HOCOMA, INC. TERMS OF SALE
The following terms and conditions of sale (these “Terms”) will apply to the sale by Hocoma, Inc., (“Hocoma”) to you (“you” or “Buyer”) of any products ("Product(s)") found on our website at www.valedotherapy.com (“Website”). Hocoma expressly conditions its sale of our Products on your assent to these Terms, to the exclusion of any different, additional or conflicting terms proposed by you.
2. User account
During your first Online Shop order, you can choose to create a user account. This user account provides you with the opportunity to log in at a later point in time and change your settings. When you log in with your login information during subsequent orders, you will not be required to re-enter your shipping information. When setting up your user account, you will be asked to enter your e-mail address and a password. However, you can also order from the Online Shop without creating a user account.
3.1 Hocoma's offerings on the Website are subject to change, meaning that Hocoma reserves the right to accept or reject your order.
3.2 Before completing your order, you will be shown all selected Products for a final check on a screen. You will thus be able to check for any mistakes in the order and may correct them before the final submission of your order. Once you press the order button in the order summary screen, you have submitted your order and thus made a binding offer to purchase these Product(s) or services. Hocoma reserves the right to accept or reject your purchase offer.
3.3 When accepting your offer, Hocoma will display an order confirmation, which you may print out. This on-screen order confirmation indicates that you are legally bound to purchase your selected Product(s) has been concluded. After the on-screen order confirmation appears, you will receive an e-mail confirmation of your orders.
4. Delivery of Products
4.1 The Products will be delivered within a reasonable time after the receipt of your order, subject to the availability of finished Products. Hocoma shall not be liable for any delays, loss or damage in transit.
4.2 Hocoma will deliver the Products using Hocoma’s standard methods for packaging and shipping for such Products.
5. Prices / Payment Terms
5.1 Unless otherwise stated on the Website, all prices are F.O.B/Point of Departure. Product prices are determined based on the applicable prices listed in the Online Shop. The prices do not include applicable value added tax/sales tax in the State or Country to which the Products will be shipped. Delivery and shipping costs are listed separately.
5.2 Payments can only be made via credit card, debit card or via PayPal.
5.3 Unless explicitly otherwise stated on our Website, the price for Products is due immediately upon our acceptance of your binding offer. Subject to availability, Products will be shipped as soon as payment has been received. Once Hocoma has accepted your order, your credit or debit card or your PayPal customer account will be charged.
6. Cancellation and returns
6.1 Any order may be cancelled and the Product(s) returned to Hocoma within fourteen (14) days after delivery of the Product(s). All Products returned shall thereupon become the property of Hocoma. All Products must be returned in saleable condition. Hocoma will accept Products for return only if they are not damaged or used; not custom manufactured or modified for you; in their original packaging, unopened; originally purchased from Hocoma; and are otherwise capable of being resold by Hocoma.
6.2 You must notify Hocoma via the Website of your decision to cancel your order and return the Product(s). Upon your notification, Hocoma will then provide you with instructions and information you can use to return the Products to either Hocoma or Hocoma’s logistics partner.
6.3 When Products are authorized to be returned for any reason other than for breach of warranty, the amount of credit will not be subject to a restocking charge. Returned Product must be sent freight prepaid.
6.4 For the reimbursement, we shall use the same type of payment that you used in the original transaction (i.e., we will credit your credit or debit card or your PayPal account), unless we mutually agree on some other form of payment; we will not charge you any fees for this reimbursement.
7. Limited Warranty
7.1 Hocoma warrants to Buyer that for a period of 12 months from the date of shipment of the Product(s) (the "Warranty Period") these Products will materially conform to Hocoma's published specifications in effect as of the date of manufacture and will be free from material defects in material and workmanship.
7.2 EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 7.1, HOCOMA MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (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.
7.3 Hocoma shall not be liable for a breach of the warranty set forth in Section 7.1 with respect to any Product unless: (i) you provide Hocoma with written notice of the defect, reasonably described, within 7 days of the time when you discover or reasonably ought to have discovered the defect; (ii) Hocoma is given a reasonable opportunity after receiving the notice to examine such Products and you (if requested to do so by Hocoma) return such Products to Hocoma or its designee at Hocoma's cost; and (iii) Hocoma reasonably verifies the claim that the Product is defective.
7.4 Hocoma shall not be liable for a breach of the warranty set forth in Section 7.1 if: (i) you make any further use of these Products after giving such notice; (ii) the defect arises because you failed to follow Hocoma's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products; or (iii) you altered or repaired Products without the prior written consent of Hocoma.
7.5 Subject to Sections 7.3 and 7.4 above, Hocoma may, in its sole discretion, either: (i) repair or replace any Product that is or becomes defective during the Warranty Period (or the defective part) or (ii) credit or refund the price of these Products.
7.6 You are obligated to take appropriate measures to mitigate damages.
7.7 THE REMEDIES SET FORTH IN SECTION 7.5 SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND HOCOMA'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 7.1.
8. Limitation of Liability
8.1 IN NO EVENT SHALL HOCOMA BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, 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 IN NO EVENT SHALL HOCOMA'S 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 TOTAL OF THE AMOUNTS PAID TO HOCOMA FOR THE GOODS SOLD HEREUNDER.
8.3 The limitation of liability set forth in this Section 8 shall not apply to (i) liability resulting from Hocoma's gross negligence or willful misconduct and (ii) death or bodily injury resulting from Hocoma’s acts or omissions.
9.1 Waiver. No waiver by Hocoma of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by Hocoma. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
9.2 Force Majeure. Hocoma shall not be liable or responsible to Buyer, 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 circumstances beyond the reasonable control of Hocoma 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 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.
9.3 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
9.4 No Third-Party Beneficiaries. These Terms is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
9.5 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 New York] without giving effect to any choice or conflict of law provision or rule (whether of [the State of New York] or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the [State of New York].
9.6 Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to these Terms shall be instituted in the federal courts of the United States of America or the courts of the State of [New York] in each case located in the [City of New York and County of New York], and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
9.7 Notices. 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 these Terms, 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.
9.8 Severability. If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.