1. SCOPE OF AGREEMENT.
All price quotations are subject to change with or without notice. Prices quoted are in United States Dollars and do not include freight, handling or delivery charges, air shipment charges, taxes (sales, excise, use, ad valorem, etc.), insurance or any export or import duties. Taxes are not included and any applicable taxes may be added to the amount due for the Products at checkout. Consumer shall be responsible for paying any and all such taxes, regardless of whether they are stated in the order confirmation for the Products. Such charges may, at Vorwerk’s sole and absolute discretion, be prepaid by Vorwerk and added to Consumer’s order confirmation.
All orders for Products must be paid in full in advance of shipment. In order to initiate purchase of the Products from Vorwerk, Consumer must have account credit or a valid credit card associated with Consumer’s account. Consumer’s credit card may be charged a nominal amount – e.g., $1.00 – to validate the credit card. Vorwerk may use third party merchant processors to process Consumer’s credit card payment. Vorwerk shall have the right to suspend deliveries or discontinue any of the work to be performed by Vorwerk until amounts past due are paid in full. Consumer agrees to pay all attorneys’ fees, litigation expenses and costs that are incurred by Vorwerk for the collection of all amounts owed by Consumer to Vorwerk.
4. SHIPMENT, DELIVERY, INSPECTION.
All shipments are F.O.B. origin. An additional fee may apply to any order on shipments to a destination that is different than Consumer’s billing address. All delivery and shipment dates stated are approximations only and are subject to Product availability. Consumer shall examine all Products promptly upon receipt and shall notify Vorwerk, in writing, within seven (7) days of delivery, of any nonconformance. If rejection is intended, Consumer shall specify all grounds for rejection. Failure to provide Vorwerk with such notice shall be deemed an unqualified acceptance of the delivered Products by Consumer. Vorwerk reserves the right to ship the products in multiple boxes and/or shipments.
If delivery is delayed at the request of Consumer, or for any other reason beyond the control of Vorwerk, the Products shall nevertheless be deemed to have been delivered to Consumer as of the date of notice from Vorwerk to Consumer that the Products are available for delivery for purposes of determining the final price for the Products and the time payment will be due. Products held by Vorwerk for Consumer after the giving of such notice shall be held at the risk and expense of the Consumer. In no event shall Vorwerk be liable for incidental, consequential or special damages, including lost profits, arising out of a delay or failure to deliver.
To return Products, Consumer must contact Vorwerk’s Customer Service Department at 1 888 VORWERK (1 888 867-9375) before returning any Product. Products may not be and Vorwerk is not responsible for Products returned without a Return Authorization (“RA”) Number from Vorwerk. All returned Products must be marked with an applicable RA Number. Vorwerk reserves the right to not accept returns after 30 days of the ship date. All used or refurbished Products are sold “as is” and may not be returned for any reason whatsoever. Any return Products shall be shipped to Vorwerk freight and delivery prepaid. Any refunds made by Vorwerk shall be refunded in the manner in which the order was paid as identified on the applicable order confirmation.
7. CONSUMER’S REPRESENTATIONS AND WARRANTIES.
Consumer represents and warrants that it shall: (a) comply with all applicable laws in connection with using the Products; (b) take all reasonable precautions necessary while using the Products to promote safety, avoid accident, and prevent injury or damage to person or property; and (c) notify Vorwerk promptly upon discovering any problems with the Products that present any health or safety hazard.
8. LIMITED WARRANTY.
Vorwerk warrants that the Products purchased hereunder shall be free from defects in material and workmanship upon the terms of its standard warranty policies for the Products located at https://thermomix.com/services/warranty/ and in the product literature provided with the Products purchased by Consumer. The warranties set forth herein do not cover: (a) defects due to improper installation, maintenance, use or abuse of the Products; (b) alterations, modifications or repairs to the Products not authorized or made by Vorwerk; (c) use of parts not manufactured or supplied by Vorwerk; and (d) any operation of the Products in excess of the Product’s rating, specifications or intended use.
9. WARRANTY DISCLAIMER.
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7 (limited warranty), THE PRODUCTS ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, VORWERK AND ITS AFFILIATES MAKE NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED, EXPRESS OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, TITLE, NON-INFRINGEMENT OR ANY REPRESENTATION OR WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
10. LIMITATION OF LIABILITY.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER SUCH DAMAGES ARE REASONABLY FORESEEABLE. THE MAXIMUM AGGREGATE LIABILITY OF EACH PARTY FOR ANY REASON AND UPON ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE FEES OR OTHER AMOUNTS PAID BY CONSUMER TO VORWERK IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE ACT OR OMISSION GIVING RISE TO THE CLAIM OCCURRED. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF THE CAUSE OR THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY OR OTHERWISE.
11. LIMITATIONS ON ACTIONS.
No claim or cause of action against Vorwerk for breach of this Agreement or the transaction contemplated hereunder may be asserted or brought by or on behalf of Consumer more than one (1) year after the claim or cause of action accrues.
The parties shall attempt to resolve all claims and disputes arising under or relating to this Agreement informally to the maximum extent possible. All claims or disputes arising under or relating to this Agreement that are not resolved between the parties within thirty (30) days after one party gives written notice of a demand for arbitration to the other party shall be determined by private binding arbitration before a single arbitrator in accordance with the Rules of the American Arbitration Association (“AAA”) that are in effect on the date that the notice of a demand for arbitration is given. Any notice of a demand for arbitration shall include sufficient detail to establish the nature of the dispute (including the claims asserted and the material issues with respect thereto) and shall be delivered to the other party. If the parties are unable to agree on the identity of a single arbitrator within forty (40) days after notice of a demand for arbitration is given, then the AAA arbitrator selection rules shall apply. The seat of any arbitration under this Agreement shall be Los Angeles, California, and the language of the arbitration shall be English. The arbitrator’s decision shall be in writing and describe in detail the legal reasoning adopted by the arbitrator in support of the decision. In rendering a decision, the arbitrator shall follow the governing laws of this Agreement. The arbitrator’s decision shall be final and binding on the parties; provided, however, that errors of law may be appealed to a court of competent jurisdiction for review. All costs of arbitration under this Section shall be divided equally between the parties. The arbitrator shall have the power to award reasonable attorney’s fees to the prevailing party if, in the arbitrator’s judgment, the dispute was not a bona fide dispute or the prevailing party’s position was substantially more compelling than the other party’s position. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction over the parties.
13. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to the principles of conflicts of law that would apply the substantive laws of another jurisdiction.
14. FORCE MAJEURE.
EXCEPT FOR PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE FOR ANY DELAY OR FAILURE TO PERFORM ANY OBLIGATION UNDER THIS AGREEMENT WHERE THE DELAY OR FAILURE RESULTS FROM ANY CAUSE BEYOND ITS REASONABLE CONTROL, INCLUDING ACTS OF GOD, LABOR DISPUTES OR OTHER INDUSTRIAL DISTURBANCES, ELECTRICAL OR POWER OUTAGE, UTILITIES OR TELECOMMUNICATIONS FAILURES, EARTHQUAKE, STORMS OR OTHER ELEMENTS OF NATURE, BLOCKAGES, EMBARGOES, RIOTS, ACTS OR ORDERS OF GOVERNMENT, ACTS OF TERRORISM, OR WAR.
15. IMPORT AND EXPORT COMPLIANCE.
IN CONNECTION WITH THIS AGREEMENT, EACH PARTY WILL COMPLY WITH ALL APPLICABLE IMPORT, RE-IMPORT, EXPORT, AND RE-EXPORT CONTROL LAWS AND REGULATIONS, INCLUDING THE EXPORT ADMINISTRATION REGULATIONS, THE INTERNATIONAL TRAFFIC IN ARMS REGULATIONS, AND COUNTRY-SPECIFIC ECONOMIC SANCTIONS PROGRAMS IMPLEMENTED BY THE OFFICE OF FOREIGN ASSETS CONTROL. CONSUMER IS SOLELY RESPONSIBLE FOR COMPLIANCE WITH APPLICABLE LAWS RELATED TO THE MANNER IN WHICH CONSUMER CHOOSES TO USE THE PRODUCTS.
16. CONFIDENTIALITY AND INTELLECTUAL PROPERTY.
Consumer acknowledges that it has no rights, title or interests in or to the patents, trademarks, copyrights, trade secrets or other intellectual property rights of Vorwerk with respect to the Products, and Consumer covenants and agrees that it shall take no action to register or otherwise interfere with any such rights. Nothing contained herein shall be construed to grant any rights or license to use any intellectual property in any manner or for any purpose except as may be expressly permitted by a separate license agreement executed by both Vorwerk and Consumer.
Vorwerk welcomes Consumer’s feedback and suggestions (“Feedback”) which Consumer may submit to https://thermomix.com/contact-us/. Consumer covenants and agrees that such Feedback does not contain confidential or proprietary information of any third party. Any and all Feedback provided by Consumer to Vorwerk related to the Products shall be exclusively owned by Vorwerk. Consumer hereby assigns all rights, title and interests in and to such Feedback as of the date it is offered to Vorwerk. Vorwerk may use such Feedback for any purpose, including improvement and modification of the Products, and Vorwerk shall own all rights, title and interests in and to such improvements and modifications.
18. RELATIONSHIP OF PARTIES.
Nothing in this Agreement will be deemed or construed to create a joint venture, partnership, fiduciary, or agency relationship between the parties for any purpose.
19. CONSENT TO ELECTRONIC DELIVERY OF NOTICES.
Consumer consents to receive communications from Vorwerk electronically, including without limitation by e-mail or by posting notices. Consumer agrees that all agreements, notices, disclosures and other communications that Vorwerk provides to Consumer electronically shall satisfy any legal requirement that such communications be in writing. In order for Consumer to withdraw its consent to receive notices electronically, Consumer must notify Vorwerk in writing of its withdrawal of such consent.
The headings of the various sections in this Agreement are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
No delay or omission by either party to exercise any right occurring upon any non-compliance or default of the other party with respect to this Agreement shall impair any such right or be construed to be a waiver thereof.
Those provisions of this Agreement which by their nature or by their terms survive the Term of this Agreement shall so survive.
In the event any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable under applicable law, such provision shall be amended and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions of this Agreement shall continue in full force and effect.
Consumer may not assign or transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of Vorwerk, which consent may withheld Vorwerk’s sole absolute discretion. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Vorwerk may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without Consumer’s consent. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, legal representatives, successors and permitted assigns.
25. ENTIRE AGREEMENT.
This Agreement sets forth the entire and exclusive agreement between the Vorwerk and Consumer as to the subject matter hereof and supersedes all prior and contemporaneous understandings, negotiations and agreements, whether written or oral, between Vorwerk and Consumer as to the subject matter hereof.