(a) What this Warranty Covers.
We warrant that during the shelf life of the products, the products purchased from this Site will conform to the specifications pursuant to products’ technical bulletins.
If you fail to notify us of any non-conformance within thirty (30) calendar days of your Order, you shall be deemed to have accepted all such products subject to this warranty obligation. NEITHER ANY PERFORMANCE OR OTHER CONDUCT, NOR ANY ORAL OR WRITTEN INFORMATION, STATEMENT OR ADVICE PROVIDED BY US OR ANY OF OUR DISTRIBUTORS, AGENTS, OR EMPLOYEES WILL CREATE A WARRANTY, OR IN ANY WAY INCREASE THE SCOPE OR DURATION OF THIS LIMITED WARRANTY.
THE COMPLEAT SCULPTOR MAKES NO OTHER WARRANTIES, EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. You acknowledge that you are not relying upon The Compleat Sculptor's skill or judgment to select or furnish products or goods suitable for any particular purpose or upon any affirmations of fact or promises of The Compleat Sculptor which extend beyond the product specifications provided in the technical bulletins. Accordingly, except as otherwise expressly provided for herein, you agree and acknowledge that you are accepting our products on an “as-is” and “with all faults” basis.
(b) Who May Use This Warranty
This limited warranty extends only to the original purchaser of products from the Site. It does not extend to any subsequent or other owner or transferee of the products.
(c) What This Warranty Does Not Cover
We shall have no warranty obligation if the products become defective in whole or in part as the result of: (i) the transportation of the products; (ii) alterations or modifications to the products not made by us; (iii) improper product use or storage; (iv) your misapplication of the products or failure to follow the instructions provided in the technical bulletins; (v) normal wear and tear; or (vi) use of the products beyond the products’ shelf life.
(d) Your Remedies Under This Warranty
With respect to any defective products, we will, in our sole discretion, either: (i) repair or replace such products (or the defective part) free of charge; or (ii) refund the purchase price of such products. We will also pay for shipping and handling fees to return the repaired or replacement product to you if we elect to repair or replace the defective products.
The remedies described above are your sole and exclusive remedies and our entire obligation and liability for any breach of this limited warranty. Our liability will under no circumstances exceed the actual amount paid by you for the defective product or service that you have purchased through the site, nor will we under any circumstances be liable for any loss of production, work, data, use, business, goodwill, reputation, revenue or profit, any diminution in value, costs of replacement products, or any consequential, incidental, special or punitive damages or losses, whether direct or indirect.
COMPLIANCE WITH LAW
You agree that your purchase and use of our Products will comply with all applicable federal, state, and local laws and regulations, including but not limited to all copyright laws and laws and/or regulations governing the exportation of any products purchased from this site including the payment of any taxes and/or duties due thereon.
INTELLECTUAL PROPERTY USE AND OWNERSHIP
You acknowledge and agree that:
(a) The Compleat Sculptor is and will remain the sole and exclusive owners of all intellectual property rights in and to each product and service made available on this Site and any related specifications, instructions, documentation or other materials made available on this Site, including, but not limited to, all related copyrights, trademarks, patents and other intellectual property rights. You do not and will not have or acquire any ownership, license, right or interest in any these intellectual property rights in or to the products or services made available through this Site, or of any intellectual property rights relating to those products or services.
(b) You expressly agree not to copy or reverse engineer any products sold on this Site nor cause, induce or permit others to do so.
You hereby covenant to protect, defend, indemnify and hold harmless The Compleat Sculptor, including all parent companies, affiliates, subsidiaries, associates, directors, officers, employees, agents, successors and assigns, from and against and from any and all losses or damages (including without limitation attorneys’ fees), claims, allegations, lawsuits, actions, proceedings or investigations, which are made or brought against The Compleat Sculptor (or other person indemnified hereunder) by any person, government, or entity arising out of or in any way related to (a) any purported death or injury to any person or purported damage to any property that resulted or is alleged to have resulted from the negligence or willful misconduct of you, your employees, subcontractors, and agents, in the performance of your obligations hereunder, or from your use of the products sold hereunder; (b) in connection with any drawings, schematics, promotional or advertising matter, guarantees, warranties, labels, or instructions furnished by you or submitted to The Compleat Sculptor by you; (c) out of any infringement of any patent, design, trade name, trademark, copyright, trade secret, or any other intellectual property right or entitlement of any third party due to your use of the products sold hereunder; or (d) out of any environmental, property or toxic tort claim, lawsuit, judgment, loss, civil penalty or action resulting from your use of the products sold hereunder.
DISPUTE RESOLUTION AND BINDING ARBITRATION
(a) YOU AND The Compleat Sculptor AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
(b) The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the applicable consumer or commercial arbitration rules (the “AAA Rules”) then in effect, except as modified by this Section 10. The Federal Arbitration Act will govern the interpretation and enforcement of this section.
(c) The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
(d) You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR The Compleat Sculptor WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
(e) If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Smooth-On.
NO THIRD-PARTY BENEFICIARIES
These Terms do not and are not intended to confer any rights or remedies upon any person other than you.
We may provide any notice to you under these Terms by: (i) sending a message to the email address you provide or (ii) by posting to the Site. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.
If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
These Terms will be deemed the final and integrated agreement between you and us on the matters contained in these Terms. These contain the entire understanding between you and us with respect to the subject matter hereof, and supersede all prior and contemporaneous agreements and understanding, inducements or conditions, express or implied, oral or written, among you and us with respect to your purchase of products from this Site.