11. Entire Agreement
a) Entire Agreement. This Agreement, together with the Invoice and any other materials expressly referred to herein, constitutes the complete and exclusive statement of all of the terms, conditions, representations and warranties between you and Acuva with respect to the purchase and sale of any Product offered by Acuva, and supersedes and replaces all other oral and written communications between the parties or otherwise relating to the subject matter of this Agreement.
b) Amendments. This Agreement will not be and is incapable of being amended or varied, verbally or in writing, unless any such amendment or variation is in writing and signed by both you and a senior officer of Acuva in an instrument that expressly refers to this Agreement.
c) No Implicit Waiver or Novation. The failure by Acuva to insist on strict compliance with any provision of this Agreement will not be deemed to be a waiver of such provision, and a waiver of any provision of these terms and conditions at any one time or times will not be deemed to be a waiver for any other time. The failure of Acuva to assert its rights in a timely fashion for any of its rights or remedies under these terms and conditions will not be interpreted as a novation or a waiver of any subsequent or continuing breach and will not serve to modify, alter or restrict the right of Acuva to assert any rights at any time thereafter.
Terms & Conditions
These Terms and Conditions of Sale and Use (collectively, this “Agreement”) apply to all pre-orders, purchases and use of products (each a “Product”) manufactured, marketed, distributed and/or sold by Acuva Technologies Inc. (“Acuva”) from Acuva directly, authorized Acuva distributors or retailers (collectively, the “Store”) or via any website whose domain ends in “Acuvatech.com”, or such other websites and mobile applications as made available by Acuva and its affiliates and subsidiaries from time to time (the “Site”). In this Agreement, the buyer of any Product via the Site is referred to as “you”; accordingly, if the individual making the purchase is doing so on behalf of a corporation or other legal entity, he or she represents and warrants having the authority to do so and to bind such entity to this Agreement. Throughout this Agreement, “Residents of Québec” means residents of Québec who enter into a contract to which the Consumer Protection Act (Québec) applies.
This Agreement contains important terms that, among other things, affect Acuva’s liability and your legal remedies against Acuva. As a condition of purchase and sale for any Product, you agree to be bound by this Agreement, including the limited warranty, disclaimers of liability, limitations of liability and methods of resolving disputes. For Products purchased from Acuva directly or from the Store, by issuance of a receipt of purchase for any Product, you agree to be bound by this Agreement. For transactions via the Site, if you check the “I AGREE TO THE TERMS AND CONDITIONS OF SALE AND USE” option as part of the transaction in which this Agreement is presented, you agree to be bound by this Agreement. Please read this Agreement carefully, BEFORE you indicate your acceptance of this Agreement as part of a transaction.
Terms of Sale
1. Orders, Price and Payment
a) Price and Order. The total price for the Products you are purchasing will be stated on the purchase order or confirmation notice displayed at the last step of the ordering transaction before you confirm your purchase, and, upon your acceptance of the purchase order or confirmation notice as well as all of the terms and conditions of this Agreement, the purchase order or notice becomes your “Order”, which is an offer by you to Acuva to purchase such Products on the terms set out therein and this Agreement.
b) Availability. All Orders are subject to availability. When placing your Order, the confirmation notice will display whether the item is in-stock (an “In-Stock Product”), out-of-stock (an “OutOf-Stock Product”), or a pre-order (a “Pre-Ordered Product”).
c) Acceptance. Orders submitted by you are not binding upon Acuva until the Order is accepted by Acuva as indicated by Acuva’s acceptance of the Order and/or issuance of an invoice (an “Invoice”) to you for such Order, which issuance constitutes Acuva’s acceptance of your Order.
d) Merchant. Acuva may appoint a merchant of record (the “Merchant”), as indicated in your confirmation notice, as the merchant of record for the transaction. In such a case, the Merchant will accept payment, handle Orders, and handle shipments for and behalf of Acuva. Accordingly, your point of contact for dealing with Orders may be the Merchant and not Acuva directly; check your Invoice for more details.
e) Payment. Where payment for Orders is by credit card, full payment must be authorized by your credit card issuer before Acuva is legally obligated to fulfill any Order previously accepted under an Invoice. Your credit card will be charged when you place your Order. Acuva may from time to time accept payments from third party payment processors (each a “Payment Processor”). If a Payment Processor is utilized to make a payment for an Order, the transaction will be re-directed from the Site to the Payment Processor’s website. When you leave the Site, you should be aware that the terms and policies, including privacy and data gathering practices, of the Payment Processor website to which you navigate from the Site apply to your dealings with the Payment Processor.” Also, all privacy related terms should only appear in the privacy policy in order to avoid any contractual obligations with respect to privacy. Your account and any activities related to providing your personal information will be governed by the Payment Processor’s terms and conditions, and the information provided in relation thereto will be governed by the Payment Processor’s privacy policy. When a Payment Processor is used, your financial information is not shared with Acuva and once payment is completed, the Payment Processor will email a receipt to you for the transaction.
f) Subject to Cancellation. Acuva reserves the right to decline to accept your Order, or to cancel an accepted Order after an Invoice, at any time, including, without limitation, in the event there is an error, typographical error, inaccuracy, omission or mistake to the price of any of Acuva’s Products or Product descriptions, promotions, offers or availability. Prices, specifications and configurations are subject to change without notice. Although Acuva makes reasonable efforts to ensure that the Site is current and contain no errors or inaccuracies, Acuva makes no representations, warranties or guarantees that the information, content or materials included in the Site will be error-free or completely accurate or current at all times, or at any time. Acuva reserves the right at any time in Acuva’s sole and absolute discretion and without notice to correct any errors, inaccuracies or omissions to the information on the Site.
g) Taxes, Duties and Extra Charges. Prices advertised on the Site may not include shipping and handling charges or applicable country or region-specific sales, goods or services taxes, which may be added to the price you pay. Calculation of taxes and shipping charges occurs before your Order is submitted and charged to your credit card as part of the total order amount. You are also responsible for any customs duties or any other similar fees associated with your Order.
h) Currency. All pricing will be noted on your Order and on the Invoice in the appropriate countryor region-specific currency as indicated thereupon. Depending on that currency, your credit card company may apply a conversion rate and additional fees that are outside of Acuva’s control. Furthermore, if for any reason pursuant to this Agreement you become entitled to a refund, that refund may be converted by your credit card company at a different rate meaning that it may be lesser than, or greater than, the actual amount charged to you by your credit card company, as the case may be.
2. Changes to Orders
a) Changes. You may request a change to your Order under any Invoice, provided that the Product has not been released to shipping by the time of your request. Contact information can be found at: www.acuvatech.com. Please note that any such changes may delay other items of your Order,\ or may delay your Order entirely. Changes to existing Orders are treated as a new Order, subject
to acceptance and other procedures generally described in Section 1 above. You will be responsible for any additional charges resulting from any accepted changes to your Order, and if an accepted change would entitle you to a refund, Acuva or its Merchant will process such refund within 15 days of the acceptance of the change.
b) Cancellations and Cancellation Fees. You may request cancellation of any Order (even after an Invoice has been accepted) at any time until the applicable Product(s) has/have shipped. Contact info@acuvatech.com.
3. Returns and Refunds
a) Return Period. Acuva offers a limited 30 day return period for all unopened Products purchased from Acuva directly, the Store or the Site (unless the Product Description or Order, as the case may be, indicates otherwise for any particular Product) (the “Return Period”).
b) Requesting an RMA. The Return Period applicable to a Product commences when Acuva or its Merchant receives notice from its shipping agent that the applicable Product has been delivered to you. To request a refund, you must, within the Return Period, contact Acuva at service@acuvatech.com or www.acuvatech.com or its Merchant during business hours to request a return merchandise authorization (“RMA”). Acuva or its Merchant will send to you a RMA
form by email and you must complete the RMA form and return it to Acuva or its Merchant by following the instructions contained therewith within 10 days.
c) Returning the Product. You must return the product to Acuva, following the RMA instructions. The Product must be in its original, unopened packaging and with all contents provided to you with the Product when it originally shipped.
d. Non-Compliant Returns; Restocking Fee. If Acuva, in its sole and absolute discretion, determines that the returned Product has not been returned in accordance with this Agreement or is not in original condition (such as, without limiting Acuva’s discretion, if the package has been opened, there are signs of use or tampering, there are any missing components or it has been damaged) Acuva may, in its sole and absolute discretion:
i. charge a restocking fee of up to 50% of the purchase price of the Product, which will be deducted from any refund to be provided to you, or
ii. refuse to accept the return by returning the Product to you, upon which you will not be entitled to any refund.
e) Processing Refund. Subject to Section 3.d, Acuva or its Merchant will refund to you the purchase price for the Product that was actually paid to Acuva or its Merchant (for greater certainty, including applicable taxes but excluding shipping costs and any other extra charges for which you are responsible pursuant to the “Extra Charges” section above at Section 1.g) via the same means Acuva or its Merchant received your payment in the first instance. Your refund will be processed no later than 30 days of Acuva’s or its Merchant’s receipt of your Product.
Terms of Use
a) In-Stock Products. In-Stock Products will generally be shipped to you within approximately 5 days of the date of the Invoice. b) Out-Of-Stock Products. Out-Of-Stock Products will generally be shipped to you within approximately 5 days of the date that the Product comes back into stock, if and as available. c) Pre-Ordered Products. When placing an Order for a Pre-Ordered Product, the Order or your Invoice may indicate an estimated shipping time. Pre-Ordered Products will be shipped if and when available. Acuva makes no guarantee that any such Products will be shipped at any particular time and the actual date of shipment may change for any reason, including availability of materials, supplier difficulties, changes in specifications, matters beyond Acuva’s or its Merchant’s control, design changes, government approvals or certifications, or any other reason. Acuva will update you with its estimate of the shipping date from time to time, and will notify you when the Pre-Ordered Product ships. d) Estimates. Any shipping dates or timeframes provided (whether in your Invoice or in this Agreement) are estimates only and subject to change. e) Priority. All Products will be shipped in the order in which Invoices have been issued to Acuva’s customers, including you. f) Receipt. The date of shipping does not guarantee the date of receipt; the actual delivery date to you will depend on the shipping method selected and available to you during your Order.
5. Delivery
a) General. Acuva will arrange to deliver the Products in your Order to the address you provided in your Order, as noted on the Invoice. Title to the Products, and risk of loss, passes to you upon Acuva’s delivery of the Product to the carrier you have selected or that was made available to you during your Order.
b) Delivery Procedure. Acuva’s carriers will require your signature (or the signature of someone authorized to sign on your behalf) to complete delivery of the Product to you at the address you specify in your Order.
c) Investigations. Acuva reserves the right to investigate (or to retain a third party to investigate) any claims or returns on the basis of incorrect delivery procedure and false information. In the unlikely event that your Order arrives with visible damage to the exterior packaging, you may
either take delivery or refuse the shipment.
d) Order Errors and Damages. You must examine the Product after you receive it. If an Order or shipping error has occurred, or if your Product is damaged (except for latent damage not readily apparent) you must notify Acuva of the particulars as soon as possible, but in any event within 5 days of the carrier’s delivery to you (the “Inspection Period”). Any claims made after this time frame will not be honoured and the Product(s) shipped and delivered to you will be deemed to have been delivered and accepted by you, and Acuva will not consider any claim for damaged or missing Products outside of this time period.
e) Return Procedure. If your Product was not as ordered, or in damaged condition or other than in apparent good order, please contact Acuva immediately. Contact information can be found at: service@acuvatech.com
Terms of Use
6. Returning the Product.
Acuva is the provider of this Limited Warranty. Acuva’s warranty contact information can be found at service@acuvatech.com or www.acuvatech.com. You may need to provide a proof of purchase of the Product, in the form of the purchase invoice sent to you by Acuva or an invoice from an authorized seller of the Product, to evidence that you are the original purchaser of the Product. In the event you return the Product to Acuva outside of the Warranty Period, Acuva’s standard replacement terms and charges may apply. Acuva may limit the Limited Warranty to the country where Acuva or its authorized seller sold the Product to you. You may be responsible for shipping, handling, or other costs if you request warranty services not in the country of original purchase.
7. Exclusive Remedies
The remedies in this Agreement are the exclusive remedies provided to you under this Agreement. To the extent permitted by applicable laws, the Limited Warranty in this Agreement is in lieu of all other warranties or conditions, express or implied. EXCEPT AS SET OUT IN THIS LIMITED WARRANTY AND AS PERMITTED BY APPLICABLE LAWS, ACUVA SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, ENDORSEMENTS, AND CONDITIONS OF ANY KIND (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THIS AGREEMENT, THE SITE AND ALL PRODUCTS, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (A) WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, OR DURABILITY; (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT A ACUVA KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); OR (C) WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE). WHERE IMPLIED WARRANTIES CANNOT BE DISCLAIMED BY APPLICABLE LAW, SUCH IMPLIED WARRANTIES ARE LIMITED TO THE DURATION OF THIS LIMITED WARRANTY. THE LIMITED WARRANTY IN THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. SECTION 8 IS NOT APPLICABLE TO RESIDENTS OF QUEBEC.
8. Release, Waiver and Limitation of Liability
a) YOU ACKNOWLEDGE AND AGREE THAT ACUVA, ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, LICENSORS, SUPPLIERS, SERVICE PROVIDERS, RESELLERS, AND DISTRIBUTORS (COLLECTIVELY, “ACUVA” IN THIS SECTION 9) WILL IN NO WAY BE LIABLE TO YOU FOR ANY GENERAL, PECUNIARY, NON-PECUNIARY, INDIRECT, ECONOMIC, SPECIAL, COMMERCIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, LOST DATA, LOSS OF OPPORTUNITY, DAMAGES CAUSED BY DELAYS OR A FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF PROPERTY, OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY PRODUCT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR
OTHER THEORY) AND EVEN IF SUCH PERSON/ENTITIES IS/ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
b) IN NO EVENT SHALL ACUVA’S TOTAL LIABILITY TO YOU OR TO ANY THIRD PARTY RELATING TO OR ARISING FROM THIS AGREEMENT OR ANY PRODUCT WITH RESPECT EXCEED THE PURCHASE PRICE OF THE PRODUCT THAT YOU PURCHASED OR THE COST OF REPAIRING OR REPLACING THE PRODUCT, WHICHEVER IS GREATER.
c) THE LIMITATIONS OF LIABILITY SET OUT IN SECTIONS 9(a) AND 9(b) ABOVE ARE INTENDED TO APPLY AND DO APPLY TO ANY DAMAGES, LOSSES, OR LIABILITY OF ANY TYPE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) AND EVEN IF ACUVA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
d) THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 9 APPLY TO THE FULL EXTENT THEY ARE NOT PROHIBITED BY APPLICABLE LAW WITHOUT THE POSSIBILITY OF CONTRACTUAL WAIVER.
e) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. SECTION 9 IS NOT APPLICABLE TO RESIDENTS OF QUEBEC.
9. Warnings
The Product is an electrical product which carries with it an inherent risk of use. Please read the Acuva owner’s manual (the “Manual”) for detailed information respecting the safe installation and operation of the Product. Installation or operation of the Product in a manner contrary to the Manual may result in property damage or personal injury, including shock, electrocution and death.
General Matters
10. Binding Effect
a) Equivalency. This electronic Agreement and any other materials incorporated herein will be: (i) deemed for all purposes to be a “writing” or “in writing”, and to comply with all statutory, contractual and other legal requirements for a writing; (ii) legally enforceable as a signed writing as against the parties subject to the electronic documents; and (iii) deemed an “original” when printed from electronic records established and maintained in the ordinary course of business. Electronic documents introduced as evidence in any judicial, arbitration, mediation or proceeding will, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.
b) Enurement. These terms and conditions and the rights and duties herein will be binding on and enure to the benefit of you and Acuva and their successors and permitted assigns (including your heirs, executors and administrators).
c) Force Majeure. No Acuva entity shall be responsible for a failure to fulfil any obligations pursuant this Agreement or for delay in doing so if such failure or delay is due to circumstances beyond its reasonable control, such as acts of God, acts of government, war, riots, strikes and accidents in transportation.
12. Construction
a) Severability. Each provision of this Agreement, and part thereof, is declared to be separate, separable and distinct from all other provisions and parts thereof. If any provision or part thereof is determined by a court of competent jurisdiction or other constituted legal authority to be void, unenforceable or unreasonable in whole or in part, it will not be deemed to affect or impair the enforceability or validity of any other promise or provision in this Agreement or any part thereof and the said court or other constituted legal authority will have the authority to limit such promise or provision as it deems proper.
b) Non-Application. The Sale of Goods Act (British Columbia), International Sale of Goods Act (British Columbia) and the United Nations Convention on Contracts for the International Sale of Goods, or any other similar legislation of any other jurisdiction that may be excluded by a similar reference, will not apply in any way to this Agreement or to the transactions contemplated by this Agreement.
c) English Language. The parties have requested and agree that this Agreement and all documents relating thereto be drawn up in English / Les parties ont demandé que cette convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais. SECTION 13(c) IS NOT APPLICABLE TO RESIDENTS OF QUEBEC.
13. Dispute Resolution
a) Arbitration. All disputes, controversies or claims arising out of or in connection with or in relation to this Agreement or the breach thereof, including any and all disputes, claims or question regarding: (i) the existence, validity, application, interpretation, performance, enforcement or termination of this Agreement; (ii) any dispute or claim arising out of or relating to the negotiation, execution, interpretation, application or performance of this Agreement; or (iii) any
dispute or claim arising out of or relating to the design, manufacture, distribution, instruction, warning, performance or use of the Product (collectively, the “Dispute”), will be solely and exclusively referred to, and finally resolved by, binding arbitration pursuant to the provisions of the British Columbia Arbitration Act and any amendments thereto. Such arbitration shall be conducted pursuant to the Domestic Commercial Arbitration Rules of Procedure of the British
Columbia International Commercial Arbitration Centre then in force (the “Arbitration Rules”). A single arbitrator shall be appointed by agreement of the Parties, or, in default of agreement, such arbitrator will be appointed in accordance with the Arbitration Rules. The arbitration will be governed by the laws of the Province of British Columbia and the laws of Canada as applicable therein. The arbitration will be held in Vancouver, British Columbia and will be conducted in the English language. The arbitrator shall have jurisdiction to award costs of the arbitration, including attorney’s fees and disbursements and arbitrator fees and expenses. Any award and the determination of such arbitrator will be final and binding upon you and Acuva. A judgment on the award of the arbitrator may be entered into any court having jurisdiction over the party or parties against whom an award may be issued and each of you and Acuva agrees to and hereby waives any defences against the enforceability and execution of any such judgment
awarded by the arbitrator as contemplated in this Agreement. Judgment on the award of an arbitrator may be entered by any court having jurisdiction over the person or property of the person against whom enforcement of the judgment is sought. Where arbitration is prohibited by applicable laws, you and Acuva hereby agree to the exclusive jurisdiction of the courts of the province of British Columbia, Canada with respect to any Disputes relating to this Agreement.
b) No Trial by Jury. You hereby waive all rights to a trial by jury with respect to any claims and
issues relating to or arising out of this Agreement.
c) SECTION 14 IS NOT APPLICABLE TO RESIDENTS OF QUEBEC.
14. Attornment.
You waive: (i) any right to object to venue or jurisdiction based on inconvenient forum or for any other reason, and (ii) any statutory or other right pursuant to the laws of the jurisdiction in which the you are resident to have a court case or arbitral hearing relating to this Agreement adjudicated or resolved in that jurisdiction. Any rule of interpretation, law or regulation that provides that the language of a contract will be interpreted against the drafter will not apply to this Agreement. SECTION 15 IS NOT
APPLICABLE TO RESIDENTS OF QUEBEC.
15. Governing Law
This Agreement will be governed by and interpreted in accordance with the laws of the Province of British Columbia and the federal laws of Canada as if made and performed by and between parties situated in such province and without regard to the conflict of law rules that would apply a different body of law. SECTION 16 IS NOT APPLICABLE TO RESIDENTS OF QUEBEC.
16. Updates and Supplementary Terms
This Agreement may be updated or supplemented by Acuva from time to time. For Products purchased in specific countries, unique terms may replace or modify this Agreement if so provided with the Product or posted at the Site. All terms that are not changed by these unique country terms (if any) remain unchanged and in effect. Please visit the Site to obtain the latest version of, or supplements or any country or jurisdiction-unique terms to, this Agreement. SECTION 17 IS NOT APPLICABLE TO RESIDENTS OF QUEBEC.
17. Notice to California Users
If you are a California resident, you may have this Agreement mailed to you
electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms. Under California Civil Code Section 1789.3, California website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.
18. How to Contact Acuva.
Acuva can be contacted as follows:
Email: info@acuvatech.com
Telephone: 1.604.431.9241
Mail: Acuva Technologies Inc., Suite 1 – 3771 North Fraser Way Burnaby, BC V5J 5G5 Canada