Terms of Sale
Ver. 2.5; Last Revised 2/01/2017
- SCOPE AND APPLICATION.
THESE TERMS OF SALE (THESE “TERMS”) APPLY TO ALL OFFERS, SALES AND PURCHASES OF THE VIRTUIX OMNITM NATURAL MOTION INTERFACE AND RELATED ITEMS AND ACCESSORIES (THE “PRODUCTS”) SOLD THROUGH VIRTUIX.COM (THIS “SITE”). WE RESERVE THE RIGHT TO AMEND OR UPDATE THESE TERMS OF SALE AT ANY TIME BY POSTING SUCH AMENDED OR UPDATED TERMS ON THIS SITE.
REFERENCES TO “US”, “WE” OR “OUR” SHALL BE CONSTRUED TO MEAN VIRTUIX INC. AND ITS AFFILIATES; AND REFERENCES TO “YOU” OR “YOUR” SHALL BE CONSTRUED TO MEAN THE PURCHASER OF THE PRODUCT THROUGH THIS SITE.
- PERSONAL, NON-COMMERCIAL USE ONLY AND OTHER PROHIBITIONS.
All purchases through this Site are for end-users only, for your personal and non-commercial use of the Products. For any non-personal or commercial use of any Products You must executed a separate Commercial End-User Sales Agreement with Virtuix Inc. Additionally, resale of any Products is prohibited, and any unauthorized resale does not convey any rights under these Terms (including but not limited to any warranty provided with the Products) to any unauthorized or additional purchaser.
- PURCHASES ARE FINAL.
ALL PURCHASES OF THE PRODUCT THROUGH THIS SITE ARE FINAL, NON-CANCELABLE AND NON-REFUNDABLE, EXCEPT AS SPECIFIED IN THE APPLICABLE CANCELLATION POLICY AND EXCHANGE POLICY SET FORTH BELOW.
- OFFER AND ACCEPTANCE.
(a) Any prices, quotations and descriptions made or referred to on this Site with respect to the Products are subject to the Product’s availability and do not constitute an offer. Also, any offer made may be withdrawn or revised at any time prior to Virtuix’s express acceptance of your order (as described below).
(b) While we make every effort to ensure that items appearing on the Site are available, we cannot guarantee that all items are in stock, immediately available, or available for distribution or delivery to your proposed delivery location when you submit your order. We may reject or deny your order without liability if we are unable to process or fulfill it for any reason. If this is the case, we will refund any prior payment that you have made for that Product.
(c) An order submitted by you constitutes an offer by you to Virtuix to purchase the Product on these Terms and is subject to Virtuix’s subsequent acceptance.
(d) Prior to acceptance by Virtuix, an automatic e-mail acknowledgement of your order may be generated. Please note that any such automatic acknowledgement you receive does not constitute a formal acceptance of your order.
(e) Our acceptance of your order takes effect and the contract concluded at the point where such offer is expressly accepted by us dispatching your order and accepting your credit card or other payment for both the Product and shipment of the Product (“Acceptance“). Your order is not complete until you, as the purchaser, receive an express acceptance and full payment for the Product (including the shipment) has been received.
After Acceptance by Virtuix, you may not modify or cancel your order without our prior written consent; however we may cancel your order at any time after Acceptance and prior to shipment for any reason in our sole discretion, and in such event, we will issue you a credit or refund. (the foregoing collectively constitutes our “Cancellation Policy“).
- PRODUCT PRICE AND PAYMENT TERMS.
(a) Prices payable for the Product are those in effect at the time of dispatch or delivery, unless otherwise expressly agreed and confirmed in writing by Virtuix. Prices may be indicated on this Site or an order acknowledgement but the authoritative price in the event of any discrepancy is the price that is notified to you in our Acceptance sent to you.
(b) We also have the right at any time prior to our Acceptance to withdraw any discount and/or to revise prices to take into account increases in costs including, without limitation, costs of any materials, shipping, labor or the increase or imposition of any tax, duty or other levy and any variation in foreign currency exchange rates. We also reserve the right to notify you of any errors in pricing prior to Product shipment. In the event we do so, we will continue with fulfillment of the order upon receipt of your acknowledgment that the Product will be provided in accordance with the corrected price.
(c) We do not guarantee Acceptance of your order for places of delivery located outside of the Virtuix typical delivery locations, which may change periodically. Further, we may notify you of changes to the accepted delivery location, even following Acceptance, in the event of a commercial or regulatory change. We may also direct you to a third-party distributor to fulfill your order in your location.
(d) Unless otherwise specified, the prices quoted are exclusive of: (a) the costs of shipping or carriage to the agreed place of delivery within your delivery location; and (b) the value-added tax and any other tax or duty which must be added to the price payable where applicable. You agree to pay for taxes and shipping of the Product prior to shipment as such costs are estimated by us on the Site when you submit your order.
(e) ALL SHIPPING COST INFORMATION ON OUR SITE IS BASED ON OUR CURRENT UNDERSTANDING OF THE PROPERTIES OF THE FINISHED PRODUCT AND ARE BEST ESTIMATES ONLY AND SUBJECT TO CHANGE. ACTUAL SHIPPING COSTS SHALL BE ASSESSED, AND COLLECTED, PRIOR TO SHIPMENT.
(f) Payment for both the Product and shipment of the Product shall be made prior to shipment. Virtuix will charge your credit or debit cards on file (“Payment Card”) with Virtuix prior to any shipment of the Product under this Agreement. You must maintain a current Payment Card on file with Virtuix. Virtuix reserves the right to verify and confirm payment prior to or following Acceptance of any and all purchases under these Terms. If your Payment Card does not accept the full payment for the Products, then Acceptance by Virtuix is void.
- TERMS OF DELIVERY.
(a) Delivery timeframes specified on this Site or in any order acknowledgement, in an Acceptance or elsewhere, are estimates only. While we endeavor to meet delivery timeframes, we do not undertake to dispatch the Product by a particular date or dates and shall not be liable to you in respect of any delays or failure to do so.
(b) Delivery shall be to a valid address submitted by you and subject to Acceptance (“Delivery Address“). You must verify the Delivery Address on any acknowledgement or Acceptance we provide and notify us without delay of errors or omissions. We reserve the right to charge you for any extra costs arising from changes you make to the Delivery Address after you submit an order.
(c) Except to the extent required as a result of any mandatory rights you have as a consumer under applicable law, you shall not be entitled to reject the Product in whole or in part by reason of short delivery and shall pay in full notwithstanding short delivery or non-delivery unless you notify us in writing of any claim within 5 days of the latest of the date of receipt of the relevant invoice or delivery whereupon you shall pay for the quantity actually delivered. For purposes of these Terms, a short delivery is a delivery of less than the total number of Products ordered.
(d) Except as otherwise expressly provided in these Terms, risk of loss of, and/or damage to the Product, passes to you when placed in your possession or that of any carrier or transport provided by you, whichever shall occur first.
- REJECTION, DAMAGE OR LOSS IN TRANSIT; EXCHANGE POLICY; WARRANTY POLICY.
(a) Statement of Exchange Policy. Except as set forth below and subject to any rights you have under applicable law that cannot be excluded or limited by these Terms:
- we shall not be liable and you shall not be entitled to reject the Product, except for damage to or loss of Product or any part thereof in transit (where the Product is carried by our own transport or by a carrier on our behalf) where we are notified of such damage or loss within five (5) business days of the receipt of the Product (the foregoing constitutes our “Exchange Policy“) in accordance with the Exchange Policy Procedures set forth below;
- we shall not be liable for any damage or losses arising from: (i) defective installation or use of the Product; (ii) the use of the Product in connection with other defective, unsuitable or defectively installed equipment; or (iii) your negligence, improper use or use in any manner inconsistent with our or any other manufacturer’s specifications or instructions;
- where these is a shortage or failure to deliver, or any damage to the Product, we may, in our sole discretion, at our option: (i) in the case of Product shortage or non-delivery, make good on any such shortage or non-delivery; and/or (ii) in the case of damage to the Product and in accordance with the Exchange Policy, replace, exchange or repair the Product upon your return of the Product in accordance with the Exchange Policy procedures set forth below. In the event of (ii), Virtuix, in its sole discretion, also has the option to refund your money as your only remedy.
(b) Exchange Policy Procedures. If the event of damage to the Product meeting the terms and conditions of the Exchange Policy, you should contact support and arrange for pick-up and return of the damaged Product (which must include all original packaging, hardware, accessories materials, and documentation). Upon receipt by Virtuix of the returned Product (including all original packaging, hardware, accessories materials, and documentation) and verification of the damage and subject to the alternative options set forth above, Virtuix may ship out a replacement Product as soon as reasonably possible. Alternatively, if appropriate, Virtuix may provide parts to you, or repair options through an authorized third party, or refund your money as your only remedy.
(c) Exchange Policy Limitations. Your rights of repair or replacement of the Product or any part or parts thereof as part of the Exchange Policy will in all cases be negated or rendered void where: (a) the Product has been sold, purchased, used, or licensed in any manner prohibited by this Agreement; (b) the Product has been modified or altered by persons other than Virtuix or any authorized dealer; (c) the Product has not been returned together with full details in writing of the alleged damage in accordance with the Exchange Policy; (d) the damage to the Product is due (wholly or partially) to mistreatment, improper use or storage or maintenance or installation, or failure to observe any instructions or other directions issued or made available by us in connection with the delivered Product, and/or (e) the Product has been moved out of the delivery location of the Product.
(d) Limited Warranty Policy. In addition to the Exchange Policy, we extend a six-month Limited Warranty on all Products commencing from your date of receipt of the Product for a period of six months and subject to you fulfilling all obligations of these Terms, including but not limited to the indemnification obligations set forth in Section 13. The Limited Warranty is included in the Limited Warranty Statement referenced below, which is incorporated into these Terms and specifically referenced as a condition of these Terms. Our Limited Warranty is limited solely to those Products utilized exclusively for personal and non-commercial use and the Limited Warranty only extends to the original purchaser. Any commercial use of the Product, or any use other than the personal and non-commercial use by the original purchaser, shall terminate and extinguish any and all existing warranty rights under the these Terms including but not limited to extinguishing the Limited Warranty to the Products, unless you have executed a separate Commercial End-User Sales Agreement with Virtuix, in which case the warranty terms as set forth in the Commercial End-User Sales Agreement will prevail. All issues related to Virtuix’s Limited Warranty, the obligations regarding service, support, repair, or replacement of the Product or any parts of the Product shall be governed exclusively by the terms of the Limited Warranty Statement, a copy of which can be found at www.virtuix.com/warranty. Other important restrictions and conditions which apply are referenced in the Limited Warranty Statement.
(e) Territorial Limitations. Any repair, replacement, or support of the Products provided under the Limited Warranty shall be restricted to and provided in the delivery location. Any other support or assistance provided outside or after the expiration of any Limited Warranty shall be restricted to and provided within the delivery location only. Virtuix does not provide warranty, out-of-warranty, or after-market support of any kind outside the original delivery location.
- TERMS OF SOFTWARE LICENSE.
Where the Product supplied includes or embodies any software (the “Software“), the Software is licensed by us or by the relevant licensor/owner subject to the relevant end-user license agreement or other license terms included with the Product and/or on the Site (the “License Terms“). Except to the extent expressly provided by us in writing or under the License Terms, the Software is provided “AS IS” without any warranties, terms or conditions as to quality, fitness for purpose, non-infringement, performance or correspondence with description and we do not offer any warranties or guarantees in relation to the Software installation, configuration or error/defect correction. You are advised to refer to the License Terms for further information regarding the license and use of the Software.
- LIMITATIONS OF LIABILITY.
TO THE MAXIMUM EXTENT LEGALLY PERMITTED, WHETHER OR NOT WE ARE OR WERE AWARE OR ADVISED OF THE POSSIBILITY OF DAMAGES, AND WHETHER OR NOT THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. OUR AGGREGATE LIABILITY (WHETHER FOR BREACH OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY) SHALL IN NO CIRCUMSTANCES EXCEED THE COST OF THE PRODUCT YOU ORDERED AND IN NO EVENT SHALL WE BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST REVENUE, OR COST OF COVER. OUR LIABILITY, IF ANY, SHALL IN NO CIRCUMSTANCES EXTEND TO UNAUTHORIZED AND/OR COMMERCIAL USE OF THE PRODUCT OR TO ANY THIRD PARTIES. YOU EXPRESSLY ACKNOWLEDGE THAT THIS LIMITATION OF LIABILITY PROVISION CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
- PRODUCT SPECIFICATIONS.
(a) THE PRODUCT IS TO BE USED SOLELY FOR PERSONAL AND NON-COMMERCIAL USE AND AS DEMONSTRATED AND INTENDED, AND IN ACCORDANCE WITH ITS AUTHORIZED OR ACCOMPANYING INSTRUCTION MATERIALS. WE SHALL BEAR NO RESPONSIBILITY FOR ANY INCIDENTS OR INJURIES ARISING FROM ANY UNAUTHORIZED USE OF THE PRODUCT.
(b) All Product specifications, illustrations, drawings, particulars, dimensions, performance data and other information on the Site or made available by us are intended to represent no more than a general illustration of the Product and its features and do not constitute a warranty or representation by us that the Product will conform with the same. YOU UNDERSTAND AND ACCEPT THAT ALL REPRESENTATIONS OR IMAGES OF THE PRODUCT ON THIS SITE ARE OF A PRELIMINARY NATURE AND THESE ITEMS ARE INTENDED TO SERVE AS REPRESENTATIVE RENDERINGS AND ARE SUBJECT TO CHANGE. THE FINISHED DELIVERY PRODUCT MAY VARY SIGNIFICANTLY IN APPEARANCE, DIMENSIONS AND/OR WEIGHT.
(c) You are prohibited from rebranding or attempting to pass the product off as originating from any source other than Virtuix.
- DISCLAIMER OF WARRANTIES.
EXCEPT AS EXPRESSLY SET FORTH IN THE SIX-MONTH LIMITED WARRANTY POLICY SET FORTH IN SECTION 8(d), THE PRODUCTS PROVIDED UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY WARRANTIES OR SUPPORT OF ANY KIND, AND NO OTHER REPRESENTATIONS OR CLAIMS OF ANY KIND SHALL BE BINDING ON OR OBLIGATE VIRTUIX AND ITS AFFILIATES, OR OBLIGATE THIRD PARTY MANUFACTURERS AND SUPPLIERS (IF ANY). EXCEPT FOR THE LIMITED WARRANTY SET OUT IN SECTION 8(d), THE PRODUCTS ARE EXPRESSLY PROVIDED TO YOU “AS IS.” THIS DISCLAIMER SHALL BE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. VIRTUIX GRANTS NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE PRODUCTS, AND VIRTUIX AND ITS AFFILIATES AND THIRD PARTY MANUFACTURERS AND SUPPLIERS (IF ANY) HEREBY DISCLAIM ALL OTHER WARRANTIES. ANY OTHER REPRESENTATIONS OR WARRANTIES MADE BY ANY PERSON OR ENTITY, INCLUDING EMPLOYEES OF VIRTUIX, THAT ARE INCONSISTENT HEREWITH SHALL BE DISREGARDED AND SHALL NOT BE BINDING UPON VIRTUIX AND ITS AFFILIATES OR ITS THIRD PARTY MANUFACTURERS AND SUPPLIERS (IF ANY). IN NO EVENT SHALL VIRTUIX BE LIABLE TO YOU OR ANY THIRD PARTY FOR LOST PROFITS, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES UNDER ANY THEORY OF LIABILITY. THIS LIMITATION SHALL APPLY EVEN WHERE VIRTUIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE TERMS STATE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU EXPRESSLY ACKNOWLEDGE THAT THIS DISCLAIMER OF WARRANTIES PROVISION CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
- INDEMNIFICATION OWED TO VIRTUIX.
You shall fully indemnify, defend and hold harmless Virtuix Inc., its manufacturers, suppliers, agents, affiliates and their respective officers, directors, employees and agents (“Indemnified Parties”) from and against any and all loss, damage, costs, liabilities or expenses (including but not limited to reasonable attorney’s fees and professional expenses) (collectively, “Losses”) to the extent arising, directly or indirectly, out of or in connection with any claim(s) resulting from (a) any injury to person or damage to property resulting from any possession or use of the Products whether or not caused by you and/or users of the Virtuix OmniTM, (b) failure of you to follow or to cause employees or agents to follow all Applicable Laws, (c) your failure to maintain the Product as set forth herein or in any instructional materials, (d) your willful misconduct or gross negligence of any Products or under these Terms, including but not limited to your negligence, improper use or storage or maintenance or installation in any manner inconsistent with Virtuix’s or any other manufacturer’s specifications or instructions; (e) a breach or failure by you to fulfill your obligations as set forth herein. For purposes of this Section 13, “Applicable Laws” means all applicable statutes, laws, rules and regulations of any applicable governmental authority, instrumentality or agency, whether promulgated by any state or governmental entity of an applicable territory or the government of the United States, as the same may be enacted, effectuated or updated from time to time, including but not limited to The (United States) Foreign Corrupt Practices Act (FCPA) (15 U.S.C. § 78dd-1, et seq.) For the avoidance of doubt, you acknowledges and agrees that the indemnification provided herein to the Indemnified Parties is full and to the greatest extent allowed by all Applicable Laws.
- REGULATORY CONSENTS, CUSTOMS DUTIES AND EXPORT.
(a) If any license or consent of any government or other authority is required for the acquisition, carriage or use of the Product, you shall obtain such license or consent at your own expense and if necessary produce evidence to us on demand. Any additional expenses or charges incurred by us resulting from such failure shall be met by you.
(b) The Product that is licensed or sold to you under these Terms may be subject to export control laws and regulations in your location or other relevant jurisdiction where you take delivery or use the Product. You shall be responsible for complying with those laws and will not do anything to breach them.
(c) Items entering the European Economic Area (EEA) from outside over a certain value may be subject to customs charges (e.g., where costs are in excess of your personal import allowance). You may be subject to customs charges, import duties and taxes, which are levied when the Product reaches your specified destination. Any such additional charges for customs clearance or import duties or taxes must be met by you, since we have no control over what these charges are. You should contact the local customs office in the relevant jurisdiction for further information on customs policies or duties.
- GENERAL TERMS.
(a) We shall not be liable to you nor held in breach of contract for any loss or damage which may be suffered as a direct or indirect result of us being prevented, hindered or delayed in our performance under these Terms due to the occurrence of any circumstances beyond our reasonable control including, without limitation, any act of God, war, riot, civil commotion or disturbance, government action, embargoes, explosion, fire, flood, storm, accident, strike, lock-out, trade dispute or labor disturbance, breakdown of plant or machinery, or interruption in the supply of power or materials (“Force Majeure”), and in such Force Majeure event we may elect to cancel your order and refund any payments made.
(b) You acknowledge that these Terms supersede and cancel all previous contracts, agreements and working arrangements whether oral or written, express or implied, between us. These Terms prevail over any other terms or conditions contained in or referred to elsewhere or implied by trade, custom or course of dealing. Any purported terms or conditions to the contrary are hereby excluded to the fullest extent legally permitted.
(c) To the fullest extent permitted under applicable law, we reserve the right to modify these Terms upon prior written notice to you with effect for the future – subject to your right to reject, by way of written notice, our modifications to these Terms with respect to any orders for which Acceptance, but not yet fulfillment, has occurred.
(d) No waiver of any term or condition of these Terms shall be effective unless made in writing and signed by us. The waiver of any breach of any Term shall not be construed as a waiver of any subsequent breach or condition.
(e) The construction validity and performance of these Terms shall be governed exclusively by the laws of the State of Texas including Texas’ choice-of-law provisions. You agree that all disputes you might bring or participate in as a party against Virtuix, Inc., or any affiliated company, if any, shall be initially subject to mediation to occur in the State of Texas. In the event mediation is not successful, you then agree to engage in binding arbitration also to occur in Texas with each side bearing its own fees and costs. Mediation and binding arbitration are the exclusive dispute resolution forums you would have and you agree to these terms.
(f) We may assign, transfer or otherwise delegate our rights and obligations under these terms, in whole or in part, at any time without notice to you. You may not assign these Terms, or transfer any rights or license sold hereunder.
By purchasing the Product, you acknowledge that you have read these Terms and agree to be bound by them.
Last revised 2/01/2017