Thank you for your interest in the products offered by MotorMood, LLC (the “Company,” “us,” or “we”) through www.motormood.com (the “Website”). The terms “you,” “your,” and “yours” refer to anyone placing an order for the products through the Website.
These Terms and Conditions of Sale (these “Terms”) apply to the purchase and sale of the products through the Website.
IMPORTANT – PLEASE READ CAREFULLY: THESE TERMS CONTAIN VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO YOU. BY PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM THIS WEBSITE, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (I) AT LEAST 18 YEARS OF AGE OR (IIi) LEGAL AGE TO FORM A BINDING CONTRACT WITH MOTORMOOD, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE’S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
1. Order Acceptance and Cancellation.
You agree that your order is an offer to buy, under these Terms, all products listed in your order. All orders must be accepted by us or we will not be obligated to sell the products to you. We may choose not to accept any orders in our sole discretion. After having received your order, we will send you a confirmation e-mail with your order number and details of the items you have ordered. Acceptance of your order and the formation of the contract of sale between the Company and you will not take place unless and until you have received your order confirmation e-mail. You have the option to cancel your order at any time before we have sent your order confirmation e-mail by calling our Customer Service Department at [(424) 247-6073.
2. Prices and Payment Terms.
(a) All prices posted on this Website are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be set out in your order confirmation e-mail. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total and will be itemized in your shopping cart and in your order confirmation e-mail. 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.
(b) Terms of payment are within our sole discretion and payment must be received by us before our acceptance of an order. We accept major credit cards and certain other forms of payment supported by our payment processor from time to time for all purchases. You represent and warrant that (i) the credit card or other payment account information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card or payment account for the purchase, (iii) charges incurred by you will be honored by your credit card company or source of other payment account, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.
3. Shipments; Delivery; Title and Risk of Loss.
(a) We will arrange for shipment of the products to you. Please check the individual product page for specific delivery options. You will pay all shipping and handling charges specified during the ordering process.
(b) Title and risk of loss pass to you upon our transfer of the products to the carrier. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
4. Limited Warranty.
THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
THIS LIMITED WARRANTY CAN ALSO BE FOUND IN THE DOCUMENTATION WE PROVIDE WITH THE PRODUCTS.
WE WARRANT THAT, DURING THE WARRANTY PERIOD (AS DEFINED BELOW), THE PRODUCTS PURCHASED FROM THE SITE WILL BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP.
OTHER THAN THE LIMITED WARRANTY SET FORTH ABOVE, MOTORMOOD MAKES NO WARRANTIES, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
OUR RESPONSIBILITY FOR DEFECTIVE PRODUCTS IS LIMITED TO REPAIR, REPLACEMENT OR REFUND AS SET FORTH IN THIS WARRANTY STATEMENT.
(a) Who May Use This Warranty?
This limited warranty extends only to the original purchaser of products from the Website. It does not extend to any subsequent or other owner or transferee of the product or any transferee or other beneficiary of the service.
(b) What Does This Warranty Cover?
This limited warranty covers during the Warranty Period (as defined below) defects in materials and workmanship in products and services purchased from the Website.
(c) What Does This Warranty Not Cover?
This limited warranty does not cover any damages due to: (i) transportation; (ii) storage; (iii) improper use; (iv) failure to follow the product instructions or to perform any preventive maintenance; (v) modifications; (vi) combination or use with any products, materials, processes, systems or other matter not provided or authorized in writing by the Company; (vii) unauthorized repair; (viii) normal wear and tear; or (ix) external causes such as accidents, abuse, or other actions or events beyond our reasonable control.
This limited warranty does not apply to: (i) consumable parts, such as batteries, unless damages has occurred due to a defect in materials or workmanship; (ii) cosmetic damages; or (iii) any products not produced by the Company, even if bundled with the Company’s products.
(d) What is the Period of Coverage?
This limited warranty starts on the date of your purchase and lasts for three months (the “Warranty Period”). The Warranty Period is not extended if we repair or replace a warranted product or re-perform a warranted service. We may change the availability of this limited warranty at our discretion, but any changes will not be retroactive.
(e) What Are Your Remedies Under This Warranty?
With respect to any defective products during the Warranty Period, we will, in our sole discretion, either: (i) repair or replace such products (or the defective part) with new or refurbished parts free of charge or (ii) refund the purchase price of such products.
(f) How Do You Obtain Warranty Service?
To obtain warranty service, you must e-mail our Customer Service Department at [___________] during the Warranty Period to obtain an RMA number. No warranty service will be provided without an RMA number.
(g) What can you do in case of a dispute with us?
The informal dispute resolution procedure detailed in Section 10 is available to you if you believe that we have not performed our obligations under this limited warranty or these Terms.
5. Limitation of Liability.
THE REMEDIES DESCRIBED ABOVE ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY.
THE COMPANY SHALL HAVE NO LIABILITY FOR SPECIAL, INDIRECT, RELIANCE, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF USE, PROFITS, REVENUES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS BASED ON ANY BREACH OR DEFAULT OF MOTORMOOD, HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY. YOUR SOLE REMEDY AND THE COMPANY’S SOLE AND TOTAL LIABILITY FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT (INCLUDING BREACH OF WARRANTY) OR TORT (INCLUDING NEGLIGENCE OR MISREPRESENTATION) OR UNDER STATUTE OR OTHERWISE SHALL BE LIMITED TO AND SHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID BY YOU TO THE COMPANY FOR THE PRODUCT, WHICH GIVES RISE TO CLAIMS. YOU SHALL ALWAYS INFORM THE COMPANY OF ANY BREACH AND AFFORD THE COMPANY REASONABLE OPPORTUNITY TO CORRECT ANY BREACH. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
7. Force Majeure.
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.
8. Governing Law.
All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.
9. Binding Arbitration and Class Action Waiver.
PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE IN DISCOVERY; AND (4) APPEAL RIGHTS WILL BE LIMITED.
If a dispute arises between you and us, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and the Company agree that you and we will resolve any claim or controversy at law or equity that arises out of these Terms, the Website, or our products or services (a “Claim”) in accordance with one of the subsections below:
(i) If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any person who uses your Account, and us, our affiliates, and/or agents, if it relates to your Account, your use of the Website, or to these Terms, except as noted hereafter.
(ii) Either party may assert an individual case in small claims court or your state’s equivalent court. Any disputes relating to the enforcement, protection, or validity of the intellectual property rights of either party shall not be subject to arbitration. Nothing in this Section shall limit either party from seeking injunctive or other exigent relief from a court of law.
Notwithstanding any other language in this Section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this Section of these Terms. However, any dispute or argument that concerns the validity or enforceability of these Terms as a whole is for the arbitrator, not a court, to decide. Further, you and we may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY OTHER USER OR PERSON NOT ON YOUR ACCOUNT.
The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be mailed to [physical address].
The arbitration administrator shall be JAMS and the arbitration shall be conducted under the Streamlined Arbitration Rules and Procedures of JAMS (“JAMS Rules”) that are in effect at the time the arbitration is initiated. The JAMS Rules can be accessed at http://www.jamsadr.com/rules-streamlined-arbitration/. In the event of a conflict between the terms set forth in this Section of the Agreement and the JAMS Rules, the terms in this Section of the Agreement will control. The arbitrator must apply the same law and legal principles, consistent with the FAA, which would apply in court, but may use different procedural rules. We will pay all the fees that the administrator or arbitrator charges.
Because the products, software and/or service provided to you by the Company concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. California law shall apply to the extent state law is relevant under the FAA. The arbitrator’s decision will be final and binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged under the provisions of the FAA.
Except for claims subject to arbitration as provided for in this section (and claims proceeding in any small claims court), all other disputes arising out of or related to your Account, your use of the Site, or to this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in Orange County, California, and you agree to submit to the personal jurisdiction and venue of such courts.
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 10 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
11. No Waivers.
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 the Company.
12. No Third Party Beneficiaries.
These Terms do not and are not intended to confer any rights or remedies upon any person other than you.
(a) To You. We may provide any notice to you under these Terms by: (i) sending a message to the e-mail address you provide or (ii) by posting to the Website. Notices sent by e-mail will be effective when we send the e-mail and notices we provide by posting will be effective upon posting. It is your responsibility to keep your e-mail address current.
(b) To Us. To give us notice under these Terms, you must contact us as follows: by personal delivery, overnight courier or registered or certified mail to MotorMood, LLC [_______________________]. We may update the address for notices to us by posting a notice on the Website. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
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.
15. Entire Agreement.