Legal Information & Notices
Sales & Refund Terms And Conditions
These terms of sale (“Terms”) apply to all orders accepted by CarbonWorks, Inc. (“CarbonWorks”) for the sale of its devices and accessories (“Products”), except in the case that you and CarbonWorks have executed a written agreement that supersedes these Terms. To the extent the Products contain or consist of software in any form (“Software”), such Software is licensed to you, not sold, and only in accordance with the section entitled “Software License”, below. Terms such as “sell” and “purchase”, as used in these Terms, apply only to the extent the Products consist of items other than Software.
By placing an order through the Carbon Mobile Store, you agree that: (i) any credit card information supplied by you is true and complete; and (ii) you will pay the applicable price listed, as well as any shipping and handling charges and applicable taxes. Products purchased by you are for personal or gift use and not for commercial use.
CarbonWorks’can withdraw Products from the Carbon Mobile Store at any time and for any reason. Prices listed through the Carbon Mobile Store are stated in U.S. dollars and include shipping and handling charges and applicable taxes. You agree that you are responsible to pay these taxes and to indemnify and hold CarbonWorks’harmless from and against any liabilities, interest, penalties or fees assessed against CarbonWorks’arising from your failure to pay any such taxes. All Product prices are subject to change at any time.
ACCEPTANCE AND FULFILLMENT
All orders are subject to acceptance by CarbonWorks. After you place an order, you will receive an email from CarbonWorks confirming that CarbonWorks has received it. Acceptance of your order will occur upon your receipt of another email from CarbonWorks containing a shipping confirmation, tracking number and carrier information. If an order is on back order, we’ll send you an email indicating that this is the case, followed by another email when the items in question are in stock containing a shipping confirmation, tracking number and carrier information. CarbonWorks reserves the right not to accept your order for any reason or no reason. CarbonWorks reserves the right to restrict multiple quantities of a Product being shipped to any one customer or postal address.
Purchases made through the Carbon Mobile Store are intended for end users only, and are not authorized for resale.
SHIPPING AND DELIVERY
CarbonWorks will pack the Products in accordance with its standard practices. Title to the Products (except to the extent that the Products consist of Software) and risk of loss will pass to you upon CarbonWorks’delivery of the Products to the carrier. You acknowledge that all scheduled shipment dates are estimates only. CarbonWorks will make reasonable efforts to meet the scheduled shipment dates, but in no event will CarbonWorks be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery.
If you are unsatisfied with any Product purchased from the Carbon Mobile Store for any reason, you will have thirty (30) days from the date of purchase to request a full refund. For full details on the return process, please see https://www.carbonmobile.com/Legal/Sales.
LIMITED PRODUCT WARRANTY
CarbonWorks warrants to the original purchaser that your Product shall be free from defects in materials and workmanship under normal use for a period of one (1) year from the date of purchase, except that if you reside in the European Economic Area (EEA) and you purchased your CarbonWorks product in the EEA, the warranty period is two (2) years from the date of purchase. For full details on the Limited Product Warranty, please see https://www.carbonmobile.com/Legal/Sales.
You are solely responsible for determining the compatibility of the Products with other equipment, and you accept that lack of compatibility is not a valid claim under the warranty provided with your Products and does not otherwise constitute a basis for receiving a refund after the 45 day refund policy identified above.
LIMITATIONS ON LIABILITY
IN NO EVENT WILL CARBONWORKS BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, USE, PROFITS, DATA, OR GOODWILL) OR COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS OR THE PURCHASE, SALE, USE, OPERATION OR PERFORMANCE OF THE PRODUCTS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT CARBONWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. CARBONWORKS AND YOU HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL CARBONWORKS’LIABILITY TO YOU ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE ACTUAL AMOUNT PAID TO CARBONWORKS BY YOU FOR THE PRODUCT THAT GIVES RISE TO THE CLAIM. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
CarbonWorks grants to you a nonexclusive, nontransferable license to use the Software, in executable form, solely as embedded in the Products, solely for your internal, non-commercial use. You may not copy or modify the Software. You acknowledge that the Software contains trade secrets of CarbonWorks, and, in order to protect such trade secrets, you agree not to disassemble, decompile or reverse engineer the Software nor permit any third party to do so, except to the extent such restrictions are prohibited by law. CarbonWorks reserves all rights and licenses in and to the Software not expressly granted to you under this Agreement.
You agree that any dispute between you and CarbonWorks arising out of or relating to these Terms, or any other CarbonWorks products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.
The Terms and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of Delaware (USA) without regard to its conflict of laws principles.
INFORMAL DISPUTE RESOLUTION
We want to address your concerns without needing a formal legal case. Before filing a claim against CarbonWorks, you agree to try to resolve the Dispute informally by contacting [email protected]. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or CarbonWorks may bring a formal proceeding.
FORMAL DISPUTE RESOLUTION
a) Generally. In the interest of resolving disputes between you and CarbonWorks in the most expedient and cost effective manner, you and CarbonWorks agree that any and all disputes arising in connection with this Agreement shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. You understand and agree that, by entering into these Terms, you and CarbonWorks are each waiving the right to a trial by jury or to participate in a class action.
b) Exceptions. Notwithstanding subsection (a), we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims
c) Arbitrator. Any arbitration between you and CarbonWorks will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1–800–778–7879, or by contacting CarbonWorks.
d) Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). CarbonWorks’ address for Notice is: CarbonWorks Inc., 16192 Coastal Highway, Lewes, DE 19958, USA. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or CarbonWorks may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or CarbonWorks shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
e) Fees. Any arbitration hearings will take place at a location to be agreed upon in East Sussex County, Delaware, provided that if the claim is for $10,000 or less, CarbonWorks may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse CarbonWorks for all monies, if any, previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
f) No Class Actions. YOU AND CARBONWORKS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and CarbonWorks agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
g) Modifications. In the event that CarbonWorks makes any future change to this arbitration provision (other than a change to the CarbonWorks’ address for Notice), you may reject any such change by sending us written notice within 30 days of the change to CarbonWorks’ address for Notice, in which case your account with CarbonWorks shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
h) Enforceability. If only Subsection (f) of this Section 16 or the entirety of this Section 16 is found to be unenforceable, then the entirety of this Section 16 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 16 shall govern any action arising out of or related to these Terms.
LIMITATION ON CLAIMS
Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the CarbonWorks Products or services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
The parties disclaim application of the United Nations Convention on Contracts for the International Sale of Goods.
These Terms, whether interpreted in a court of law or in arbitration, shall be governed by the laws of the State of Delaware, and without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and CarbonWorks agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within the state of Delaware for the purpose of litigating all such claims or disputes.
You may not assign or transfer these Terms, or any order accepted by CarbonWorks hereunder, in whole or in part, by operation of law or otherwise, without CarbonWorks’express prior written consent. Any attempt to do so, without CarbonWorks’consent, will be null and of no effect. CarbonWorks may freely assign these Terms.
CarbonWorks will not be responsible for any failure or delay in its performance under these Terms due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or acts of God.
The failure by CarbonWorks to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
These Terms constitute the complete and exclusive agreement between CarbonWorks and you regarding its subject matter and supersedes all prior or contemporaneous quotations, agreements, communications or understandings, whether written or oral, relating to its subject matter. Any waiver, modification or amendment of any provision of these Terms will be effective only if in writing and signed by duly authorized representatives of each party.
You will not export or re-export, directly or indirectly, the Products, or any technical information related thereto, or any direct products thereof, to any destination or person prohibited or restricted by the export control laws and regulations of the United States, without the prior authorization from the appropriate governmental authorities.
All notices required or permitted to be given under these Terms will be in writing and will be deemed given: (i) upon actual delivery, if made by personal service; (ii) three (3) days after mailing, if made by U.S. certified or registered mail; and (iii) one (1) business day after delivery to the courier or overnight delivery service, if made by courier or overnight delivery service. All notices will be addressed to such address as the party who is to receive the notice so designates by written notice to the other.
CarbonWorks, Inc. 2018.