TERMS OF SALES
1. SCOPE & APPLICATION:
THESE TERMS OF SALE (THESE “TERMS”) APPLY TO ALL PRE-ORDERS, OFFERS, SALES AND PURCHASES OF BINARYVR DEVELOPMENT KITS (THE “PRODUCT”) SOLD THROUGH THE BINARYVR WEBSITES. WE RESERVE THE RIGHT TO AMEND OR UPDATE THESE TERMS AT ANY TIME BY POSTING SUCH AMENDED OR UPDATED TERMS ON THE BINARYVR WEBSITE; YOUR CONTINUED USE OF THE BIANRYVR WEBSITE OR PURCHASE OF PRODUCTS AFTER THE POSTED CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF AND AGREEMENT TO SUCH CHANGES.
YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE IF YOU (A) DO NOT AGREE TO THESE TERMS, OR (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH BIANRYVR.
2. PURCHASES ARE FINAL:
ONCE CONFIRMED, ALL PURCHASES ARE FINAL, NON-CANCELABLE AND NON-REFUNDABLE, EXCEPT AS SPECIFIED IN THE APPLICABLE CANCELLATION POLICY AND EXCHANGE POLICY SET FORTH BELOW.
3. OFFER, ACKNOWLEDGMENT AND ACCEPTANCE; CANCELLATION POLICY:
3.1 Any prices, quotations and descriptions made or referred to on the BinaryVR Websites with respect to the Product are subject to availability, may be withdrawn or revised at any time at BinaryVR’s sole discretion prior to our express acceptance of your pre-order or order (as described below), and therefore do not constitute a bona fide offer of sale.
3.2 While we make every effort to ensure that items appearing on the BinaryVR Websites are available, we cannot guarantee that all items are in stock, immediately available, or available for distribution or delivery in all parts of the Territory (as defined below) when you submit your pre-order or order. We may reject your pre-order or 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 item if any such payment has been made.
3.3 A pre-order or order submitted by you constitutes an offer by you to BinaryVR to purchase the Product on these Terms and is subject to our subsequent acceptance.
3.4 Our acceptance of your pre-order or order takes effect and a contract of sale is concluded at the point where such offer is expressly accepted by us, evidenced by BinaryVR dispatching your order and accepting your credit card or other payment (“Acceptance“).
3.5 Your placement of a pre-order does not create a contract for sale for a Product not offered for sale by BinaryVR. By placing a pre-order for a Product that is not yet available for sale, you make an offer to BinaryVR to purchase the Product subject to these Terms. Subject to Section 3.6, you may cancel your offer to purchase the Product at any time prior to shipment.
3.7 Cancellation Policy. (a) We may cancel your order at any time after Acceptance and prior to shipment for any reason in our sole discretion, including but not limited to (i) our inability to process or fulfill the order; (ii) you are in a country where the Product cannot be purchased or shipped; and (iii) your order does not comply with any applicable Terms, and in such event, we will issue you a credit or refund for any amounts already paid; and (b) for any pre-orders of the Product (as specifically identified on the BinaryVR Websites), you are permitted to cancel your pre-order up until such time as the Product has been shipped by emailing with your cancellation request. The foregoing collectively constitutes our “Cancellation Policy”.
4. PRICE AND TERMS OF PAYMENT:
4.1 Prices payable for the Product may be indicated on the BinaryVR Websites or, an acknowledgement, but the authoritative price – in the event of any discrepancy – is the price that is notified to you on our Acceptance. We are not responsible for pricing, typographical or other errors in any offer by us, and we reserve the right to cancel any orders arising from such errors.
4.2 We 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, carriage, labor or the increase or imposition of any tax, duty or other levy and any variation in exchange rates. We also reserve the right to notify you of any mistakes in the Product descriptions or errors in pricing prior to Product dispatch. In such event, if you choose to continue with fulfillment of the order, you acknowledge that the Product will be provided in accordance with such revised description or corrected price.
4.3 Unless otherwise specified, prices quoted are exclusive of: (a) the costs of shipping or carriage to the agreed place of delivery within the Territory (charges for which are stated on the BinaryVR Websites); and (b) VAT and any other tax or duty which (where applicable) must be added to the price payable. You agree to pay for taxes, shipping or carriage of the Product as such costs are specified by us on the BinaryVR Websites when you submit your order.
4.4 Payment will be made prior to delivery and by such methods as are indicated on the BinaryVR Websites (and not by any other means unless we have given our prior agreement). Credit card payments are handled through our third party payment processor. Our third party payment processor will collect and may retain your credit card information in order to process your payment, including payment for your purchases of Product, and all payments are subject to the third party payment processor’s applicable policies.
5. DELIVERY AND RISK:
5.1 Delivery will be to a valid address within the Territory submitted by you (“Delivery Address”), and subject to Acceptance. You must check 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.
5.2 Except to the extent required as a result of any mandatory rights you have as a consumer under applicable law, you will not be entitled to reject the Product in whole or in part by reason of short delivery and will 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 will pay for the quantity actually delivered. Such notifications can be sent to firstname.lastname@example.org.
5.3 Except as otherwise provided in these Terms, risk of loss of or damage to the Product passes to you upon delivery, or when the Product is placed in your possession or that of any carrier or transport provided by you, whichever occurs first.
6. REJECTION, DAMAGE OR LOSS IN TRANSIT; EXCHANGE POLICY:
6.1 Except as set out as part of the “Exchange Policy” set forth below, and subject to any rights you have under applicable law that cannot be excluded or limited by these Terms:
6.1.1 We will not be liable and you will not be entitled to reject the Product, except for: (a) damage to or loss of Product or any part thereof in transit (where the Product are carried by our own transport or by a carrier on our behalf) where notified to us within 5 business days of receipt of the Product (the foregoing constitutes our “Exchange Policy“) in accordance with the Exchange Policy procedures set forth in Section 6.2 below;
6.1.2 We will not be liable for any damage or losses arising from: (a) defective installation or use of the Product; (b) the use of the Product in connection with other defective, unsuitable or defectively installed equipment; or (c) your negligence, improper use or use in any manner inconsistent with our or any other manufacturer’s specifications or instructions.
6.1.3 Where these is a shortage or failure to deliver, or any damage to the Product, we may, in our sole discretion, and at our option: (a) in the case of Product shortage or non-delivery, make good on any such shortage or non-delivery; and/or (b) in the case of damage to the Product and in accordance with the Exchange Policy, replace, exchange or repair the Product upon you returning the Product in accordance with the Exchange Policy procedures set forth below.
6.2 Exchange Policy Procedures. If the event of damage to the Product meeting the terms and conditions of the Exchange Policy, you should email within 5 business days of receipt of the Product, and you will arrange for delivery and return of the damaged Product (which must include all original packaging, hardware, accessories materials, and documentation) at your sole expense. You bear the risk of loss during shipment. Upon receipt by us of the returned Product (including all original packaging, hardware, accessories materials, and documentation), and verification of the damage, we will ship out to you a replacement Product, or repaired Product, in BinaryVR’s sole discretion, as soon as reasonably possible.
6.3 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 modified or altered by persons other than us or any authorized dealer; (b) the Product has not been returned together with full details in writing of the alleged damage in accordance with the Exchange Policy; and/or (c) 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.
Purchase of the Product does not entitle you to ownership or a license to any software generated by BinaryVR for use with the Product (the "Software"). To the extent that BinaryVR, in its sole discretion, grants you access to any such 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 BinaryVR Websites (the “License Terms“).
Specifically, BinaryVR shall have sole discretion to determine and change the availability, nature, features, content, versioning of any Software that it makes available to you, for download through the website or otherwise (including the BinaryVR software developer kit ("SDK")). Purchase of a Product does not entitle you to access to any specific features, content or version of the SDK, including and especially versions of the SDK that have not yet been made available to the public. BinaryVR will have no obligation to provide any updates or upgrades to any Software it makes available to you, but in the event that it does, such updates, upgrades and any documentation will be subject to the License Terms available at the SDK download page (the "EULA").
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 EULA, for further information regarding the license and use of the Software.
8. LIABILITY LIMITATION:
TO THE MAXIMUM EXTENT LEGALLY PERMITTED, WHETHER OR NOT WE WERE AWARE OR ADVISED OF THE POSSIBILITY OF DAMAGES, AND WHETHER OR NOT THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE: (A) OUR AGGREGATE LIABILITY (WHETHER FOR BREACH OF CONTRACT, TORT OR UNDER ANY OTHER LEGAL THEORY) WILL IN NO CIRCUMSTANCES EXCEED THE COST OF THE PRODUCT YOU ORDERED WHICH IS RELATED TO OR GIVES RISE TO YOUR CLAIMS; AND (B) IN NO EVENT WILL WE BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST REVENUE, OR COST OF COVER.
SOME STATES DO NO ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
9. PRODUCT SPECIFICATIONS; DISCLAIMER OF WARRANTIES
9.1 All Product specifications, illustrations, drawings, images, particulars, dimensions, performance data and other information on the BinaryVR Websites 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. The Product that is shipped to you may vary from these images or specifications.
9.2 THE PRODUCT IS PROVIDED WITHOUT ANY WARRANTIES OR SUPPORT OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND NO OTHER REPRESENTATIONS OR CLAIMS OF ANY KIND WILL BE BINDING ON OR OBLIGATE US. THE PRODUCT IS EXPRESSLY PROVIDED TO YOU “AS IS.” WE DO NOT AND WILL NOT PROVIDE ANY TECHNICAL OR CUSTOMER SUPPORT FOR THE PRODUCT WHATSOEVER. IF ANY TECHNICAL SUPPORT OR ASSISTANCE IS PROVIDED WITH RESPECT TO THE PRODUCT AND THE USE THEREOF, IT IS PROVIDED “AS IS”, WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED. WE DO NOT WARRANT THAT THE USE OR OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE. YOU BEAR ALL RISKS RELATING TO THE USE OF THE PRODUCT AND THE QUALITY AND PERFORMANCE OF THE PRODUCT AND ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION EXCEPT AS EXPRESSLY SET FORTH AS PART OF THE EXCHANGE POLICY. THESE TERMS STATE YOUR SOLE AND EXCLUSIVE REMEDIES.
SOME JURISDICTIONS DO NOT ALLOW FOR THE DISCLAIMER OR LIMITATION OF WARRANTIES, SO THE ABOVE DISCLAIMER OR LIMITATION MAY NOT APPLY TO YOU.
10. CUSTOMS DUTIES & EXPORT
10.1 Product licensed or sold to you under these Terms may be subject to export control laws and regulations in the Territory or other relevant jurisdiction where you take delivery or use the Product. You may not use or otherwise export or re-export the Product except as authorized by United States law and the laws of the jurisdiction in which the Product was obtained.
10.2 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, 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.
11.1 We will 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 the performance by reason of any circumstances beyond our reasonable control including (but not limited to) any act of God, war, riot, civil commotion, government action, explosion, fire, flood, storm, accident, strike, lock-out, trade dispute or labor disturbance, breakdown of plant or machinery, interruption in the supply of power or materials and in such event we may elect to cancel your order and refund any payments made.
11.2 You acknowledge that these Terms supersede and cancel all previous contracts, agreements and working arrangements whether oral or written, express or implied, between us with respect to the purchase of Products. 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.
11.3 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.
11.4 No waiver of any term or condition of these Terms will be effective unless made in writing and signed by us. The waiver of any breach of any Term will not be construed as a waiver of any subsequent breach or condition.
11.5 The construction validity and performance of these Terms will be governed by the laws of the State of California, without giving effect to any principles of conflicts of law. The parties submit to the exclusive jurisdiction and venue of any state and federal courts located in San Mateo County, California for any claims or proceedings arising out of or related to these Terms or the purchase of Products, and waive any jurisdictional, venue or inconvenient form objections to such courts.
Last modified on December 30, 2016.