GENERAL TERMS AND CONDITIONS OF SALE
Welcome to www.dainese.com (hereinafter the "Website"). These terms and conditions (the "General Terms and Conditions of Sale") govern your use of, access to, and purchase of products from the United States section of www.dainese.com (the "Dainese US Site"). By using the Dainese US Site, you agree to comply with and be bound by these General Terms and Conditions of Sale. If you do not agree to these General Terms and Conditions of Sale, you may not use the Dainese US Site to purchase products or services. Your purchase of products or services shall be deemed acceptance of these Terms and Conditions of Sale.
The products purchased from the Website are sold directly by DAINESE USA Inc., a Delaware corporation, whose registered office is in 1001 Brioso Drive, Costa Mesa CA (hereinafter the "Seller" or "Dainese"). The Seller can be contacted by e-mail with all queries, at the following address: firstname.lastname@example.org.
While the Website is owned by DAINESE S.p.A., an Italian company, with a registered office in Italy, the US site is operated by Dainese USA Inc.
ARTICLE 1) SUBJECT
1.1 These General Terms and Conditions of Sale concern the offer and sale of products and services from a remote position, by means of the Website telematic network.
1.2 The Seller reserves the right to amend these General Terms and Conditions of Sale at any time, also in view of any potential changes to legislation. The new General Terms and Conditions of Sale shall take effect as from the date on which they are published on the Website. The General Terms and Conditions of Sale include an Effective Date at the top of the page. Please check back each time you make a purchase to ensure you have read the most recent General Terms and Conditions of Sale.
ARTICLE 2) PARTIES
2.1 Seller: Dainese USA Inc.
2.2 Client: the party identified from the data entered upon completing and sending the electronic order form, with simultaneous acceptance of these General Terms and Conditions of Sale (hereinafter the "Client"). Entry by the Client of false and/or invented and/or created names in the on-line order procedure and in further communication, is strictly prohibited. The Seller reserves the right to take legal action to pursue any violation and abuse, in the interests of and to protect all consumers. The Client also relieves the Seller of all liability deriving from the issue of incorrect tax documents due to errors relating to the data supplied by the Client, as the Client itself is the only party liable for correct entry.
2.3 Purchases made from the Website are for end consumer clients only and not available to traders, wholesalers, retailers, professionals, etc. intending to sell their products onto third parties. The term "consumer" is used to refer to any natural person acting on the Website for purposes not connected with their commercial, entrepreneurial or professional business (hereinafter the "Consumer"). Non-Consumer Clients are asked to abstain from implementing commercial transactions on the Website. The Seller in any case reserves the right not to process any orders placed by parties other than the Consumer or orders not in compliance with its commercial policy.
2.4 The presentation of the Products on the Website, which is not binding for the Seller, is a mere invitation to the Client to make a contractual purchase proposal and not a public offer.
2.5 No license is given to the purchaser to use images of the products or the names of the products for resale purposes. It is anticipated that the purchaser is an end-user and any warranties, guarantees and promises shall be extinguished if such resale is made by a Non-Consumer purchaser after the original sale.
ARTICLE 3) ON-LINE SALES
3.1 An "on-line contract of purchase or sale" means the remote contract, i.e. the legal trade concerning the sale of movable assets, also including services, such as the cleaning/restoration service (hereinafter the "Products") stipulated by the Seller and the Client as part of a remote sales system organised by the Seller, which, for that contract, uses the remote communication technology referred to as the internet. These contracts will therefore be stipulated directly by the Client accessing the Website, where the Client stipulates the contract to buy the Product by filling in the electronic order form and sending it to the Seller, again telematically, following the relevant instructions. The Client can only purchase the Products offered on the Website, at the price specified there, unless clearly erroneous, following the procedure indicated on the Website. When the Client places an order, at least the following information must be supplied: name, address, e-mail, delivery and billing address, telephone (and/or fax) number and any data relating to the means of payment used.
Purchase requests originating from countries other than the United States or to be sent to addresses to which the Seller cannot send (for reasons such as, for example, the lack of approval of the Product ordered for the relevant country) cannot be accepted by the Seller.
3.2 The Website has a technical data sheet available for each Product, containing their main characteristics and technical specifications. The image provided with each technical sheet describing the Product may not be a perfect representation of its characteristics; colors and sizes may vary and the product may not include accessories, which are instead shown in the image. Changes can be made at any time with no obligation by the Seller to provide notice of such. Product sheets are freely available for consultation. The Seller refuses all liability for any imprecision relating to the Product sheets, insofar as they are provided for information only.
Unless otherwise specified in writing, all prices given are in US dollars. Prices are always and only valid as indicated by the procedure (product sheet or order form) at the time the order is submitted to the Seller. Prices may change with no obligation to provide notice of such. The only correct price is that given at the time the order is confirmed by the Seller, unless clearly erroneous. Applicable taxes, duties, postage or other costs must be added to this, calculated according to the delivery address specified by the Client, and the Client is responsible for any such taxes, duties, postage or other costs (See Article 6).
3.3 The Seller will confirm correct receipt of order by e-mail, sent to the address provided by the Client. The confirmation message provides the order date and details (essential Product characteristics, details of price, means of payment and postage costs) as well as a "Client order number" to be used in all communication with the Seller. The message will give all data entered by the Client, who undertakes to check that it is correct and report any corrections to be made as quickly as possible, in the way specified by the Website. Before sending confirmation of order, the Seller may e-mail the Client for more information relating to the purchase order made via the Website.
3.4 Without prejudice to the provisions of the Article below, the Seller will send the Client an e-mail confirming delivery when dispatching the Product; this will also contain the tracking number to enable the Client to track its progress.
ARTICLE 4) PRODUCT UNAVAILABILITY - RESERVATION
4.1 The temporary unavailability of Products (or specific sizes, measurements, etc.) is specified on the Website by not showing the Products or the relevant sizes/measurements.
4.2 If Products ordered should become unavailable after confirmation of order has been given on the Website by the Client (as described in the Article above, paragraph 3.3), the Seller will within a reasonable time period e-mail the Client to this effect, to the address given at registration, and will refund the payment if it has already been made (the time of effective re-crediting of the amount paid will depend on the payment means chosen by the Client). If the Product should only be partially unavailable, the consequent refund of payment will also be partial.
4.3 In some cases and for some Products, chosen at the discretion of the Seller, a Product booking service will be available, with delivery dates established specifically each time.
In these cases, if the Product booked should effectively be unavailable upon expiry of the terms of delivery agreed, the Seller will refund the Client any payment already made.
ARTICLE 5) ACCEPTANCE OF THE GENERAL TERMS AND CONDITIONS OF SALE
5.1 In submitting telematic confirmation of the purchase order, the Client accepts the General Terms and Conditions of Sale and payment described in this document unconditionally and undertakes to comply with them in all relations with the Seller; he further declares that he has read and agrees to all instructions given him and acknowledges that the Seller will not be bound by any different conditions unless agreed in advance, in writing. Any Client disagreeing with any of the terms given in these General Terms and Conditions of Sale is asked not to submit an order form to purchase Products from the Website.
ARTICLE 6) RETAIL PRICES, TAXES AND DUTIES
6.1 Unless otherwise specified in writing, all prices given are in US dollars. Applicable taxes or duties may be calculated at the time of the checkout, due to different States regulations. Prices are always and only valid as indicated by the procedure (product sheet or order form) at the time the order is submitted to the Seller. Prices may change with no obligation to provide notice of such. The only correct price is that given at the time the order is confirmed by the Seller, unless clearly erroneous.
6.2 The prices given do not include delivery costs. These are calculated before the Seller sends confirmation of order to the Client; the Client undertakes to pay these delivery costs to the Seller in addition to the price specified on the Website.
6.3 The Client shall pay for any further additional cost, charge, tax and/or duty that a given country may apply, by any title, to the Products ordered in accordance with these General Terms and Conditions.
6.4 The Client declares that lack of knowledge of any costs, charges, taxes and/or duties pursuant to paragraphs above at the time an order is sent to the Seller, shall not constitute grounds for termination of this contract and shall not result in any such charges being incurred by the Seller.
ARTICLE 7) METHOD OF PAYMENT
7.1 The Client can pay for the Products purchased and all related delivery costs in any of the ways specified on the Website (credit card, PayPal and bank transfer).
7.2 If Products are purchased by credit card, upon conclusion of the on-line transaction, the reference bank will debit Client's credit card the amount connected to the order only once the Seller has confirmed the order.
If the Client (a Consumer) should exercise his right to withdraw, the Seller shall order the bank to credit the amount to be refunded to the Client's credit card without delay and in compliance with the conditions laid down in Article 12 below. At no point of the purchase procedure is the Seller able to gain information on the Client's credit card; such data is sent by means of a protected, encrypted connection, directly to the website of the bank handling the transaction. The Seller shall not store this data in any computer archives. Under no circumstances, therefore, can the Seller be held liable for any fraudulent or undue use of credit cards by third parties, upon Client’s making payment for Products purchased from the Website.
7.3 If payment should be made by bank transfer to the Seller, the Client must specify, in the reason for payment, the Swift and IBAN codes given in the confirmation of order, as well as the order number. It is understood that, in case of payment with bank transfer, Products will be shipped only after the amount of the price paid has been cleared in Seller's bank account.
ARTICLE 8) DELIVERY METHOD
8.1 Products purchased by the Client will be delivered by the Seller, to the address specified by the Client.
8.2 Seller delivers the Products to the Client using selected express courier services. Client bears all risks of loss and damage to the products from the time the same have cleared our fulfillment house. Delivery is deemed complete and title to the products passes to Client upon acceptance of shipment by a common carrier. As a general rule - but in any case without this forming any restriction for the Seller and without prejudice to: (a) the effective availability of Products; (b) periods of closure of the logistics warehouse for inventories/security controls or holidays; (c) any causes of force majeure; and (d) the verification of the availability of the amount paid in the Seller's bank account in case of payment with bank transfer (as per art.7.3) - the Seller will provide the chosen courier with the Products ordered within two working days of the acceptance of the order. However, barring unforeseen circumstances or circumstances beyond Dainese’s control, delivery should be made within 30 (thirty) days of the day after the date on which the Client submitted the order.
If Products should only be partially available, after confirmation of order, the Seller will inform the Client of this promptly and, with the latter's approval, will dispatch the Products effectively available.
Upon receipt of the Products, the Client must check that the packages are intact and that the quantity and quality coincide with that ordered. Any differences and/or discrepancies must be reported and noted by the Client to the courier immediately; if the packaging or packing of Products ordered by the Client should reach destination showing clear damage, the Client should refuse delivery by the courier or opt to accept it "with reservations" and immediately report such circumstances to Dainese. Products purchased will be delivered to the courier chosen by the Seller, to the delivery address specified by the Client.
8.3 Client agrees to take whatever actions are necessary for the package to be received, including obtaining any prior permissions or arrangements for receipt of the package. Should any costs be incurred due to Client’s failure to take such actions, Client shall be responsible for such fees.
ARTICLE 9) INVOICING
9.1 The Seller will issue in PDF format, upon request, an invoice for the Products shipped, e-mailing it to the Client who accepts to receive it in electronic format,. The information supplied by the Client at the time of order will be used for the invoice. Once the invoice has been issued, no changes can be made to the data specified.
ARTICLE 10) LIABILITY
10.1 Except in cases of willful negligence or misconduct, the Seller shall not be held liable for any direct, indirect or consequential damages that could not be foreseen at the date of stipulating these General Terms and Conditions, suffered by the Client or third parties in connection with the goods or services it provides and/or for any damages of any type or in any way connected with them, deriving from breach of their obligations, even in the event of compensation for damages claimed by third parties, by any title.
The Client specifically acknowledges that the Seller's liability pursuant to the point above is limited to, and may not in any case exceed, the amounts received by it and paid by the Client in connection with the individual goods or services to which said liability refers. All greater damages, losses, costs or expenses are specifically excluded. The Seller shall not be held liable for any disservice and/or prejudice as may be caused to the Client for reasons for which it is not liable or, in any case, from delays due to malfunction, the failure or irregular sending of information or causes beyond its control, including, but not limited to, delays or failures of the system line, interruption to function or lack of internet connection or interruption, suspension and malfunction of internet access nodes, interruption, suspension or poor function of the electronic, postal service or electricity supply; lock-downs or strikes, including of its own staff, where such may occur; impediments or hindrances caused by provisions of law or other acts by national or foreign authorities; legal orders or acts or those of third parties; other causes not at the fault of the Seller and, in general, all impediments or hindrances that cannot be overcome by due diligence on the part of the Seller in connection with the business carried out.
10.2 The Seller has the right to suspend or interrupt connection to the Website at any time for technical reasons or for reasons connected with the efficiency and security of the services; it also has the right to suspend operations as a precautionary measure. The Seller shall not be held liable for the consequences of any such interruptions or suspensions.
10.3 The Seller is not liable for any fraudulent or unlawful use by third parties of the credit cards used by the Client when purchasing the Products. At no point during the purchase procedure is the Seller able to gain awareness of the Client's credit card number.
10.4 Finally, all contractual or non-contractual liability of the Seller for any direct or indirect damages caused to persons and/or objects by failure by the Seller to fully or partially accept an order, is excluded.
ARTICLE 11) WARRANTY COVERING NON-COMPLIANT PRODUCTS - CONVENTIONAL GUARANTEE
11.1 The Website mainly sells Products of brands owned by companies of the Dainese/AGV Group or by partnership companies (by way of example, in the form of commercial collaborations or trademark licences). The Seller does not sell any second-hand or irregular products or products of lower quality than market standard.
11.2 The Seller guarantees the Consumer Client that the Products will be free from design and material flaws and compliant with the descriptions published on the Website for a period of 1 (one) year as from the date the Products are delivered to the Client. Warranties will be invalidated if the Product is used or washed in a manner that is not appropriate for the Product or in line with the instructions/warnings given in this respect by the Seller, or as specified in the reference presentation material, on the tags or on the labels.
This warranty shall apply to any Product seen to have conformity flaws and/or malfunctions that could not be seen at the time of purchase, as long as the Product has been used correctly and with due diligence and, therefore, in respect of its intended purpose and the instructions given in any technical documentation, in compliance with the various operative indications given therein. This warranty shall not apply in the case of negligence or lack of care in Product use and maintenance.
The warranty is personal and shall therefore only apply to the original buyer. It is reserved exclusively to the Clients of the Seller classified as Consumers and not traders, retailers, etc. Non-Consumer purchasers who re-sell the product do so without any warranties and failure to advise subsequent purchasers of the lack of warranty shall be a misrepresentation by the re-seller and shall be deemed an unauthorized re-sale.
11.3 The Seller must be informed of any non-conformity of Products (including non-conformity of a Product as a result of damages suffered during transport) within 2 (two) months of discovery with request sent by email to: email@example.com. The Client must attach this when returning the non-compliant Product, together with a copy of the confirmation of order e-mailed by the Seller, or the invoice. The Seller may also ask the Client to e-mail photographs showing the non-conformity claim made.
11.4 The Seller will contact the Client to organize, where applicable, the courier collection of the non-compliant Product and handle the following stages at no expense to the Client, restoring the Product's conformity by repairing/replacing it or reducing the price accordingly, through the terminating of the on-line sales contract and refunding the price paid.
The time required to repair or replace the Product will depend exclusively on the policies of the individual manufacturers. No damages can be claimed from the Seller for any delays in making the repair or replacement.
11.5 Even if allegedly non-compliant, at the time it is returned to the Seller for repair or replacement, the Product must be complete with all packaging and accessories and documents received by the Client at the time of purchase. Returning the Product without its original packaging, accessories or documentation, as above, will prevent the Seller from acting on the Product and therefore make any repair or replacement impossible. The Seller reserves the right to verify the effective flaws claimed by the Client and to organise the repair or replacement only after such checks have been completed.
If the Seller's verification should reveal that the flaw claimed by the Client is not a flaw in conformity, the Seller reserves the right to charge the Client for the costs of the test and restoration as well as the transport costs incurred. The Client can then choose to have the Products purchased returned, at his own expense. If the Client should refuse delivery, the Seller reserves the right to keep the Products and the price paid for their purchase.
11.6 If the Product should not be found to have a conformity flaw, the Client may request an estimate for its repair/restoration in exchange for payment.
11.7 If the Product sold had been made-to-measure or clearly personalised for the Client, the legal guarantee described in this Article shall not apply with reference to the characteristics of the Product developed in fulfilment of the instructions given by the Client (e.g. length, width, colour, etc.), nor indeed by a Product's look be disputed, insofar as this is an objective characteristic of the item (determined by the manufacturer according to the final use and style chosen by the company for a line of clothing or a given item, and therefore which complies with standards that are exogenous to the Client).
11.8 Some specific Products may also be covered by a specific conventional manufacturer's warranty.
ARTICLE 12) RETURNS
12.1 We want to make sure that you are completely satisfied with your purchases on this Website. If, for any reason, you are not satisfied with your order, you may return any UNUSED products within thirty (30) days from the date of delivery. Before sending any products back to us, please make sure that all of the following conditions have been correctly satisfied.
12.2 The return is subject to the following conditions:
- the right is reserved to Consumers and therefore does not apply to professionals and businesses ;
- the right applies to the whole Product and not parts or components of such;
- in the event of prizes or promotional sales, in which the purchase of one item is connected with another sold at a negligible price (or even free of charge), the right to withdraw may be lawfully exercised with the return of both Products purchased (given the restriction of the item under special offer only being available with the purchase of the other item);
- if the Product sold has been made-to-measure or clearly personalized for the Client, he/she shall have no right to return;
- must be shipped from the United States.
12.3 In order to exercise his right to return, with no need to provide any explanations and incurring no penalty, the Client must:
- if the Client is registered with the Website, he/she will have to express the desire to return by accessing his/her account on the section “Orders” and by following the instructions that will appear after clicking on the “ORDER DETAILS” button.
- if the Client is not registered with the Website, he/she will have to access the section of the website where he/she can insert his/her e-mail address and order number. Then follow the instructions.
12.4 At the same time as submitting notice of return, the Client must act to return the Product to the Seller. The Product must be delivered within 30 (thirty) days of notice by the Client in accordance with paragraph 12.3 and the costs incurred by the Client for returning the Product shall be at the Client's expense (please note the clarification given in paragraph 12.5 below).
12.5 The Product must be returned intact and carefully packaged in its original packing, complete with all accessories. If use/handling of the Product should be seen by the Client, different from the minimum required in order to verify its nature and characteristics, the Client will be liable for the consequent deterioration in value, which is hereby agreed as a reduction of 50% (fifty percent) of the price originally paid; the Seller will withhold this amount when refunding the price.
If return is exercised for several Products pertaining to a single order, the Client shall send them all to the Seller together. The Seller shall not be held liable for any damage or theft/loss of Products returned by the Client using uninsured delivery methods.
12.6 The Client shall be unable to exercise his right to return if the following is ascertained:
- lack of original packaging and/or packing;
- lack of all elements comprising the Product (accessories, tags, labels, information notes, etc.);
- substantial damages to the Product for causes other than transport.
If the right to return should be forfeited, the Seller will duly inform the Client of the impossibility of accepting the return. The latter may then choose to have the Products returned, at his own expense, should he/she so wish. If the Client should refuse delivery, the Seller reserves the right to keep the Products and the price paid for their purchase.
12.7 Without prejudice to the provisions above under paragraph 12.5 on the reduction in value or grounds for forfeiture of the right to return, the Seller will refund the price of the Product for which the Client has exercised his right to return, Sales Tax included, less any original shipping costs within 20 (twenty) days of the date on which the Seller receives the returned Product; this shall be in accordance with the methods specified above, by crediting the amount to be refunded in an appropriate manner depending on the original method of payment used by the Client (re-crediting the credit card or PayPal account, bank transfer, etc.).
12.8 If the addressee of the Product as specified on the order form and the person who made payment of the price of the purchase should not coincide, if the right to return is exercised, the Seller will in any case refund the person who made the payment.
12.9 Even if the Client should wish to exchange the Product purchased in exercising his right to return (different size, model, etc.), delivery costs for returning the Product to the Seller shall be paid by the Client, without prejudice to the application of the procedure established under paragraph 12.5.
ARTICLE 13) INFORMATION AND CLAIMS
13.1 The Seller can be contacted at the following e-mail address for any requests for clarification or claims: firstname.lastname@example.org.
ARTICLE 14) COMMUNICATION
14.1 The Client acknowledges and agrees that all communication, notifications, certifications, information, reports and any other documents relating to the operations performed in connection with the purchase of the Products will be e-mailed to the address specified by the Client at the time of registration; information will be able to be downloaded onto a permanent storage device in accordance with the terms and conditions established by the Website. For users registered in accordance with the procedure described above under paragraph 3.3, this information will remain available in the Client's account for at least 1 (one) year.
14.2 The Seller indicates the following as means of communication:
- postal address: Dainese USA Inc. - 1001 Brioso Drive, Costa Mesa, 92627, California (USA)
- email: email@example.com
ARTICLE 15) ORDER CANCELLATION BY SELLER
15.1 The Seller reserves the right to refuse or cancel an order or Product that is part of an order if any situation should arise that may cause suspicion of credit card fraud, or for any other legal reason that Seller determines to require cancellation.
ARTICLE 16) APPLICABLE LAW AND COURT OF JURISDICTION
Any dispute arising under this Terms and Conditions of Sale or related to the Website shall be exclusively resolved by California state or federal courts (or through arbitration as set forth below), applying California law regardless of principles of conflicts of laws. By your use, you waive any jurisdictional, venue or inconvenient forum defenses for purposes of resolving disputes hereunder.
ARTICLE 17) BINDING ARBITRATION / CLASS ACTION WAIVER
17.1 You and DAINESE agree to arbitrate all disputes between you and DAINESE or its affiliates, except disputes relating to the enforcement of DAINESE or its affiliates’ intellectual property rights. “Dispute” includes any dispute, action or other controversy between you and us concerning the DAINESE products or services, or these terms, whether in contract, tort, warranty, statute or regulation, or other legal or equitable basis. You and DAINESE empower the arbitrator with the exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of these terms or formation of this contract, including the arbitrability of any dispute and any claim that all or any part of these terms are void or voidable.
17.2 In the event of a dispute, you or DAINESE must send to the other party a notice of dispute, which is a written statement that sets forth the name, address and contact information of the party giving the notice, the facts giving rise to the dispute and the relief requested. You must send any notice of dispute to DAINESE, USA, Inc, at 1001 Brioso Drive, Costa Mesa CA, United States of America Attention: Legal/Arbitration Notice. We will send any notice of dispute to you at the contact information we have for you. You and DAINESE will attempt to resolve a dispute through informal negotiation within sixty (60) days from the date the notice of dispute is sent. After sixty (60) days, you or we may commence arbitration. You may also litigate a dispute in small claims court if the dispute meets the requirements to be heard in small claims court, whether or not you negotiated informally first.
17.3 If you and DAINESE do not resolve a dispute by informal negotiation or in small claims court, the dispute shall be settled by binding arbitration before a neutral arbitrator whose decision will be final except for a limited right of appeal under the U.S. Federal Arbitration Act. YOU ARE GIVING UP THE RIGHT TO LITIGATE A DISPUTE IN COURT BEFORE A JUDGE OR JURY. Arbitration will be administered by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules and its Supplementary Procedures for Consumer Related Disputes. For more information, visit www.adr.org or, in the United States, call 800-778-7879. Arbitration may be conducted in person in California, through the submission of documents, by phone or online. The arbitrator may award damages to you individually as a court could, including declaratory or injunctive relief, but only to the extent required to satisfy your individual claim. You and DAINESE agree to submit to the personal jurisdiction of the federal or state courts located in California, in order to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
ARTICLE 18) CLASS ACTION WAIVER
18.1 PROCEEDINGS TO RESOLVE OR LITIGATE A DISPUTE IN ANY FORUM WILL BE CONDUCTED ON AN INDIVIDUAL BASIS. Neither you nor DAINESE will seek to have a dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding can be combined with another without the prior written consent of all parties to the arbitration or proceeding. If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration.
ARTICLE 19) ENTIRE AGREEMENT
19.1 The General Terms and Conditions of Sale constitute the sole and entire agreement between DAINESE and Client and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the purchase of products from the Dainese US Site.