Terms and Conditions of Pre-Order and Sale
THESE TERMS AND CONDITIONS OF PRE-ORDER AND SALE (“AGREEMENT”) SET FORTH THE TERMS UPON WHICH SMARTMISSMIO TECHNOLOGIES PTE LTD (“SMARTMISSIMO” OR, THE “COMPANY”) SELLS, AND YOU PRE-ORDER AND PURCHASE, THE PowerDot Product OFFERED BY SMARTMISSIMO THROUGH ITS WEBSITE (THE “PRODUCT”). BY PURCHASING THE PRODUCT, YOU ARE AGREEING TO THIS AGREEMENT, WHICH FORMS A BINDING AGREEMENT BETWEEN YOU AND THE COMPANY AND INCLUDES AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY. DO NOT PRE-ORDER THE PRODUCT IF YOU DO NOT ACCEPT THIS AGREEMENT. THE TERM “YOU” MEANS BOTH THE INDIVIDUAL PLACING THE PRE-ORDER AND THE ENTITY ON WHOSE BEHALF SUCH INDIVIDUAL IS ACTING, IF ANY.
IF YOU LIVE IN THE UNITED STATES OF AMERICA: YOU UNDERSTAND THAT THE PRODUCT IS NOT CLEARED WITH U.S. FOOD AND DRUG ADMINISTRATION (the “FDA”) AT THIS TIME, AND WILL NOT BE SHIPPED TO YOU UNTIL IT RECEIVES THE NECESSARY FDA REGULATORY CLEARANCE. IF THE COMPANY IS UNABLE TO COMMENCE SHIPPING THE PRODUCT ON OR BEFORE THE ONE-YEAR ANNIVERSARY OF YOUR PLACING THE PRE-ORDER, THE COMPANY SHALL PROCESS A FULL REFUND TO YOU.
- 1Orders. Any orders for Products placed through the SMARTMISSIMO website are binding. All order quantities are firm, and you may not cancel or modify any order.
- 2Pricing and Payment. You agree to pay the price for the Products listed on the SMARTMISSIMO website by credit card, PayPal or such other payment method specified by the website, in accordance with the payment procedure described there.
- 3Transfer of Risk and Title. Risk in the Product passes to you on SMARTMISSIMO’s delivery of the Product to the carrier, and you are responsible for any loss or damage to Products from that point. Title to the Product passes to you upon SMARTMISSIMO’s receipt of payment for the Product.
- 4Personal Use Only; Restrictions. You shall use the Product only for personal purposes and additionally you live in the United States of America, you will only use the Product for purposes approved by the FDA. You shall not reverse engineer any Product or use the Product to create a competitive product.
- 5Replacement of Faulty Product. If you believe any Product shipped to you is faulty, contact SMARTMISSIMO to request a return. SMARTMISSIMO may, in its discretion, accept returns for goods that are defective or damaged provided that notice of such damage is given to SMARTMISSIMO within 30 days of your receipt of such goods. No returns will be accepted by SMARTMISSIMO thereafter. You will comply with SMARTMISSIMO’s returns procedures when returning products. SMARTMISSIMO is under no obligation to accept any returns of Products where the defect or fault was caused by you or the defect or fault occurred after shipment by SMARTMISSIMO. SMARTMISSIMO will ship a replacement Product to you only after receipt of the faulty Product by SMARTMISSIMO.
- 6Intellectual Property. SMARTMISSIMO and its licensors own all intellectual property rights in the Products. You shall acquire no interest or rights in SMARTMISSIMO intellectual property by virtue of this Agreement.
- 7Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL SMARTMISSIMO BE LIABLE FOR ANY COLLATERAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR USE OF THE PRODUCTS, EVEN IF SMARTMISSIMO SHALL HAVE BEEN ADVISED OF SUCH POTENTIAL DAMAGES. TO THE EXTENT PERMITTED UNDER LAW, IN NO EVENT SHALL SMARTMISSIMO’S LIABILITY FOR DAMAGES ARISING IN CONNECTION WITH ANY PRODUCT EXCEED THE PURCHASE PRICE OF THE PRODUCT PAID BY YOU. THESE LIMITATIONS WILL APPLY WHETHER THE LIABILITY ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, UNDER STATUTE OR OTHERWISE. Any legal proceedings against SMARTMISSIMO relating to this Agreement shall be filed within one (1) year after shipment of the applicable Product to you. Some states do not allow the exclusion or limitation of liability of consequential or incidental damages, so the above exclusions may not apply to all users; in such states, liability is limited to the fullest extent permitted by law.
- 8Indemnity. You alone are responsible for the manner in which you use the Product. You shall defend, indemnify and hold harmless SMARTMISSIMO and its officers, directors, employees and agents (“Indemnitees”) from any liabilities, damages, losses, expenses, costs and attorneys’ fees arising from your use of the Products not expressly in accordance with this Agreement or from any claim or suit made against the Indemnitees as a result of such conflicting use.
- 9Force Majeure. SMARTMISSIMO shall not be liable for any breach of this Agreement to the extent arising from any factor outside SMARTMISSIMO’s reasonable control.
- 11Applicable Law and Jurisdiction; Compliance. All disputes arising out of or relating to these Terms and Conditions of Pre-Order and Sale or the Product, shall be resolved exclusively by binding arbitration before a single arbitrator (the “Arbitrator”) in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) then in effect and the further procedures set forth herein. (For information on the AAA and its rules, see www.adr.org.) The arbitration shall be conducted in Boston, Massachusetts, unless the Arbitrator shall determine that that venue is not reasonably convenient to all parties, in which case the Arbitrator shall determine another venue that is. In the event that the AAA is unavailable or unwilling to administer the arbitration, and the parties are unable to agree to a substitute, a substitute shall be appointed by the court. The Arbitrator shall have authority to issue any and all remedies authorized by law. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 2 et seq., and the laws of the Commonwealth of Massachusetts without reference to principles of conflicts of laws. Notwithstanding any rules of the AAA to the contrary, any claims shall be adjudicated on an individual basis only, and YOU HEREBY WAIVE ANY RIGHT TO BRING ANY CLAIM AS A REPRESENTATIVE OF A PROPOSED CLASS, ON AN AGGREGATED OR MASS BASIS, OR AS A PRIVATE ATTORNEY GENERAL, OR TO CONSOLIDATE ARBITRATION PROCEEDINGS WITHOUT THE CONSENT OF ALL PARTIES THERETO. Any award rendered by the Arbitrator shall be final, conclusive and binding upon the parties hereto. In connection with any arbitration proceeding pursuant to these terms and conditions, unless the Arbitrator shall determine otherwise, each party shall bear its own costs and expenses. Notwithstanding the foregoing, you may at your option file an individual claim in any small claims court for disputes or claims within the scope of its subject matter jurisdiction if such court has personal jurisdiction. The Company does not hereby waive any defense that such jurisdiction may be lacking in your jurisdiction. Without derogation of the parties’ obligation to arbitrate as set forth herein, for any claims other than those in small claims court, jurisdiction for any court proceedings arising out of or relating to these terms and conditions, the Website or the Services shall be vested exclusively in, and venue shall be laid in, the state or federal courts sitting in Boston, Massachusetts, except that, following confirmation of an arbitration award in a state or federal court in Boston, Massachusetts, a judgment arising therefrom may be executed in any court of competent jurisdiction.
- 12Miscellaneous. If any provision of this Agreement is held to be unenforceable, it shall be severed and the remaining provisions will remain enforceable. The severed provision will be replaced by an enforceable provision most nearly reflecting the intention of the parties. This Agreement shall not be modified, nor compliance with any provision waived, except in writing signed by both parties. SMARTMISSIMO’s failure to insist upon strict performance of any of the provisions contained in this Agreement shall in no way constitute a waiver of its rights as set forth herein, at law or in equity, or a waiver by SMARTMISSIMO of any other provisions of prior, concurrent or subsequent default by SMARTMISSIMO in the performance of or compliance with any of the terms and conditions set forth herein.