TERMS AND CONDITIONS
1. Acceptance: All Purchase Orders (as defined below) or other proposed agreements for the sale of goods (“Goods”) by DESiN LLC (“DESiN”) are subject to acceptance, in writing, by DESiN and are not binding on DESiN unless so accepted. These Standard Terms and Conditions (“Standard Terms of Sale”) are applicable to all purchase orders, quotations, schedules or ancillary agreements concerning the sale of Goods, of any nature (collectively, the “Purchase Order”), and are the only terms and conditions that apply to the sale of DESiN’s Goods, except those specifically set forth in any Purchase Order and accepted in writing by DESiN. Any term or condition or standard of performance different from or in addition to these Standard Terms of Sale, whether set forth on the Purchase Order or otherwise proposed by Customer, must be agreed to, in writing, by DESiN in advance, and in the event of any conflict or inconsistency, between these Standard Terms of Sale and any Purchase Order or other document proposed by Customer, these Standard Terms and Conditions will control. Customer agrees that Customer’s submission of a Purchase Order to DESiN or Customer’s acceptance of any Goods provided by DESiN shall constitute Customer’s irrevocable acceptance of these Standard Terms of Sale.
2. Prices: Prices for the Goods set forth in the Purchase Order, unless otherwise stated in writing, do not include taxes, as set forth in these Standard Terms and Conditions, transportation or shipping charges, special packaging or other services unless otherwise set forth in the Purchase Order. Prices are all quoted in denominations of United States’ Dollars. The price for custom items not otherwise available for sale will be quoted by DESiN on a job-by-job basis. DESiN reserves the right to correct any error in prices.
3. Terms of Payment: Unless otherwise specified in writing, payment shall be received by DESiN prior to any shipment of any Goods. Payment shall be made in denominations of United States currency.
4. Customer Inspection: Upon Customer’s receipt of shipment, Customer shall immediately inspect the Goods. Unless Customer provides DESiN with written notice of any claim for shortages of or patent defects in the Goods within five (5) days after receipt of shipment, such Goods shall be deemed finally inspected, checked and accepted by Customer and in full compliance with these Standard Terms of Sale.
5. Delivery/Risk of Loss/Transportation/Insurance/Packaging:
- DESiN shall use reasonable commercial efforts to make delivery of Goods or perform services within the time requested on Customer’s Purchase Order. DESiN shall use its own discretion in choice of carrier and method of packing. Risk of loss shall pass to Customer at the time of delivery to the customer. DESiN has no obligation to obtain insurance for Customer covering Goods in transit to Customer.
- Prices stated are based on DESiN’s standard packaging. Packaging will be standard commercial packaging and acceptable to the commercial carrier.
6. Cancellation and Returns: [versus 14 days in guaranty]
- Orders cannot be terminated, cancelled or modified, or shipment deferred after acceptance of Customer’s order by DESiN, except with DESiN’s written consent and subject to the conditions described in this Section. DESiN’s written consent will only be given upon payment of reasonable charges for any expenses incurred by DESiN in processing the order and return, including without limitation, current restocking charges.
- Customer may not return Goods and DESiN is not obligated to accept returned Goods without DESiN’s written authorization. In the event DESiN authorizes a return, this paragraph governs the terms and conditions of such returns. Requests to return Goods must be made within fourteen (14) days from the date of shipment and must contain Customer’s order number, DESiN’s order and invoice numbers, and the date received by Customer. Returned Goods are subject to DESiN’s then current restocking charge, freight for both delivery and return, and any necessary reconditioning and/or repackaging charges. Returned Goods must be shipped within three (3) business days from the return authorization date. Goods must be returned in new condition, in the original factory packaging, and are subject to inspection. Any damaged or unsalable Goods will be credited by DESiN at the sale price less the cost of repairs or at salvage value. Special order or discontinued items or Goods manufactured to order, including without limitation, custom orders, are not returnable under any condition. Defective Goods will be addressed pursuant to DESiN’s Limited Warranty.
7. Force Majeure: DESiN will not be liable or otherwise responsible for any damage, loss, fault, or expenses arising out of delays in manufacturing, shipment or other non-performance of any Purchase Order caused or imposed by: strikes, fires, disasters, riots, acts of nature; intervention of government, war or threat of war, acts of terrorism, conditions similar to war, sanctions, blockades, embargoes; acts of Customer; shortages of labor, fuel, power, materials, supplies, transportation, or manufacturing facilities; governmental action, subcontractor delay or any other cause, condition or circumstance beyond DESiN’s reasonable control (collectively, “Force Majeure”). If there is a delay or nonperformance due to Force Majeure, then DESiN may, at its option, and without liability, revoke all or any portions of its acceptance of Customer’s Purchase Order and/or extend any date upon which any performance thereunder is due.
8. Limited Warranty/Disclaimer of Warranties: The parties expressly agree that Customer’s sole and exclusive remedy against DESiN shall be for the repair and replacement of defective Goods as provided herein. THE WARRANTIES SET FORTH BELOW ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. NO AFFIRMATION OF DESiN, BY WORDS OR ACTION, OTHER THAN AS SET FORTH IN THIS SECTION, NOR ANY ADDITIONAL WARRANTIES, EXPRESS OR IMPLIED, MADE BY DESiN TO CONSUMER PURCHASERS OF THE GOODS SHALL CONSTITUTE A WARRANTY HEREUNDER. DESiN’s warranty does not apply to any Goods that have been subjected to misuse, mishandling, misapplication, neglect (including but not limited to improper maintenance), accident, improper installation, modification (including but not limited to use of unauthorized parts or attachments), or adjustment or repair performed by anyone other than DESiN or one of DESiN’s authorized agents. In no event shall DESiN be responsible for the quality or performance of any goods manufactured by other parties; such Goods shall carry only the warranty of the manufacturer.
Except as otherwise set forth below, any claim by Customer with reference to the Goods sold pursuant to the Purchase Order shall be deemed waived by the Customer unless submitted in writing to DESiN within the earlier of (i) five (5) days following the date Customer discovered, or by reasonable inspection should have discovered, any claimed breach of the foregoing warranty, or (ii) thirty (30) days following the date of shipment. Any legal dispute for breach of the foregoing warranty shall be initiated within one (1) year from the date the alleged breach was discovered or should have been discovered, whichever occurs first.
Subject to the provisions of these Standard Terms of Sale, the Limited Warranty that applies to all Goods sold is as follows:
LIMITED WARRANTY
DESiN LLC (“DESiN”) guarantees, subject to the terms below, that if your Obi is verified to be defective in material or workmanship at the time of delivery, DESiN will, at its discretion, either: (i) repair Obi using new or refurbished parts or (ii) replace Obi with a new or refurbished device.
Term: This Limited Warranty expires 12 months from the date of purchase or after the first 400 hours of Obi’s usage, whichever occurs first.
Limitations: This Limited Warranty excludes spoons, plates, placemats, and switches. Spoons, plates, placemats, and switches are non-returnable once used. Only manufacturing defects of materials or workmanship are covered when Obi is used properly and maintained in accordance to all included instructions. This warranty is void if Obi is improperly handled, dropped, put in a microwave, or exposed to excessive liquid(s), etc. In addition, any attempt(s) to open or dismantle Obi, including the robotic arm or base assembly, will void this warranty. The warranty is limited to the initial purchaser of the Obi. The term of warranty identified above also operates to limit any implied warranties of merchantability or fitness under State law. Some States do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you. DESiN LCC will not be liable for any incidental or consequential damages as a result of customer use. 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.
Instructions: In order to obtain warranty service, deliver the Obi in either its original packaging or packaging with an equal degree of protection to the service center designated by an authorized DESiN representative. An intact serial number or UPC is required for warranty claims. Customer is responsible for all shipping and handling charges for the return of the Obi for warranty service. For information on how to obtain warranty service on your device,
Call DESiN LLC at 1-844-HELPOBI (435-7624)
Or email us at [email protected]
Other Terms and Conditions/Legal Rights: This warranty is issued pursuant to the terms and conditions of sale entered into when you purchased your Obi, the provisions of which govern this Limited Warranty. This Limited Warranty gives you specific legal rights, and you may also have other rights which vary from State to State.
Return Policy: Any unopened and unused Obi can be returned within 14 days for a full refund. Call 1-844-435-7624 or [email protected] to arrange for return.
9. Limitation of Liability: DESIN WILL IN NO EVENT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, PAIN AND SUFFERING, OR PUNITIVE DAMAGES TO ANY PERSON, WHETHER BASED UPON BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, TORT, BREACH OF CONTRACT OR ANY OTHER THEORY, REGARDLESS OF WHETHER THE REPLACEMENT OR REFUND REMEDY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE OR FOR ANY OTHER REASON WHATSOEVER. “CONSEQUENTIAL DAMAGES” FOR PURPOSES HEREOF SHALL INCLUDE, WITHOUT LIMITATION, LOSS OF USE, INCOME OR PROFIT, OR LOSSES SUSTAINED AS THE RESULT OF INJURY (INCLUDING DEATH) TO ANY PERSON OR LOSS OR DAMAGE TO PROPERTY (INCLUDING, WITHOUT LIMITATION, PROPERTY HANDLED OR PROCESSED BY THE USE OF THE GOODS).
10. Safety Information: DESiN has supplied or made available to Customer certain information relating to safety conditions and procedures concerning the Goods, and Customer acknowledges receipt thereof and further acknowledges that it has reviewed and understands same. Customer agrees to abide by all safety procedures and a warning provided by DESiN, and further agrees to use the Goods only in conformity with the instructions provided and the intended use(s) of the Goods.
11. Trademarks: The purchase of Goods from DESiN does not entitle Customer to use, register, or otherwise identify Customer or its business with the name, trademark, service mark or other identity of DESiN or the name Obi or its likeness without express written permission from DESiN. All such marks and goodwill associated with such marks remain the sole and exclusive property of DESiN.
12. Taxes: Unless otherwise specifically provided on the face of any Purchase Order, the price for the Goods purchased does not include sales, use, excise or similar taxes, whether tariffs, duties, special assessments. The amount of any such taxes, tariffs, duties and special assessments applicable to the Goods shall be paid by Customer in the same manner and with the same effect as if originally included in the purchase price.
13. Additional Charges: If substitute or additional Goods, or repair parts, are purchased by Customer from DESiN, the provisions of these Standard Terms of Sale shall be applicable to such purchase, the same as if such substitute or additional Goods or repair parts had been originally purchased hereunder.
14. Entire Agreement: These Standard Terms of Sale, together with the terms and conditions contained on the face side of DESiN’s invoice or quotation, constitute the entire agreement between DESiN and Customer with respect to the matters contained therein, and supersedes all prior oral or written representations, proposals, correspondence, discussions, negotiations and agreements. No course of prior dealings, acceptance or acquiescence in a course of performance and no usage of the trade shall be relevant to supplement, explain or modify any terms contained herein. All representations, promises, warranties or statements by an agent or employee of DESiN that differ in any way from the terms and conditions hereof shall be given no effect or force. No waiver or alteration of terms herein, including any added or different terms identified on any invoice, quotation, or Purchase Order, shall be binding unless in writing signed by an executive officer of DESiN.
15. Priority: In the event of any inconsistency among the provisions in these Standard Terms of Sale or the Purchase Order, precedence shall be given first to these Standard Terms of Sale, and second, to the special terms and conditions contained on the face of the Purchase Order and accepted, in writing, by DESiN.
16. Governing Law: The sale of Goods pursuant to the Purchase Order shall be subject to and construed in accordance with the laws of the State of Michigan, United States of America, applicable to contracts made and performed in the State of Michigan without giving effect to any choice or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Michigan. Exclusive jurisdiction and venue for any action arising between the parties with respect to the Goods shall lie in the Courts of Oakland County, Michigan or in federal courts situated in the Eastern District of Michigan (Southern Division) if federal court jurisdiction is invoked. The parties irrevocably consent and submit to the personal jurisdiction of said courts and agree not to challenge or assert any defense to the exclusive jurisdiction and venue of said courts including, without limitation, forum non conveniens. Customer and DESiN agree that, notwithstanding these exclusive jurisdiction and venue provisions, the parties intend to be bound by the mandatory arbitration clause articulated in these Standard Terms of Sale. The parties hereby exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
17. Severability: If any provision of these Standard Terms of Sale is deemed invalid or unenforceable by any court of competent jurisdiction or under any statute, regulation, ordinance, executive agreement or other rule of law, such provision shall be deleted or modified, at the election of Customer and DESiN, but only to the extent necessary to comply with such ruling, statute, regulation, ordinance, agreement or rule, and the remaining provisions of these Standard Terms of Sale and the Purchase Order shall remain in full force and effect.
18. Non-Waiver: No change, modification or waiver of any provision of these Standard Terms of Sale shall be valid or binding unless it is accepted in writing, by DESiN. A waiver by either party of any breach or failure to enforce any term or condition of these Standard Terms of Sale shall not in any way affect, limit or waive such party’s right at any time to enforce strict compliance with that or any other term or condition of these Standard Terms of Sale.
19. Binding / Non-Assignment: This contract shall be binding upon and shall inure to the benefit of the successors, and permitted assigns of Customer and DESiN, provided, however, that Customer may not assign any portion of its rights or delegate any portion of its obligations hereunder or under any Purchase Order without in each instance obtaining DESiN’s prior written consent. Any attempted assignment by Customer or assignment by Customer of this contract without DESiN’s prior written consent is void.
20. DESiN’s Performance Excused Upon Customer’s Breach: In addition to the rights and remedies conferred upon DESiN by law or in equity, DESiN shall not be required to proceed with the fulfillment of any Purchase Order or the performance of any contract if Customer is in default in the performance of any order or contract with DESiN, and in cases of doubt as to Customer’s financial responsibility, shipments under this order may be suspended or sent sight draft with bill of lading attached by DESiN. Additionally, in the case of subsequent orders or, in the case of open Purchase Orders, DESiN is not required to proceed with the fulfillment of any subsequent order or perform such open Purchase Order if Customer is in breach with regard to any prior fulfilled orders, including, without limitation, non-payment.
21. Binding Arbitration: Any controversy or claim arising out of or relating to the Goods, these Standard Terms of Sale, or any related agreement between Customer and DESiN shall be settled by binding arbitration in accordance with the following provisions:
- The agreement of the parties to arbitrate covers all disputes of every kind relating to or arising out of these Standard Terms of Sale and the Goods, as well as any claim based on tort or any other causes of action relating to the transactions contemplated by of these Standard Terms of Sale, such as claims based on an allegation of fraud or misrepresentation and claims based on a federal or state statute. In addition, the arbitrators selected according to procedures set forth below shall determine the arbitrability of any matter brought to them, and their decision shall be final and binding on the parties
- The forum for the arbitration shall be Oakland County, Michigan (USA).
- The governing law for the arbitration shall be the laws of the State of Michigan, as more fully provided for in the “Governing Law” section of these Standard Terms of Sale.
- There shall be three arbitrators, unless the parties are able to agree on a single arbitrator. In the absence of such an agreement within 10 days after the initiation of an arbitration proceeding, each party shall select one arbitrator, and those two arbitrators shall then select, within 10 days, a third arbitrator. If those two arbitrators are unable to select a third arbitrator within that 10-day period, a third arbitrator shall be appointed through the Arbitrator Selection Process facilitated through the American Arbitration Association. The decision in writing of at least two of the three arbitrators shall be final and binding on the parties.
- The rules of arbitration shall be the Consumer Arbitration Rules of the American Arbitration Association, as modified by any other instructions that the parties may agree on at the time, except that each party shall have the right to conduct discovery in any manner and to the extent authorized by the Federal Rules of Civil Procedure as interpreted by the federal courts. If there is any conflict between those rules and the provisions of this Section 21, the provisions of this Section shall prevail.
- The arbitrators’ decision shall provide a reasoned basis for the resolution of each dispute and for any award. The arbitrators shall not have the power to award damages in connection with any dispute in excess of actual compensatory damages and shall not multiply actual damages or award consequential or punitive damages or award, pain and suffering, or any other damages that are excluded under the provisions of these Standard Terms of Sale.
- Each party shall bear its own fees and expenses (including attorney fees) regarding the arbitration and any related proceeding, and the parties shall share equally the fees and expenses of the arbitrators.
- The arbitrators shall have power and authority to award any remedy or judgment that could be awarded by a court of law in the state of Michigan consistent with these Standard Terms of Sale. The award rendered by arbitration shall be final and binding on the parties, and judgment on the award may be entered in any court of competent jurisdiction in the United States.
