TERMS & CONDITIONS
1 GENERAL INFORMATION
The website https://www.davidgotlib.com/ is provided by:
David Gotlib LLC. (hereafter ‘DG’ or ‘we’)
1345 Avenue of the Americas 2nd floor
Company number: 81-3296534
If you have any questions or comments to make, you can contact us via
Email: [email protected]
Tel.: +1 2128786080
1.1 These Terms and Conditions (“Terms and Conditions”) apply to the Purchasers of any and all Products (“Products”) manufactured and sold by David Gotlib LLC. (“DG”) and to any and all users of this website. The Purchaser of the Products (“Purchaser”) and user of the website agree to be bound by these Terms and Conditions.
1.2 These Terms and Conditions shall be always and exclusively applicable, except in the case of an explicit derogation. An explicit derogation is only valid insofar as it is the result of a mutual agreement that is recorded in writing. Explicit derogations are only valid to replace or supplement the clauses to which they relate. This does not affect the applicability of the other provisions of these Terms and Conditions.
1.3 DG reserves the right to amend and/or supplement the Terms and Conditions in the future. A future change will obviously have no effect on existing Product orders and the resulting agreements. Any amendment or supplement shall enter into force on the first day of the month following the month in which notification of that amendment or supplement was given. The Purchaser is considered to agree with the amendment or supplement of the Terms & Conditions, except in case of withdrawal conform the section “Return policy’ below.
2 OFFER AND ACCEPTANCE
2.1 Our online offer is presented with utmost care. DG provides information about the features of the Products, including technical and photographs illustrating the Products. We provide this information to the extent technical resources permit us. The images displayed on our website provide an approximate representation of the substantial features of our Products. Our online offer is presented as an invitation to purchase. DG is not bound by its offer. An offer is only valid while stocks last.
2.2 The Purchaser must be 18 years of age to place an order. If not, the order needs to be placed by a parent or a legal guardian. Orders placed by someone under the age of 18 will be refused. To purchase a Product from the DG range, the Purchaser must complete our online ordering method. This purchase is binding on the Purchaser. DG will send a confirmation of the order within two (2) calendar days, directed at the e-mail address specified by the Purchaser at the moment of ordering. The purchase shall be concluded as soon as the Purchaser has received the order confirmation email issued by DG.
2.3 DG retains the possibility to refuse the sending of an order confirmation email or to unilaterally reject an order placement by means of an explicit statement. DG will inform the Purchaser if the initial order cannot be executed. There is no purchase contract if DG refuses the order. In such case, all payments that have been made will be soon refunded. The Purchaser is not entitled to any form of compensation.
2.4 DG has the option to impose specific conditions on a particular offer, such as a limited period of validity. Such specific terms and conditions only apply if they are explicitly communicated prior to the order.
3.1 All prices are indicated in dollars and include sales taxes and other taxes. The individual Product price does not include the costs of delivery and other additional costs. Obvious errors in pricing, such as obvious inaccuracies, can still be corrected by DG after the purchase.
3.2 The Purchaser must communicate any complaints regarding the pricing or the payment within seven (7) calendar days after the confirmation of order, in writing. The filing of a complaint does not suspend due payments.
3.3 We have the right to change our prices at any time but commit to always apply the prices that were indicated on our website at the time of your order, unless there were inaccuracies in the pricing of the Products. In such case, the rules above apply and the price to be paid shall be the price in the confirmation of order. Price changes that are due to changes in VAT rates will be borne by the Purchaser.
3.4 The use of certain selected payment methods can entail additional costs, which are exclusively borne by the Purchaser.
4.1 Each payment is handled promptly and completely, i.e. when the Purchaser places his order. We accept the payment methods as indicated on our website. Possible payment methods are, but not limited to:
4.2 In the future, we can always expand the payment methods. These expansions will always be announced on our website.
4.3 DG has taken all reasonable measures to ensure safe payments. Our main concerns are a loss or theft of your identity or financial information. The use of the above mentioned authorized payment partners and credit card issuers provide the necessary guarantees.
4.4 We make use of the secured payment system of Bank of America for the further processing of the payment. This closed security system processes your bank details always in an encrypted manner. Security measures are provided. These payments are subject to the general terms and conditions of Bank of America which are solely responsible for the correct execution of the online payments.
4.5 DG shall only deliver the order as soon as it has received the full payment of all amounts owed by the Purchaser. DG always retain ownership of all Products ordered until full payment of all amounts due under this agreement has been made, regardless whether the delivery has already occurred.
5.1 We process every order with the care it deserves. The order shall be processed within one (1) week upon order confirmation. DG has the right to stipulate wider delivery terms, which shall be communicated within a reasonable timespan after the order confirmation. The Purchaser may only terminate the agreement if DG fails to deliver the Products within the communicated delivery deadline. In the event of such termination, OMG will reimburse all sums paid without undue delay and no later than fourteen (14) calendar days after termination of the agreement.
5.2 DG uses external parties and carriers for the execution of the delivery. This may have an effect on the delivery. DG takes however no responsibility for delivery arriving late or for an order which is lost by third parties or by unforeseen circumstances or force majeure. If an order that has been sent remains undelivered, DG will conduct an investigation at the carrier’s end. This can take several days. During this period, DG cannot provide any reimbursement or proceed to a re-delivery of the Products.
5.3 The Purchaser is responsible to make the delivery possible at the indicated address, either by being present himself or by designating a third-party present at the indicated address at the moment of the delivery. If Purchaser or a designated third-party is not available to take delivery or collection, carrier may leave a card giving you instructions on either re-delivery or collection from the carrier. The package might also be delivered to a neighbour or a safe place.
5.4 If delivery or collection is delayed through Purchaser’s or designated third-party unreasonable refusal to accept delivery or if Purchaser does not (within two weeks of our first attempt to deliver the Product to you) accept delivery or collect the Product from the carrier, then DG may (without affecting any other right or remedy available) do either or both of the following:
- Charge Purchaser for reasonable storage fee and other costs reasonably incurred by DG; or
- No longer make the Product available for delivery or collection and notify Purchaser that DG is immediately cancelling the applicable contract, in which case DG will refund to Purchaser or to Purchaser’s credit or debit card company as applicable any money already paid to DG under the applicable contract, less DG’s reasonable administration charges, including for attempting to deliver and then returning the Product, and any storage fees as provided for in clause 5.3 and 5.4 above.
5.5 DG bears the risk for damage and/or loss of the Products until the moment of delivery. Risk associated with the goods shall pass from DG to the Purchaser on delivery. Each delivery requires a signature of the delivery confirmation, but a lack of signature does not affect the transfer of risk.
6 DEFECTS AND COMPLAINTS
6.1 Each Purchaser is consequently entitled to repair or replacement if he finds a defect in the delivered Products, to the extent that the requirements of the legal warranty are satisfied. The Consumer enjoys furthermore a warranty period of one (1) year. The warranty is not applicable if the Purchaser was aware of the defects at the time of the sale.
6.2 The warranty is not applicable when the damage is caused by normal wear and tear; accidental or intentional changes caused by the Purchaser to the Product, including improper and incorrect use; exposure to moisture, fire, earthquake or other external causes.
6.3 The Purchaser or the third party designated by the Purchaser are required to examine the Products accurately on their conformity as soon as the Products are received. If the Product is affected by a visible defect, and the receiver perceives this defect, he must submit a complaint. Purchaser shall communicate these complaints towards DG in a written statement and in an explicit, unambiguous and motivated manner. This must be done within seven (7) days upon delivery. It is the duty of the Purchaser to motivate this communication sufficiently. We recommend a statement that uses all reasonable technical resources, such as photos and videos.
6.4 The Purchaser must send the defective Products back to DG in their original condition, including packaging, accessories and documentation, and always accompanied by the original invoice or a valid proof of payment. Any deficiency in this obligation will imply a proportional reduction in the repayment. All costs for return shipment shall be borne by the Purchaser. Sending back an order is always at risk of the Purchaser. We recommend a registered and insured return shipment to avoid the risks of loss and theft. This return shipment must be done within seven (7) calendar days after the communication.
6.5 The Purchaser shall not be entitled to send back the Products in the absence of a substantiated complaint. If the conditions of warranty are met, the Purchaser is firstly entitled to a free repair or replacement of the ordered Products, if the situation renders it possible. DG is only held to a reimbursement if the reparation or replacement no longer produces the same benefit for the Purchaser. The Purchaser will have to communicate this ground in a clear and motivated manner. Any compensation and reimbursement can never exceed the amount invoiced to the Purchaser.
6.6 If the Products have been sent back although the conditions were not met, DG will send the Products to the Purchaser back again. The cost of this shipment will be borne by the Purchaser. DG may stock the returned Products at third parties, for account and at the risk of the Purchaser, as long as the costs of return have not been paid.
7 RETURN POLICY
7.1 If the Purchaser would like to return the Product without specific reason, the Purchaser shall contact DG at [email protected] within 30 days of delivery. Purchaser shall communicate and sufficiently document that the Product is undamaged and as new. After DG accepts the return for inspection, Purchaser shall send the undamaged Product in its original condition, including original packaging, proof of payment, accessories, etc. back to DG within seven (7) days of DG accepting the return for inspection. We recommend a registered and insured return shipment to avoid the risks of loss and theft. If DG accepts the returned Product, DG will refund the full amount paid by Purchaser within 30 days of accepting the return. In any case, the Purchaser will bear all costs and risks returning the Product. DG holds the right at any time to reject the return and not refund the Purchaser, this includes, but is not limited to, the situation where there is a presumption the Product was worn by the Purchaser. In case DG decides the Product is damaged or is not eligible for return by any reason, all shipping costs plus a 250$ handling will be paid by the Purchaser before DG returns the Product.
7.2 Purchaser is not entitled to return purchased Products when the Products were made to the Purchaser’s specifications, or are clearly personalised.
8 FORCE MAJEURE
8.1 We are not responsible for compliance with our obligations under these Terms and Conditions in the event of force majeure. Force majeure is understood to be a situation in which the performance of our obligations, in whole or in part, whether or not temporarily, is prevented by circumstances beyond our control.
8.2 In the event of force majeure, these obligations will be suspended and we will make all reasonable efforts to limit the consequences of the force majeure situation. In the event of force majeure exceeding two (2) months, either Party shall be entitled to terminate the Contract by giving written notice to the other Party, without the Parties owing each other any compensation (except for the refund of the Product paid by you and not delivered).
9 INTELLECTUAL PROPERTY
9.1 DG retains all intellectual property rights and all related rights with regard to the website and webshop. These intellectual property rights include copyrights, trademarks, design rights and/or other (intellectual property) rights, including technical and/or commercial know-how, methods and concepts, whether or not patentable.
9.2 The Purchaser is not allowed to make use of any of our intellectual property rights and/or to make changes in the presentation of these rights as described in this article, unless this is necessary for private use of the Product or we have given the Purchaser our explicit permission.
10 YOUR PRIVACY, OUR CONCERN
11 OWN RISK
11.1 Purchaser agrees to use the Products at his/her own risk. Purchaser shall be responsible for ensuring that all users of the Products purchased by Purchaser comply with these Terms and Conditions.
12.1 DG assumes no liability for damage or injury associated with the use of the Products. DG does not guarantee error-free Products. Purchaser is solely responsible for any and all adjustments made to the Products in order to suit personal preferences. Purchaser assumes all liability for damages to property or persons caused by use of Products. Purchaser assumes all liability for improper use of the Products. Purchaser will, and hereby does, assume all risk and Purchaser determines the suitability of the Product for his or her intended use. Anyone injured or any property damaged by use of the Product purchased by Purchaser is the sole responsibility of the Purchaser.
12.2 In no event shall DG be liable for special, indirect, incidental or consequential damages related to the use of Products sold, whether or not such damages are foreseeable. In no event shall DG, its affiliates, agents, directors, employees, suppliers or licensors be liable to Purchaser for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount Purchaser paid to DG. This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability or any other basis for liability, even if DG has been advised of the possibility of such damage. The foregoing limitation of foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to Purchaser. This agreement gives Purchaser specific legal rights, and Purchaser may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under this agreement will not apply to the extent prohibited by applicable law.
12.3 Purchaser hereby defends, indemnifies and holds harmless DG and its agents, representatives and employees from any and all claims, liabilities, damages, and expenses (including attorney’s fees actually incurred) on account of death or injury to any person or damage to any property arising from or in connection with any Products purchased by Purchaser, except to the extent arising from the gross negligence or willful misconduct of DG. This indemnity shall apply without regard to whether the claim, damage, liability or expense is based on breach of contract, breach of warranty, negligence, strict liability, some other tort, or any other theory of liability.
12.4 Nothing in these Terms and Conditions is intended to exclude or limit your statutory rights. Furthermore, nothing in these Terms and Conditions is intended to limit or exclude our liability for death or personal injury caused by our negligence (including that of our employees); or for fraud or fraudulent misrepresentation.
13.1 If any provision of these Terms and Conditions (or part thereof) is declared void, invalid or unenforceable, such invalidity, nullity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions of these Terms and Conditions. In case of nullity, invalidity or unenforceability, the parties shall, to the extent possible, negotiate to replace the null, void or unenforceable provision (or part thereof) by an equivalent provision that complies with the spirit of these Terms and Conditions.
13.2 The fact that we fail to require the strict application of any of the provisions of these Terms and Conditions cannot be considered as a tacit waiver of our rights and does not prevent us from demanding strict compliance with these provisions at a later date.
13.3 The Terms and Conditions shall always and exclusively apply to all present and future contracts between you and us, except in the case of an express derogation. An express deviation is only valid to the extent that it is the result of mutual agreement between you and us which is explicitly recorded in writing. Express deviations are only valid to replace or supplement the clauses to which they relate. The other provisions of these Terms and Conditions remain fully applicable.
14 APPLICABLE LAW
13.1 Purchaser agrees that, except to the extent inconsistent with or pre-empted by federal law, the laws and courts of the State of New York, without regard to principles of conflict of laws, will govern the Terms and Conditions and any claim or dispute that has arisen or may arise between Purchaser and DG, except as otherwise stated in the Terms and Conditions.
13.2 Purchaser and DG agree that any and all disputes or claims that have arisen, or may arise, between Purchaser and DG, relating in any way to or arising out of this or previous versions of the Terms and Conditions, shall be resolved exclusively through final and binding arbitration, rather than in court. Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org
13.3 If a court or arbitration court determines, for example, that a particular section of this agreement is invalid and void under the law, the rest of this agreement is still applicable and binding upon both parties.