TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS CONTAIN VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU AS A BUYER OF PRODUCTS UNDER THE WWW.SMOOV.COM WEBSITE. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
THESE TERMS AND CONDITIONS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
BY PLACING AN ORDER FOR PRODUCTS, BUYER ACCEPTS AND IS BOUND BY THESE TERMS AND CONDITIONS, WHICH FORM AN AGREEMENT BETWEEN ALBER USA LLC (“SELLER”) AND YOU, THE BUYER OF PRODUCT(S) (“BUYER”).
1. Acceptance, Governing Provisions. The following Terms and Conditions (“Terms”) shall apply to all of Buyer’s product purchases through the website www.smoov.com (“Online Shop”). The Buyer will be deemed to have accepted these Terms by placing an order to purchase products on the Online Shop. No additional or different terms or conditions will be binding upon Seller, unless specifically agreed to in writing and signed by duly authorized personnel of Seller. Failure of Seller to object to provisions contained in any purchase order or other communication from Buyer shall not be construed as a waiver of these Terms nor an acceptance of any such provisions. No order accepted by Seller may be canceled or altered by Buyer, except as expressly described in these Terms.
2. Orders, Order Confirmation and Price.
2.1. Seller offers the products shown or described on the Online Shop. Buyer can purchase products on the Online Shop by clicking the “Buy Now” button, subject to these Terms. Some products, such as the Smoov, require that Buyer receive a confirmation notice from Seller prior to purchase. Seller reserves the right, without notice to Buyer, to withdraw products from the Online Shop at any time.
2.2. Until the Buyer clicks the “Buy Now” button on the Online Shop, the order process can be canceled at any time or the information provided can be edited by clicking the “Change” button, next to the applicable field on the Online Shop.
2.3. By clicking the “Buy Now” button on the Online Shop, Buyer makes a binding offer to purchase the ordered product under these Terms and at the price indicated in the order, plus all applicable taxes. Seller may send an order confirmation email to acknowledge receipt of the order, which will contain the essential characteristics of the Buyer’s order. Seller reserves the right at any time, even after Seller sends Buyer a confirmation email, to decline or cancel the order or to limit order quantities for any reason, including errors or suspected fraud. All prices on the Online Shop are subject to change without notice and such new pricing will apply to new orders or orders that have not yet been completed or finalized by Buyer.
3. Payment. By clicking the “Buy Now” button on the Online Shop, Buyer agrees to accept and pay for the products ordered, plus all applicable taxes. Buyer may pay via the acceptable payment method indicated at checkout, which may include credit card or other methods. Buyer will be charged before the product has shipped. Seller will only ship products after the receipt of payment. Buyer may cancel an order prior to product shipment by notifying Seller in writing at email@example.com, where the subject line of any such email must indicate “Order Cancellation.”
4. Delivery, Risk of Loss and Transportation Costs.
4.1. Products will be shipped to an address designated by Buyer in the United States mainland only, so long as such address is complete and complies with the shipping restrictions contained on the Online Shop. Delivery costs are included in the final price indicated at the time Buyer completes the order by clicking “Buy Now” button on the Online Shop. Delivery of products shall be executed by Seller or by a carrier selected by Seller. All risk of loss and title for products pass to Buyer upon delivery of the products to the carrier. The method and route of shipment shall be at the discretion of Seller. Delivery is subject to Buyer, or Buyer’s designee, signing for receipt of product delivery. Seller assumes no responsibility if delivery cannot take place because Buyer has provided incorrect or incomplete address information, or if the delivery cannot be made because Buyer, or Buyer’s designee, are not available for signature as described above.
4.2. The delivery times specified by Seller, if any, will commence (for calculation purposes) when an order confirmation email has been sent to Buyer.
4.3. Buyer may not cancel or modify an order as a result of delays in delivery if the delivery occurs, or is scheduled to occur, within a reasonable time after the specified delivery time, or if the delay is beyond the reasonable control of Seller as, for example, set forth in Section 4.1, Section 6 (Partial Shipments, Claims and Delays) or Section 16 (Force Majeure) of these Terms.
4.4. If there are circumstances preventing the delivery of products, Seller will promptly inform Buyer via email about the unavailability of the ordered product and suggest comparable products of the same or higher value and quality, if available. If Buyer does not wish to replace the ordered product, the order will be canceled, and any consideration already received by Seller for such order will be reimbursed to Buyer.
4.5. Claims for damages on the part of the Buyer shall be subject exclusively to the terms in Section 10 (Warranty) and Section 13 (Limitation of Liability) of these Terms.
5. Inspection and Acceptance. It is Buyer’s responsibility to inspect product upon receipt for damage attributable to the carrier and to make claims directly to the carrier for such product damage. Sellers furnishing of the product to Buyer constitutes acceptance of the product, unless Buyer notifies Seller in writing of shipping damage within 10 days after receipt of shipment.
6. Partial Shipments, Claims and Delays. Where applicable, seller will attempt to combine multiple orders for a single shipment. However, Seller reserves the right to make delivery in installments, unless otherwise expressly stipulated herein, all such installments to be separately charged to Buyer’s credit card when payment is due, without regard to subsequent deliveries. Orders including stock merchandise and non-stock items may be separated at Seller’s discretion so that prompt shipment can be made on stock items. Delay in delivery of any installment shall not relieve Buyer of its obligations to accept remaining deliveries. Claims for shortages or other errors in delivery must be made in writing to Seller within 5 days after receipt of shipment and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer. Claims for loss or damage to products in transit should be made to the carrier and not to Seller.
7. Taxes and Other Charges. Any manufacturer’s tax, retailer’s occupation tax, use tax, sales tax, excise tax, duty, custom inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between Seller and Buyer, shall be paid by Buyer in addition to the prices stated in an order or invoiced for the product. In the event Seller is required to pay such tax, fee or charge, Buyer shall immediately reimburse Seller therefore; or, in lieu of such payment, Buyer shall provide Seller at the time the order is submitted with an exemption certificate or other document acceptable to the authority imposing the same.
8. Smoov 30 Day Trial. Under Seller’s 30-day trial, which is subject to these Terms, Buyer may return its Smoov product to Seller up to 30 days from the date of shipment for a full credit of the amount paid for such product. Credit is not available for any Smoov product returned after such 30-day period. If accessories were purchased at the same time Buyer purchased the Smoov product, such credit will include the amount invoiced for such accessories only if returned with the product. Such credit will be paid after Seller has inspected the returned product and accessories to confirm receipt of all items. Seller reserves the right to issue a partial credit if there are any missing items or damage. This process may take up to 30 days from Seller’s receipt of the returned product and accessories to complete. Buyer must follow the return process described in Sections 11 and 12 of these Terms. The 30-day trial only applies to the Smoov product and accessories purchased in the same order.
9. Changes. Seller reserves the right, without notice to Buyer, to change the price, design and construction, and the type of materials used in the manufacture of any of the products displayed on the Online Shop, or otherwise listed in its catalogs, supplements and price lists.
10. Limited Warranty.
10.1. What the Warranty Covers. Subject to the terms and conditions of Section 10, Seller warrants that the Smoov product will be free from defects during the Warranty Period (“Warranty”). All other products purchased on the Online Shop are provided as is with no warranty. If there is a conflict between the Warranty described in Section 10 and any warranty included in the Smoov product manual, then the Warranty described in Section 10 will control. The Warranty gives Buyer specific legal rights. Buyer may also have other legal rights, which may vary from state to state.
10.2. What is the Warranty Period. Coverage under the Warranty starts on the date Seller ships the product to Buyer and ends upon the earlier of: (i) 24 months (or 12 months for lead-gel battery components) from such shipment, or (ii) any subsequent product sale or other transfer of title to any other person (“Warranty Period”). Seller reserves the right to withhold coverage under the Warranty if the Buyer is more than 30 days past due on any payment or invoice related to the product covered by the Warranty.
10.3. Who can enforce the Warranty. The Warranty is extended only to the original Buyer who purchases a product new and unused from Seller. The Warranty is not extended to any other person or entity and it is not transferable or assignable to any subsequent purchaser or owner. Coverage under the Warranty will end upon any such subsequent sale or other transfer of title to any other person. The Warranty is valid only in the United States mainland.
10.4. What is required for Warranty coverage. A copy of the Seller’s receipt or invoice is required for coverage under the Warranty. For serialized products, Buyer must provide Seller with the product serial number to obtain Warranty coverage. To obtain Warranty coverage, Buyer must notify Seller in writing of the defect no later than fourteen (14) days from discovery of such defect. Such notice must include a description of the alleged product defect. After Seller receives the returned product, Seller will verify the defect. If the product has a defect covered under the Warranty, Seller will handle the Warranty claims as described in Section 10.5.
10.5. What will Seller do if a Warranty claim is submitted. If within the applicable Warranty Period the product or such components shall be proven to Seller’s satisfaction to be defective, such product or component shall, at Seller’s option, be repaired with refurbished or new parts, or replaced with a new or refurbished product, free of charge, including all necessary shipping costs. Seller’s sole obligation and the Buyer’s exclusive remedy under the Warranty shall be limited to such repair or replacement. Product repairs or replacements shall not extend the Warranty Period – coverage for repaired or replaced products shall end when the Warranty Period expires.
10.6. What is NOT covered by the Warranty. The warranty does not include wear and tear items that have exceeded their expected life, or improper handling or misuse of the product, including but not limited to:
• products where the serial number has been tampered with or removed;
• wear parts, such as brake pads, tires, tire covers, control elements and batteries;
• defects caused by normal wear, incorrect handling including failure to comply with the instructions in the operating manual, accidents, damage due to recklessness or negligence, damage caused by fire, water, force majeure and other causes that are outside Seller’s sphere of influence (e.g., connection to the wrong voltage, use of impermissible overload fuses, repair of the product by persons who have not been authorized by Seller, improper assembly, modification of the product, etc.); or
• maintenance tasks due to daily use (e.g., replacement of blown fuses, adjustment of the chains, etc.).
10.7. Buyer’s obligations. Upon delivery of the product, Buyer will receive a detailed user manual, which Buyer is obligated to read before first use of the product. Buyer must care and maintain for the product as described in the user manual and must take the instructions in the user manual into account for each use of the product. All Warranty rights shall be waived and/or excluded if the product defect or the complaint is based on improper maintenance or handling of the product. If Buyer has any questions regarding the product after reading the manual, then Buyer must direct such questions, in writing, to Seller at firstname.lastname@example.org or the address on the back of the user manual.
10.8. How to get Warranty service. For Warranty service, Buyer must contact Seller’s Service Department at email@example.com or call (888) 426-8581 during normal working hours (9:00am to 5:00pm ET Monday to Thursday and 9:00am to 4:00pm ET on Friday, excluding holidays recognized by Seller).
10.9. Limitations and Exclusions. THE WARRANTY DESCRIBED IN SECTION 10 SHALL NOT APPLY TO PRODUCTS SUBJECTED TO NEGLIGENCE, ACCIDENT, IMPROPER OPERATION, MAINTENANCE OR STORAGE, SOOT OR SMOKE-FILLED ENVIRONMENTS, OR OTHER THAN NORMAL APPLICATION, USE OR SERVICE, OR TO DEFECTS OR DAMAGE TO PRODUCTS MODIFIED WITHOUT SELLER’S EXPRESS WRITTEN CONSENT (INCLUDING, BUT NOT LIMITED TO, MODIFICATION THROUGH THE USE OF UNAUTHORIZED PARTS OR ATTACHMENTS) OR TO DEFECTS OR DAMAGE TO PRODUCTS FROM REPAIRS MADE TO ANY COMPONENT WITHOUT THE SPECIFIC CONSENT OF SELLER OR TO PRODUCTS DAMAGED BY CIRCUMSTANCES BEYOND SELLER’S CONTROL.
THE EXPRESS WARRANTY IN SECTION 10 IS EXCLUSIVE AND IN LIEU OF ANY OTHER WARRANTIES WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THE SOLE REMEDY FOR VIOLATIONS OF ANY WARRANTY WHATSOEVER, SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF THE DEFECTIVE PRODUCT PURSUANT TO THE TERMS CONTAINED HEREIN. THE APPLICATION OF ANY IMPLIED WARRANTY WHATSOEVER SHALL NOT EXTEND BEYOND THE DURATION OF THE EXPRESS WARRANTY PROVIDED HEREIN.
11. Returns. To return the Smoov product under the Warranty or the 30-day trial described in Section 8 of these Terms, Buyer must fill out the Return Shipment form included in the original product packaging, and return the form to Seller with the returned product. Buyer must follow the instructions provided on the form and stated in Section 12 of these Terms. The product must be repackaged in the original Seller packaging to comply with lithium ion battery shipping regulations and to prevent damage to the product. If the product is returned in a non-approved carton, service charges may apply. Shipping charges are only covered by Seller when the product is returned using the return shipping label provided by Seller or its representative.
12. Shipping Lithium Ion batteries. The following shipping instructions are for ground shipments only. When air shipments are required, Buyer must contact Seller’s Customer Service at firstname.lastname@example.org for further information. For safety reasons, special rules and restrictions apply when shipping lithium ion batteries, which are used in the Smoov product. Buyer is responsible to understand such requirements and comply with them when shipping lithium ion batteries. Buyer must use the original Seller packaging to return the product(s) as such packaging has the necessary imprints and items for the shipment of lithium ion batteries. When using Seller’s original packaging, the Buyer must ensure the lithium ion battery warning labels are readable. The labels should look like:
If the original packaging is damaged or the lithium ion battery warning labels are unreadable, Buyer must use similar new packaging that is strong and rigid and apply new lithium ion battery warning labels. Buyer understands that it is a legal requirement that packaging for products containing lithium ion batteries must bear proper warning labels. Buyer may request new warning labels by contacting Seller’s Customer Service at email@example.com. Buyer must pack the product securely in the packaging in a manner that does not permit the product to move back and forth in the packaging or to be accidentally turned on. Buyer must use the filling material, if any, contained in the original packaging.
Buyer shall not return to Seller or ship any damaged lithium ion batteries (e.g., battery fluid leakage, etc.). Buyer shall dispose of such damaged batteries in accordance with local laws, regulations, or ordinances or with a local hazardous materials collection point. Seller reserves the right to request proof of the disposal of such goods. Buyer should receive proof of collection documentation from the hazardous materials collection center. Buyer may contact Seller’s Customer Service at firstname.lastname@example.org for further information.
13. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM OR ARISING OUT OF OR RELATED TO USE OF THE PRODUCT, ANY ORDER OR SELLER’S PERFORMANCE OR FAILURE TO PERFORM ANY OF ITS OBLIGATIONS UNDER ANY ORDER, WHETHER OR NOT SELLER HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS. BUYER AGREES THAT SELLER’S LIABLITY IN ANY DISPUTE WILL BE CAPPED AT THE TOTAL AMOUNT BUYER PAID FOR THE ORDER OR PRODUCT AT ISSUE. SOME STATES DO NOT ALLOW LIMITATION OF CERTAIN DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO BUYER.
SUBJECT TO SECTION 18, ANY LEGAL ACTION AGAINST SELLER IN CONNECTION WITH THE PURCHASE OF PRODUCTS INCLUDING BUT NOT LIMITED TO, PRICES, PRODUCT PERFORMANCE, OR BREACH OF WARRANTY, UNDER ANY THEORY, MUST BE COMMENCED, WITHIN TWO (2) YEARS OF THE DATE OF PURCHASE. THEREAFTER, SUCH ACTIONS ARE BARRED, OTHER STATUTES OF LIMITATIONS NOTWITHSTANDING. BUYER AGREES TO THIS LIMITATION OF ACTIONS BY PLACING AN ORDER WITH SELLER.
14. Personal Use, Export. Buyer acknowledges and agree that: (i) the products are for personal use only, that Buyer will not resell the product for commercial purposes, and that Buyer is not purchasing the product for resale or further distribution or other transfer having a commercial basis; (ii) the product is a medical device and subject to applicable regulations of the U.S. Food and Drug Administration; and (iii) Buyer will not export the product from the United States, unless such export is in compliance with all applicable export control laws or regulations promulgated and administrated by the United States government.
15. Intellectual Property Use and Ownership. Buyer acknowledges and agrees that Seller is and will remain the sole and exclusive owner of all intellectual property rights in and to the products and any related specifications, instructions, documentation or other materials, including, but not limited to, all related copyrights, patents, and trademarks and other intellectual property rights. Buyer does not and will not have or acquire any ownership of these intellectual property rights in or to the products.
16. Force Majeure. Seller will not be liable for failure to perform any of its obligations under these Terms during any period in which performance is delayed by fire, storm, flood, strike, lockout, accident, terrorism, endemic, pandemic, civil commotion or other national disasters, cyber-attack, war, riot, embargo or the action, regulation, law, order restriction of any government authority, department, commission, branch, agency, court or other similar government institutions or Seller’s inability to obtain any raw materials, equipment, labor or transportation at prices or on terms Seller deem practicable from Seller’s usual sources of supply provided that Seller notify Buyer of such delay. Seller is not subject to any liability to Buyer for failing to perform during the period such inability exists.
17. Governing Law. Regardless of where Buyer accessed the Online Shop, Buyer agrees that the laws of the State of Ohio, without reference to its principles of conflicts of laws, shall govern these Terms and their interpretation and construction.
18. Dispute Resolution and Binding Arbitration.
18.1. BUYER AND SELLER ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT BUYER WOULD HAVE IF BUYER WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
BUYER AGREES THAT ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN BUYER AND SELLER ARISING FROM OR RELATING IN ANY WAY TO BUYER’S PURCHASE OR USE OF THE PRODUCTS, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
18.2. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section 18. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879. The Federal Arbitration Act will govern the interpretation and enforcement of this Section. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or these Terms is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
18.3. Buyer agrees to an arbitration on an individual basis. In any dispute, NEITHER BUYER NOR SELLER WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction in Ohio. All arbitration proceedings, filings, documents, communications and results shall be maintained in confidence by Buyer.
If any provision of this arbitration provision is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
19.1. No Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person other than Buyer.
19.2. Assignment. Buyer may not assign any of its rights or obligations under these Terms. Seller may assign all or part of Seller’s rights and obligations to Seller’s parent, or any of Seller’s subsidiaries, divisions or third parties selected by Seller without notice to Buyer.
19.3. Waiver. No waiver of or failure to enforce any provision of these Terms will be binding unless in writing and signed by the party against whom enforcement of the waiver is sought. No waiver by any party of any provision will be deemed a waiver of any subsequent breach of that same provision or of any other provision of these Terms.
19.4. Severability. If any provision of these Terms is held invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
19.5. Notices. Any notices to be given by either party to the other will be made by personal delivery or overnight courier, in writing, unless otherwise expressly stated in these Terms. If Seller is providing notice to Buyer, Seller will use the same address that Seller used to ship Buyer the product. If Buyer is providing notice to Seller, Buyer will use: Alber USA LLC, 1005 International Drive, Oakdale, PA 15071 Attn: General Manager with cc: Legal Department, One Invacare Way, Elyria, OH 44035. Either party may provide the other party notice of a different address, provided that such notice is made in writing and states that the different address is to be used for notice under these Terms.
19.6. Section Headings. The section headings used in these Terms are for convenience only and will not be given any legal import.