1. Application of this Policy
1.1 These terms of sale (“Terms”) are the only terms which govern the purchase of the products by you from MERGE4 Mfg, Inc. (“MERGE4”) via MERGE4’s website http://www.merge4.com (the “Products”). These Terms comprise the entire agreement between you and MERGE4 in connection with the Products, and supersede any other understandings, agreements, representations and warranties and communications. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
1.2 By placing an order, you are offering to purchase the relevant Product on and subject to these Terms. When you place an order, you will receive an acknowledgement e-mail confirming receipt of your order: this email will only be an acknowledgement and will not constitute acceptance of your order. A contract between you and MERGE4 will not be formed until MERGE4 sends you confirmation by e-mail that the Products which you ordered have been dispatched to you (“Sales Confirmation”). Only those Products listed in the confirmation e-mail sent at the time of dispatch will be included in the contract formed under these Terms. Fulfillment of your order does not constitute acceptance of any terms and conditions your may have and does not serve to modify or amend these Terms.
1.3 All Products ordered by you must only be purchased for your internal and personal purposes, and not for any other purpose (such as commercial use).
2.1 After placing an order and receiving confirmation, you should expect to receive your product within 5 days subject to availability of the ordered Products and these Terms. MERGE4 shall not be liable for any delays, loss or damage in transit.
2.2 Unless otherwise agreed to in writing by the parties, MERGE4 will deliver the Products to the address as indicated by you during the checkout process (the “Delivery Address”) using MERGE4’s standard methods for packaging and shipping such Products.
2.3 MERGE4 may, in its sole discretion, without liability or penalty, ship your Products separately to you, depending on availability of the Products.
2.4 The quantity of the Products as recorded by MERGE4 on dispatch is conclusive evidence of the quantity received by you on delivery unless you can provide conclusive evidence proving the contrary.
2.5 MERGE4 is not responsible for any non-delivery of Products unless you give written notice to MERGE4 of the non-delivery within two weeks of the date when the Products would in the ordinary course of events have been received. Any liability of MERGE4 for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered
3. Cancelling an Order and Returning Products
3.1 If you are not satisfied with your Product, you may return the relevant Product within 30 days of the original purchase date.
3.2 All return Products must be in new and unused condition (except to the extent the Product was defective when received), in original packaging, and must be returned to MERGE4 within 30 days of the original purchase date of the Product. You should pack the Products securely so that they are not damaged during shipping; MERGE4 is not responsible for lost or damaged Products in transit. After Merge4 has received your returned Product, if the Product is returned because it is defective or because the wrong Product was sent to you, MERGE4 will, at its option and sole discretion, refund you the price of the Product via the original payment method or such other method agreed between the parties or send you a replacement Product. If the Product is returned for any other reason, provided you have complied with all return-requirements set out in this paragraph, MERGE4 will refund you the price of the Product via the original payment method less outbound freight via the original payment or such other method agreed between the parties. If you wish to replace a non-defective Product, a new Product will be sent to you after the defective Product is received, only if you have properly placed a new order for the new Product in accordance with these Terms.
3.3 MERGE4 may reject any order or cancel any purchase of Products at any time in the following cases, subject to any applicable refund: (i) the Products are not available/not in stock; (ii) the data you provide to MERGE4 in connection with your purchase is incorrect and/or cannot be checked; (iii) your order is marked as suspicious or otherwise suggestive of fraud or illegality by MERGE4’s security systems; (iv) MERGE4 has reason to believe that your purchase is intended for a further commercial activity; (v) there has been an error in the indicated price of the Products; or (vi) MERGE4 cannot deliver the Products to the address you have provided.
4. Title and Risk of Loss.
Title and risk of loss passes to you upon delivery of the Products at the Delivery Address. This means you will be responsible for any subsequent damage, loss or destruction to the Products delivered to you. As collateral security for the payment of the purchase price of the Products, you hereby grant to MERGE4 a lien on and security interest in and to all of your right, title and interest of in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the California Uniform Commercial Code.
5. Information about our Products.
5.1 MERGE4 tries to make sure all descriptions of the Products and listed prices are accurate and correct. However, mistakes do happen and MERGE4 will try to resolve any errors in information as soon as reasonably possible and if MERGE4 thinks that such an error has affected your order MERGE4 will make all reasonable efforts to notify you via the contact information provided by you and give you the option of reconfirming your order at the correct price or description (as applicable) or cancelling it. If MERGE4 is unable to contact you MERGE4 will treat the order as cancelled. If you cancel and you have already paid for the Products, you will receive a refund.
5.2 You acknowledge and agree that (i) the colors of Products as shown on the website will depend on many factors, including your display settings and the device you are using to view MERGE4’s website; (ii) the actual sizes and shapes of the goods may differ from how they appear on your screen; and (iii) pictures and images on the Website are for illustration purposes only. MERGE4 reserves the right to adjust prices, Products and special offers at our discretion.
6. Price and Payment Terms
6.1 You agree to purchase the Products from MERGE4 at the prices specified on MERGE4’s website on the date you place your relevant order, including any shipping prices (“Prices”).
6.2 Unless otherwise specifically specified by MERGE4, the published Prices applicable to the Products are exclusive of shipping prices, which will be separately specified during your checkout process. All published Prices applicable to the Products are also exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by you. You will be responsible for all such charges, costs and taxes but you will not be responsible for any taxes imposed on, or with respect to, MERGE4’s income, revenues, gross receipts, personnel or real or personal property or other assets.
6.3 When placing an order for Products you are responsible for ensuring that all details you provide to MERGE4 are true and accurate, that you are an authorized user of the credit or debit card or such other authorized payment account used to place your order and that there are sufficient funds to cover the cost of the Products.
6.4 MERGE4 may offer discount or promo codes from time to time; such codes may only be applied to purchases made through the account in respect of which the discount code was offered and registered. Only one code can be used per order and use of such codes are subject to any other terms and conditions specified by MERGE4 when those codes are made available to you. A promotion code can’t be used after an order has been placed.
6.5 After receiving your order MERGE4 carries out a standard pre-authorization check on your payment card to ensure there are sufficient funds to fulfill the transaction. Products will not be dispatched until this pre-authorization check has been completed. Your card will be debited once the order has been accepted.
7. Limited Warranty.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THESE TERMS, MERGE4 MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) 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.
8. Limitation of Liability
8.1 IN NO EVENT WILL MERGE4 BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR IN CONNECTINO WITH ANY BREACH OF THESE TERMS OR ANY ACT OR OMISSION BY MERGE4 OR ITS PERSONNEL, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
8.2 YOUR EXPRESS RIGHT TO RECEIVE A REFUND OR REPLACEMENT PRODUCT UNDER SECTION 3 ABOVE CONSTITUTES YOUR SOLE AND EXCLUSIVE REMEDY IN RELATION TO ANY DEFECTIVE OR WRONG PRODUCTS SENT TO YOU OR ANY PRODUCTS THAT HAVE BEEN INACCURATELY DESCRIBED OR PRICED ON MERGE4’S WEBSITE.
8.3 IN NO EVENT WILL MERGE4’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH TO TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF ANY AMOUNTS PAID TO MERGE4 BY YOU FOR THE RELEVANT PRODUCTS SOLD UNDER THESE TERMS.
8.4 The limitation of liability set forth in above will not apply to death or bodily injury directly resulting from MERGE4’s acts or omissions.
No waiver by MERGE4 of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by MERGE4. Delay in MERGE4’s exercising, failure to exercise, or delay to exercise any right, remedy, power or privilege arising from this Agreement operates, or may be construed as a waiver thereof.
10. Force Majeure
MERGE4 will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms, when and to the extent such failure or delay is caused by or results from acts or circum MERGE4s beyond the reasonable control of MERGE4 including 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.
11. Governing Law
All matters arising out of or relating to these Terms is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.
12. Submission to Jurisdiction
Any legal suit, action or proceeding arising out of or relating to these Terms will be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the county of Santa Cruz, in the State of California, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
MERGE4 may revise and update these Terms from time to time in its sole discretion. All changes are effective immediately when MERGE4 posts them, and apply to all purchases of Products thereafter. You should check these Terms every time you make a purchase of Products so you are aware of any changes you. No other changes to these Terms will be binding or enforceable unless agreed in writing between each party’s authorized representative.
If any term or provision of these Terms is held to be invalid, illegal or unenforceable in any jurisdiction, the invalidity, illegality or unenforceability will not affect any other term or invalidate or render unenforceable such term in any other jurisdiction.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.