately as possible the colors and images of our products that appear on our Site, however, we cannot guarantee that your computer monitor's display of any color will be accurate.
- Order Acceptance and Cancellation. You agree that your order is an offer to buy, under this Agreement, all products and services listed in your order. All orders must be accepted by us or we will not be obligated to sell the products or services to you. We may choose not to accept orders at our sole discretion, even after we send you a confirmation email with your order number and details of the items you have ordered.
Prices and Payment Terms.
- All prices, discounts, and promotions posted on this Site are subject to change without notice. The price charged for a product or service will be the price advertised on this Site at the time the order is placed, subject to the terms of any promotions or discounts that may be applicable. The price charged will be clearly stated in your order confirmation email. Price increases will only apply to orders placed after the time of the increase. Posted prices do not include taxes or charges for shipping and handling, or customs and duties if applicable. All such taxes and charges will be added to your total price, and will be itemized in your shopping cart and in your order confirmation email. We strive to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
- Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. We accept VISA, MASTERCARD, DISCOVER, AND AMERICAN EXPRESS for all purchases. You represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, customs and duties, if any, regardless of the amount quoted on the Site at the time of your order.
Shipments; Delivery; Title and Risk of Loss.
- Product ordered under this Agreement shall be delivered FOB our distribution center in El Paso, Texas (“NBA’s Facility”). We will arrange for shipment of the products to you, based on the shipping option you select during the checkout process. You will pay all shipping and handling charges unless otherwise specified in the order confirmation.
- Title and risk of loss of the products shall pass from us to you FOB NBA’s Facility. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
- Returns and Refunds. SUBJECT TO THE PROVISIONS OF SECTION 6 BELOW, ALL SALES ARE FINAL, AND ALL PRODUCTS AND SERVICES ARE NON-RETURNABLE, NON-EXCHANGEABLE AND NON-REFUNDABLE.
- Subject to the provisions of this Section 6, we warrant to you that for a period of one (1) year from the date of shipment ("Warranty Period"), the products purchased through the Site will (i) materially conform to our published specifications in effect as of the date of manufacture and, if applicable, to the specifications provided by you and agreed to by us, in writing; and (ii) be free from material defects in workmanship.
- We shall not be liable for a breach of the warranties set forth in this Section 6 unless: (i) you give written notice to us of the defective products, reasonably described, within the Warranty Period; (ii) we are given a reasonable opportunity after receiving the notice of breach of the warranty to examine such products and you (if we so request) return such products to our place of business at your cost for the examination to take place there; and (iii) we reasonably verify your claim that the products are defective.
- We shall not be liable for a breach of the warranty set forth in this Section 6 if: (i) the products have been abused, damaged, altered, misused, modified, adjusted, repaired or serviced after title has transferred to you by any party other than us; (ii) the products have been improperly, set-up, installed or maintained; (iii) the defects are a result of accidents, tampering, or ordinary wear and tear; (iv) the design defects or defects result from the provision by you of inadequate specifications for such products to us; (v) the products have been used with products not provided by us or approved by us for use with such products; or (vi) you make any further use of such products after you give such notice.
- With respect to any products found by us to be defective during the Warranty Period and covered by the limited warranty set forth herein, we shall, in our sole discretion, either: (i) repair or replace such products (or the defective part), or (ii) credit or refund the amounts paid by you for such products provided that, if we so request, you shall, at your expense, return such products to us.
- EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 6, WE MAKE NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS OR SERVICES PURCHASED THROUGH THE SITE, 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; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
- THE REMEDIES SET FORTH IN THIS SECTION 6 SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN THIS SECTION.
- NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ANY AND ALL PRODUCTS PROVIDED AT A REDUCED OR DISCOUNTED PRICE (“DISCOUNTED PRODUCTS”), ARE SOLD TO YOU AS-IS, WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWIS YOU ASSUME FULL RESPONSIBILITY FOR ALL DISCOUNTED PRODUCTS.
Limitation of Liability.
- IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, 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 WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID BY YOU FOR THE PRODUCTS AND SERVICES SOLD THROUGH THE SITE.
- Goods Not for Resale or Export. You represent and warrant that you are buying products or services from the Site for your own use only, and not for resale or export.
- Intellectual Property Use and Ownership. You acknowledge and agree that:
As between you and NOA Brands America, Inc., we are and will remain the sole and exclusive owner of all intellectual property rights in and to each product and service made available on this Site and any related specifications, instructions, documentation or other materials, including, but not limited to, all related copyrights, patents, and trademarks and other intellectual property rights. You do not and will not have or acquire any ownership of these intellectual property rights in or to the products or services made available through this Site, or of any intellectual property rights relating to those products or services.
- Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in our performance under this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, 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 our 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.
- Governing Law and Jurisdiction. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Colorado.
Waiver of Jury Trials and Binding Arbitration.
- YOU AND NOA BRANDS AMERICA, INC., ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU 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 YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
- The arbitration will be administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules and Mediation Procedures ("Commercial Rules") including, if appropriate, the International Commercial Arbitration Supplementary Procedures.
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.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
- Assignment. You will not assign any of your rights or delegate any of your obligations under this Agreement without our prior written consent. Any purported assignment or delegation in violation of this Section 14 is null and void. No assignment or delegation relieves you of any of your obligations under this Agreement.
- No Waivers. The failure by us to enforce any right or provision of this Agreement will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of NOA Brands America, Inc.
- No Third-Party Beneficiaries. This Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than you.
- To You. We may provide any notice to you under this Agreement by: (i) sending a message to the e-mail address you provide or (ii) posting to the Site. Notices sent by e-mail will be effective when we send the e-mail and notices we provide by posting will be effective upon posting. It is your responsibility to keep your e-mail address current.
- To Us. To give us notice under this Agreement, you must contact us as follows: (i) by email delivered to: email@example.com; or (ii) by personal delivery, overnight courier or registered or certified mail to 1460 Overlook Drive, Lafayette, CO 80026. We may update the email address or physical address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by email transmission or overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
- Severability. If any provision of this Agreement is invalid, illegal, void or unenforceable, then that provision will be deemed severed from this Agreement and will not affect the validity or enforceability of the remaining provisions of this Agreement.