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General Terms and Conditions of Windhaven Bay Inc.
Your contractual partner for all orders generated at this online offer is the Windhaven Bay Inc., 323 Windhaven Bay, Mount Juliet, Tennessee 37122 USA, hereinafter called "Windhaven Bay Inc.".
All deliveries and downloadable content of the Windhaven Bay Inc. to the customer are based on the following general terms and conditions. These underlie all offers and agreements between the Windhaven Bay Inc. and the customer and are considered as accepted for the duration of the entire business relationship. Conflicting or deviating conditions of the buyer are only binding if the Windhaven Bay Inc. has accepted them in writing.
2. Responsibility for Online Offer
Windhaven Bay Inc. is responsible for the articles and images offered on this website as well as the overall design of the shop.
3. Conclusion of the Contract
(1) The offers contained on this website represent a non-binding invitation for the customer to place an order with Windhaven Bay Inc..
(2) By filling in and sending off the order form on the Internet, the Customer makes a binding offer for the conclusion of a contract of purchase and/or a contract for work and materials. Before finally sending off the order form, the customer has the opportunity to check that his/her details are right and if necessary to correct them on a summary page. The following languages are currently available for the ordering process: English.
(3) The conclusion of the contract shall depend on punctual and correct supply of the goods to Windhaven Bay Inc.. This proviso shall not apply in the event of short-term disruption to deliveries or if Windhaven Bay Inc. can be held responsible for non-delivery, in particular if Windhaven Bay Inc. fails to make a congruent hedging transaction in good time. The Customer will be informed immediately that the service is not available. If Customer has already paid for the goods, this money will be reimbursed.
4. Delivery / Shipping / Download of Software
In principle, delivery is made within three weeks from the date when the Customer receives confirmation of his/her order. Delivery dates and times are only binding if they are expressly confirmed as such by Windhaven Bay Inc. in writing.
Delivery shall be conducted by a shipment service provider chosen by Windhaven Bay Inc.. The customer has to pay standard delivery costs which may depend on order value, and where it is shipped to.
Downloadable software products can be downloaded immediately after the successful payment. A download link with which the bought software can be downloaded will be provided.
(1) For customers ordering from the USA, the prices as given are the gross prices and exclude the statutory incidental taxes, in particular Value Added Tax. Postage and packing is charged for separately and shown separately in the invoice. The delivery address is definitive.
(2) For customers from outside the USA all stated prices are net prices. The delivery address is decisive. If, according to the statutory regulations, the goods are subject to sales taxes in the recipient country, then these shall be paid additionally upon receipt of the goods. Furthermore, the goods may be subject to import duties which the customer shall pay additionally upon receipt of the goods.
(3) The customer has to pay delivery and handling, which may depend on order value and the delivery location.
(4) Purchase price, along with delivery and handling charges are immediately payable, without deduction.
(1) The method of payment is by credit card, or other methods. Windhaven Bay Inc. reserves the right of restricting the number of payment methods that a customer can choose because of delivery country or order value.
(2) In case of the method of payment chosen by the customer is not being practicable, where Windhaven Bay Inc. has met its contractual obligations, in particular if it is the case that a direct debit from the customer's account is not possible due to a lack of funds or provision of wrong information, then the customer shall reimburse any additional costs incurred by Windhaven Bay Inc. or a third party which carried out the transaction.
(3) Windhaven Bay Inc. is entitled to make use of the services of trustworthy third parties for the handling of the payment:
a) If it comes to a default of payment of the customer, Windhaven Bay Inc. is allowed to assign its claims to a debt collection agency and transfer the personal data required for the handling of payments to these third parties.
b) In the case of intervention of third parties in the handling of payments, then payment in relation to Windhaven Bay Inc. only counts as made if the amount has been provided contractually to the third party, so that the third party can dispose of it as it sees fit.
(4) The customer agrees to electronic invoicing only.
7. Reservation of Ownership
(1) Up to the payment of any monies owed to Windhaven Bay Inc. the goods remain the property of Windhaven Bay Inc.
(2) The customer is obliged to handle the product with care up to the transfer of ownership.
(1) Information, drawings, figures, technical data, specifications of weight, measurements and services, which are contained in brochures, catalogues, newsletters, ads or price lists only are of an informational nature. No responsibility is accepted by Windhaven Bay Inc. for the correctness of this information. Regarding type and scope of delivery only the information shall be decisive which is contained in the order confirmation.
(2) As far as there is a defect in the goods which falls under warranty, the customer shall be entitled in the context of statutory regulations to demand supplementary performance, withdraw from the contract or a reduction in purchase price.
(3) Data communication via the internet, considering the current state of the technology, cannot be guaranteed as being flawless and/or available at any time. Thus, Windhaven Bay Inc. shall not be liable for the continuous and uninterrupted availability of the online offer.
(4) The term of limitation for claims under warranty for the goods provided is one year starting from the receipt of such goods. If the customer is in business then the term of limitation is one year.
9. Limitation of Liability
(1) Apart from that, liability on the part of Windhaven Bay Inc. follows statutory provisions, insofar as nothing else is determined in these general terms and conditions. Windhaven Bay Inc. only bears unlimited responsibility for damages, no matter what the legal ground, in the case of deliberate action and gross negligence. In addition, Windhaven Bay Inc. also bears unlimited responsibility for damages in cases of mild negligence resulting in loss of life, bodily harm or damage to health. In the case of mild negligence and breach of an essential contractual obligation (cardinal obligation) Windhaven Bay Inc. liability is limited to the payment of the foreseeable, typically occurring damage.
(2) As far as liability of Windhaven Bay Inc. is excluded or limited in these general terms and conditions then the same applies for personal liability for damages on the part of employees, representatives and agents of Windhaven Bay Inc..
10. Information about the right of withdrawal for Consumers
You have the right to withdraw from this contract within 14 days without giving any reason. The withdrawal period will expire after 14 days from the day on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the last good.
To exercise the right of withdrawal, you must inform us (Windhaven Bay Inc.,323 Windhaven Bay, Mount Juliet, Tennessee 37122 USA, email@example.com) of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post, or e-mail). You may use the attached model withdrawal form, but it is not obligatory. To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
Effects of withdrawal
If you withdraw from this contract, we will carry out the reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
We may withhold reimbursement until we have received the goods back or you have supplied evidence of having sent back the goods, whichever is the earliest. You shall send back the goods or hand them over to us, without undue delay and in any event not later than 14 days from the day on which you communicate your withdrawal from this contract to us. The deadline is met if you send back the goods before the period of 14 days has expired. You will have to bear the direct cost of returning the goods. You are only liable for any diminished value of the goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the goods.
Model withdrawal form
(complete and return this form only if you wish to withdraw from the contract)
To Windhaven Bay Inc., 323 Windhaven Bay, Mount Juliet, Tennessee 37122 USA, firstname.lastname@example.org:
I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods (*)/for the provision of the following service (*),
Ordered on (*)/received on (*),
Name of consumer(s),
Address of consumer(s),
Signature of consumer(s) (only if this form is notified on paper),
(*) Delete as appropriate.
Revocation of this contract is not possible with regard to the delivery of goods that have not been pre-fabricated, and which have been either selected individually or that have been explicitly personalised by the customer to meet his personal preferences.
11. Technical and Design Deviations
When fulfilling the contract, we expressly reserve the right to deviate from the descriptions and information in our brochures, catalogues and other written and electronic documents with respect to material, color, weight, measurements, design or other features, as far as these can be considered reasonable for the customer. Reasonable cause for change may result from fluctuations customary in trade and technical production processes.
12. Dispute Resolution
(a) The formation, construction, and performance of this agreement (and all other agreements incorporating this agreement by reference) must be construed in accordance with the laws of the United States and California without regard to their choice of law rules. The parties agree that any dispute arising out of or relating to this agreement must be submitted to confidential binding arbitration in Los Angeles, California, except that Windhaven Bay Inc. may seek injunctive or other appropriate relief in any state or federal court in Tennessee if you have violated or threatened to violate the intellectual property rights of Windhaven Bay Inc. or a third party, or any term of any agreement you have with Windhaven Bay Inc. The parties agree that
"the arbitration will be provided by an alternative dispute resolution provider mutually agreed upon by the parties, and if the parties cannot agree, then through the American Arbitration Association;”
claims must be conducted on an individual basis, and not in a class, consolidated, or representative action; and
any judgment on the award rendered by the arbitrator is final, binding, and may be entered in any court of competent jurisdiction.
(b) If any action or claim is filed in contravention of the arbitration rules provided in paragraph 12(a), the parties agree to personal jurisdiction and venue in the state and federal courts of Tennessee, and both waive the right to a jury trial. All claims filed or brought contrary to paragraph 12(a) are improperly filed, and the non-filing party is entitled to recover all attorneys fees and costs relating to dismissal of the improperly filed claim incurred after the non-filing party has given notice in writing of the improperly filed claim.
Version November 2020