THIS TERMS AND CONDITIONS (“AGREEMENT”) CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU (“YOU,” “YOUR,” OR “YOURS”), AND MAD PSI, LLC, A LIMITED LIABILITY COMPANY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF CALIFORNIA, ITS SUBSIDIARIES, AFFILIATES, AGENTS AND/OR LICENSORS (“COMPANY,” “WE,” OR “US”) (COLLECTIVELY, THE “PARTIES,” AND EACH A “PARTY”).
CAREFULLY READ THIS AGREEMENT BEFORE PROCEEDING. IF YOU DO NOT AGREE TO THIS AGREEMENT IN ACCORDANCE TO SECTION 2 OF THIS AGREEMENT, YOU WILL NOT BE PERMITTED TO:
This Agreement is made with reference to the following facts:
NOW, THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement, the receipt and sufficiency of which is acknowledged, the Parties hereby agree as follows:
This Agreement governs the following:
This Agreement is a binding agreement.
Please review this Agreement periodically, because Company may modify this Agreement at any time in its sole discretion in accordance with Section 47 of this Agreement.
You agree to abide by this Agreement, as it may be amended or otherwise modified by Company from time to time in its sole discretion, by:
You agree to give Company payment for products and services purchased from Company in full and in advance.
Company shall have no obligation to provide products or services to you until you pay in full.
Payments shall be processed through Sites, Paypal, or Square (“Payment Processors”), unless otherwise authorized by Company in writing.
Company may accept any payment method supported by Payment Processors, including, but not limited to, credit card payments.
United States Dollars (USD) shall be the only acceptable form of currency.
Your electronic order confirmation, or any form of confirmation, does not signify Company’s acceptance of your order.
Company reserves the right to accept or deny shipment to anyone for any reason.
Company reserves the right to require additional information before processing any order.
If an order appears fraudulent in any way, Company reserves the right to cancel the order and notify the cardholder and the proper authorities.
Company may allow you to place a deposit for a product.
Your deposit is non-refundable.
Despite your deposit, all rights, interest, and title to the product shall remain with Company, in accordance with Section 9 of this Agreement.
Company may allow you to place a pre-order for a product not yet in production or otherwise not in stock.
Company estimates the pricing for such pre-orders, including, but not limited to, the pricing for the product and the pricing for shipping & handling the product.
Company does not guarantee the estimates given for such pre-orders.
The actual pricing for such pre-orders may vary from the estimates given by Company. In the event the estimated price for your pre-order is lower than the actual price for your pre-order, Company may require you to pay the difference.
Your special orders are non-cancelable and non-refundable by you.
All rights, interest, and title to products shall remain with Company until:
When your order requires or authorizes Company to ship products by carrier to you, all risk of loss or damage to the products shall pass from Company to you at the earlier of the following events:
When your order requires or authorizes you to take delivery of products from Company or any other address, including, but not limited to, picking up products from Company or any other address, all risk of loss or damage to products shall pass from Company to you when:
When, in accordance with Section 22 of this Agreement, you are returning or exchanging products, all risk of loss or damage shall remain with you until Company receives possession of the products. To be clear, no risk of loss or damage shall pass to Company if the products arrive at Company but are not yet in possession of Company, including, but not limited to, when the products are dropped off or are otherwise delivered to Company without a Company representative or agent actually receiving possession of the products.
“Intellectual Property” means any and all intellectual property and tangible embodiments thereof, including without limitation inventions, discoveries, designs, specifications, developments, methods, modifications, improvements, processes, know-how, show-how, techniques, algorithms, databases, computer software and code (including software and firmware listings, assemblers, applets, compilers, source code, object code, net lists, design tools, user interfaces, application programming interfaces, protocols, formats, documentation, annotations, comments, data, data structures, databases, data collections, system build software and instructions), mask works, formulae, techniques, customer and potential customer lists, and specific customer requirements, trade secrets, graphics or images, text, audio or visual works, written, printed, graphic, or electronically recorded materials, materials that document design or design processes, or that document research or testing, schematics, diagrams, product specifications and other works of authorship.
“Intellectual Property Rights” means, collectively, all rights in, to and under patents, trade secret rights, copyrights, trademarks (including all associated goodwill), service marks, trade dress and similar rights of any type under the laws of any governmental authority, including without limitation, all applications and registrations relating to the foregoing.
Nothing in (1) this Agreement; (2) your use of Sites; (3) your use of Company’s prototypes, plugs, molds, or products; (4) your use of Company’s services; (5) your communications or correspondences with Company; (6) your transactions with Company, including, but not limited to, your purchases of Company’s products and services; and (7) any other conduct, activity, or relationship directly or indirectly related to Company, shall sell, transfer, assign, license, or grant to you any rights, interest, or title, expressly, by implication, by estoppel or otherwise, to Company’s Intellectual Property or Intellectual Property Rights.
Company hereby retains and reserves all rights, interest, and title to Company’s Intellectual Property or Intellectual Property Rights.
Company does not waive any rights to Company’s Intellectual Property or Intellectual Property Rights.
Company has the exclusive right to (1) manufacture or reproduce copies of Company’s prototypes, plugs, molds, and products; (2) prepare derivatives of Company’s prototypes, plugs, molds, and products; and (3) use Company’s molds (“Company’s Exclusive Rights”).
Nothing in (1) this Agreement; (2) your use of Sites; (3) your use of Company’s prototypes, plugs, molds, or products; (4) your use of Company’s services; (5) your communications or correspondences with Company; (6) your transactions with Company, including, but not limited to, your purchases of Company’s products and services; and (7) any other conduct, activity, or relationship directly or indirectly related to Company, shall sell, transfer, assign, license, or grant to you any rights, interest, or title, expressly, by implication, by estoppel or otherwise, to Company’s Exclusive Rights.
Company hereby retains and reserves all rights, interest, and title to Company’s Exclusive Rights.
Company does not waive any rights to Company’s Exclusive Rights.
Company discontinuing use, development, sale, manufacturing, or production of any prototypes, plugs, molds, or products shall not constitute abandonment or waiver of Company’s Exclusive Rights.
You hereby represent, warrant, and covenant to Company that you will not:
The Parties understand that in the event you breach Section 13 of this Agreement, it would be impracticable or extremely difficult to fix actual damages to Company.
As a result, the Parties desire to make a commercially reasonable estimate of the damages Company would incur in the event you breach Section 13 of this Agreement and to establish that estimate as liquidated damages.
In the event you breach Section 13 of this Agreement, Company will recover from you as liquidated damages the following amounts:
The Parties acknowledge that this Section 14 of this Agreement:
This Section 14 of this Agreement only applies to Section 13 of this Agreement. Nothing in this Section 14 of this Agreement shall serve as a waiver of any rights or remedies for breach of other parts of this Agreement or events not enumerated in this Section 14 of this Agreement, all of which are expressly reserved.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR LOSSES OR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY, ACCIDENTS, INCORRECT INSTALLATION OF PRODUCTS, MISUSE OF PRODUCTS, MODIFICATION OF PRODUCTS, UNINTENDED USE OF PRODUCTS, UNUSUAL STRESS ON PRODUCTS, BAD JUDGMENT, ACT OF NATURE OR GOD, OR ANY INCIDENTAL, SPECIAL, DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF ONE DOLLAR ($1.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You agree to indemnify, defend, and hold harmless Company, its owners, managers, officers, directors, employees, agents, attorneys, vendors, and other representatives, to the fullest extent permitted by law, from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, deficiencies, interest, penalties, attorney’s fees and costs, and accounting fees that Company may incur or suffer arising out of or relating to:
Prices on Sites are subject to change without notice.
Prices on Sites may be incorrect or not up-to-date.
Company shall have the right to refuse or cancel any orders you have placed for products listed with an incorrect or not up-to-date price.
Inventory on Sites are subject to change without notice.
Inventory on Sites may be incorrect or not up-to-date.
Company shall have the right to refuse or cancel any orders you have placed for products listed with an incorrect or not up-to-date inventory.
In the event there is a backorder for a product you have ordered, Company will ship your order as soon as the product becomes available.
You shall have the option to cancel your backorder the earlier of (1) twenty-four (24) hours from when you placed your order; (2) before the product becomes available; and (3) before Company has forwarded your order to the manufacturer. Otherwise, you shall not be able to cancel your backorder.
In the event you cancel your backorder, Company may charge you a thirty percent (30%) cancellation fee.
Product descriptions and specifications on Sites are subject to change without notice.
Product descriptions and specifications on Sites may be incorrect or not up-to-date.
Company may list the weight and dimensions of products. Company estimates the weight and dimensions of products. Company does not guarantee the estimates given for the weight and dimensions of products. The actual weight and dimensions of products may vary from the estimates given by Company.
Your purchases are non-refundable, unless otherwise authorized by Company in writing.
If Company requires a response from you for an authorized refund, failure to respond within seven (7) days shall constitute a waiver of your authorized refund and any other rights and remedies.
Authorized refunds shall not exceed the net payment of the original purchase price.
Company shall not be responsible for:
In accordance with Section 23 of this Agreement, in the event you cancel your order, Company may charge you a thirty percent (30%) cancellation fee.
In accordance with Section 24 of this Agreement, in the event you return a product, Company may charge you a thirty percent (30%) restocking fee.
Company shall not accept any returns or exchanges, unless authorized in writing.
You shall be responsible for all shipping and handling costs for returns or exchanges, including, but not limited to, shipping and handling costs both ways, to and from Company or any other addresses, for products returned and exchanged.
You shall return the product insured for the retail price of the product. The retail price of the product may be greater than your purchase price of the product, because your purchase price of the product may have included a discount.
You shall use acceptable means of packaging to prevent damage to product during shipping, including, but not limited to:
You shall email Company the tracking number for any shipments.
In accordance with Section 10 of this Agreement, Company is not responsible for lost, stolen, or damaged products. Company recommends that you use some type of delivery confirmation for all returned and exchanged products to ensure proper delivery.
In accordance with Section 24 of this Agreement, in the event you return a product, Company may charge you a thirty percent (30%) restocking fee.
In the event you cancel your order, Company may charge you a thirty percent (30%) cancellation fee.
In the event you return a product, Company may charge you a thirty percent (30%) restocking fee.
You shall be responsible for all shipping and handling costs.
For shipments outside of the United States of America, you are responsible for all costs levied by the destination country, including, but not limited to, import taxes, customs duties, customs fees, and brokerage fees.
You shall be responsible for assuring the product can be lawfully imported to the destination country. When ordering from Company, you are the importer of record and must comply with all laws and regulations of the destination country. Orders shipped outside of the United States may be subject to import taxes, customs duties, and customs fees levied by the destination country. You may be subject to such import taxes, customs duties, and customs fees, which are levied once a shipment reaches your country. Additional charges for customs clearance must be borne by you; Company has no control over these charges and cannot predict what they may be. Customs policies vary widely from country to country; you should contact your local customs office for more information. When customs clearance procedures are required, it can cause delays beyond Company’s original delivery estimates.
You should not assume that Company has insured your shipment, unless explicitly stated by Company in writing.
Depending on the shipping company used, Company may not insure your shipment for the product’s full value, because the product’s full value may exceed the shipping company’s maximum insured value limit for that particular product.
In such cases, third party private insurance may be available as a supplement upon request.
Company reserves the right to use third party private insurance without disclosing Company’s use of third party private insurance to you.
Company considers many factors when choosing the appropriate shipping company to deliver your product, including, but not limited to, shipping and handling costs, reliability, transit time, convenience, availability, and accounts.
You may suggest using a different shipping company than the one Company chose. Company shall consider your suggestion, however, reserves the right to choose another shipping company.
When available, Company may send you the tracking number for your shipment via email.
Company estimates delivery times and dates and Company does not guarantee the estimates given.
The actual delivery time and date may vary from the estimates given by Company.
Delivery times and dates vary greatly depending on a variety of variables including, but not limited to, the product ordered, whether the product is in production, whether there is a backorder, the product’s country of origin, the destination address, the time of year, among other variables.
Company packs all products carefully to prevent damage during shipping. However, damage may still occur.
You shall inspect the packaging and the products carefully upon receiving the shipment, then accept the shipment and notate any product and packaging damages and irregularities on the freight bill or receipt in driver’s presence. Product and packaging damages and irregularities include, but are not limited to, crushed, torn, punctured, or broken products or packaging. A signed freight bill or receipt without any notation indemnifies the carrier as well as Company from any further damage claims.
You shall not refuse shipment or return the shipment without prior approval by Company in writing, because your right to make a damage claim may be denied.
You shall retain all boxes, packing materials, and damaged products for the carrier’s damage inspector to inspect.
Discovery of damages after a clear delivery becomes your responsibility.
You shall notify carrier and Company of all damages within twenty-four (24) hours of receiving your shipment.
In cases of damage with proper notation on freight bill or receipt, the carrier shall determine whether to pay you for the repair cost or replacement value of the damaged goods after damage inspection.
All disputes about the settlement amount shall be addressed with the carrier.
Company, under no circumstances, shall be liable for the damaged product or for subsequent settlement of the claim with the carrier.
All risk of loss or damage shall be in accordance with Section 10 of this Agreement.
If you receive an incorrect product due to a shipping error by Company, you shall inform Company of the shipping error within twenty-four (24) hours of receipt of shipment. Company may then issue a Call Tag to pick up the incorrect product and Company shall ship the correct product to you at no additional charge.
Due to the inherent characteristics of hand-laid fiberglass and carbon fiber, there is a possibility of cosmetic blemishes on such products. This may include, but is not limited to, spider cracks, haziness or fogginess, distorted carbon fiber weave, warping, and waviness. While Company strives to minimize such blemishes, they are inevitable and occur on products from even the best manufacturers. In addition, due to the tolerances of hand-laid components, fiberglass and carbon fiber components generally do not fit as well as the original OEM components they are intended to replace. Company makes business judgments, such as attempting to do multiple test fit sessions and attempting to make products using high quality molds, to try and make the fitment as good as possible. However, inferior fitment is very common with all aero parts from even the best manufacturers. Thus, shall be your responsibility to take all parts to a qualified body shop to properly prep and fit aero parts. Products with a clear coat or primer should still be taken to a body shop for another layer. Company makes no guarantee that any aero parts fit as well as OEM whether explicitly or implicitly stated. All body parts are sold “as is.”
You understand that:
You shall not under any circumstance:
You acknowledge that:
You agree to waive any claims of defamation, libel, slander, or slander per se against Company, its attorneys, partners, affiliates, shareholders, owners, directors, officers, co-branders, subsidiaries, parents, employees, and agents and are hereby advised that Sites may contain negative opinions or references that may be true or untrue, with which you may agree or disagree.
Everything and anything contained on Sites is purely opinion, even if the statement has factual information embedded in it.
No information on Sites is absolute.
In any event, if a claim is brought against Company, all parties to the action agree to indemnify and hold harmless, Company, its attorneys, partners, affiliates, shareholders, owners, directors, officers, co-branders, subsidiaries, parents, employees, and agents in accordance with Section 17 of this Agreement.
Company may hyperlink to, or otherwise make, third party information available on Sites.
Company does not endorse or approve of any such third party information or such third parties.
You acknowledge that Company is not responsible for the operation of or content located on or through any such third party websites.
Unless otherwise set forth in a written agreement between you and Company, you shall adhere to Company’s hyperlinking policy as follows:
Company reserves the right to revoke its consent to the hyperlink at any time and in its sole discretion.
In accordance with the Digital Millennium Copyright Act (“DMCA”) http://lcweb.loc.gov/copyright, Company has designated an agent to receive notifications of alleged copyright infringement associated with Sites. Company will, upon receiving proper notice as set forth below, use commercially reasonable efforts to remove or disable access to any such material as set forth in the DMCA. If you believe that your copyrighted work or the copyrighted work of a third party is being infringed, please notify Company’s copyright agent at firstname.lastname@example.org.
When notifying Company of the alleged copyright infringement, please include all of the following information:
If material is believed in good faith by Company to infringe a copyright or otherwise violate any intellectual property rights, Company will remove or disable access to any such material. If you believe that a notice of copyright infringement has been wrongly filed against you and you would like to submit a counter-notification, you may file a Counter Notification in Response to Claim of Copyright Infringement with Company’s copyright agent. You may want to seek independent legal counsel before filing a notification or counter-notification.
When you register an account on Sites, you shall complete the registration process by providing the complete and accurate information requested on the registration form.
You shall be entirely responsible for maintaining the confidentiality of your account password.
You shall not use the account, username, or password of someone else at any time.
You agree to notify Company immediately on any unauthorized use of your account, user name, or password.
Company shall not be liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge.
You may be held liable for any losses incurred by Company, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of your account or password.
The restrictions and obligations contained in Sections 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 30, 31, 32, 33, 34, 35, 36, 37, 41, 42, 43, 44, 45, 54, 55, 56, 57, 58, and 59 of this Agreement shall survive the expiration, termination, or cancellation of this Agreement, and shall continue to bind the Parties and the Parties’ successors, heirs, and assigns.
Any notice or other communication provided for herein or given hereunder to a Party hereto shall be given via email. You shall email Company at email@example.com.
You shall not assign or otherwise transfer any rights or obligations under this Agreement without Company’s prior written consent.
This Agreement contains the entire agreement of the Parties. This Agreement supersedes any and all other understanding and agreements, either oral or in writing, between the Parties. No agreement, statement, or promise not contained in this Agreement shall be valid or binding between the Parties.
Please review this Agreement periodically, because Company may modify this Agreement at any time in its sole discretion. If Company modifies this Agreement, Company will post the revised version here with an updated revision date. If Company makes material changes to this Agreement, Company may notify you either by posting a notice on Sites or by sending you a notification directly.
If any provision of this Agreement is held in whole or in part to be unenforceable or invalid for any reason, the remainder of that provision and of the entire Agreement will be severable and remain in effect, unless such interpretation materially alters this Agreement.
Headings in this Agreement are for convenience and reference only. The words in the headings in no way explain, modify, amplify, or interpret this Agreement.
This Agreement shall be construed without regard to any presumption or rule requiring construction (1) against the Party causing all or any part of such instrument to be drafted or (2) in favor of the Party receiving a particular benefit under the Agreement. No rule of strict construction will be applied against any Party hereto.
Unless the context clearly requires otherwise:
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile, e-mail, or other electronic medium shall have the same force and effect as an original signature.
Except as stated in Section 21 of this Agreement, either Party’s failure to insist, in any one or more instances, on strict performance by the other Party of any of the terms of this Agreement shall not be construed as a waiver of any continuing or subsequent failure to perform or delay in performance of any term hereof.
Company shall not be deemed in breach of this Agreement if Company is unable to perform by reason of forces of nature, labor disputes, supplies or material shortage, fire, earthquake, act of God or public enemy, utility or communication failures, accidents, strikes, dissolution of Company’s manufacturer, manufacturing problems, transportation problems, acts of any local, state, federal, national or international law, governmental order or regulation, any act or cause that does not normally occur in the ordinary course of Company’s business, or any other event beyond Company’s control (collectively, “Force Majeure Event”).
This Agreement shall be deemed to have been entered into in California, and all questions of the validity, interpretation, or performance of any of its terms or of any rights or obligations of the Parties to this Agreement shall be governed by California law without regard to conflict of laws principles. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
Any legal action, court proceeding, or arbitration, to construe or enforce this Agreement or otherwise to resolve any dispute between the Parties based on this Agreement, shall be commenced and maintained in an appropriate court or other forum in Santa Clara County, California.
In the event that you breach this Agreement, you agree that, at the request of Company, you will submit to the personal jurisdiction of any entity allowed by this Agreement.
Sites are controlled and operated by Company from its offices in the State of California. Company makes no representation that any of the materials or the services to which you have been given access are available or appropriate for use in other locations. Your use of or access to Sites should not be construed as Company’s purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction other than California.
YOU ACKNOWLEDGE THAT:
This Agreement was last updated on 01-01-2013.