Terms & Conditions

THE INFORMATION CONTAINED HEREIN SETS FORTH YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE TRANSACTION(S) CONTEMPLATED FOR HEREBY. THESE TERMS REQUIRE THE USE OF ARBITRATION (ON AN INDIVIDUAL BASIS ONLY; I.E., CASE CONSOLIDATIONS AND CLASS-ACTIONS ARE NOT PERMITTED) IN ORDER TO RESOLVE DISPUTES. PLEASE REVIEW THIS DOCUMENT IN ITS ENTIRETY BEFORE ENTERING INTO ANY TRANSACTION HEREUNDER IN ORDER TO CONFIRM YOUR ACCEPTANCE HEREOF. YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM OUR WEBSITE, BY TELEPHONE, EMAIL OR OTHERWISE UNLESS YOU: (A) AGREE TO THESE TERMS AND CONDITIONS IN THEIR ENTIRETY; (B) ARE AT LEAST 18 YEARS OLD; AND (C) ARE NOT PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S CONTENTS, GOODS, OR SERVICES BY ANY APPLICABLE LAW, RULE, OR REGULATION.

(a) These terms and conditions (these "Terms") shall apply to your purchase of products and related services through [https://operabeds.com/en-us] (the "Site"). These Terms are subject to change at any time without prior written notice by Opera Group, Inc. (referred to herein as either “Seller,” “we,” “us,” or “our”). The most recent version of these Terms shall be posted for your review at any time on the Site. Please review these Terms in their entirety prior to engaging in any transaction on the Site. Your continued use of the Site after any posting of updated Terms (which shall be dated as of their most recent update) shall constitute your acceptance of and agreement to any changes therein made. These Terms are the only terms which govern the sale of the goods (”Goods”) and services (”Services”) by Opera Group, Inc. to the buyer (”Buyer” or “You”)).

(b) An Order Acceptance issued by Seller (the “Sales Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings,
agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.

(c) Notwithstanding anything to the contrary contained in this Agreement, Seller may, from time to time change the Services without the consent of Buyer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Sales Confirmation.

(d)  Not included in this Agreement are (1) General Warnings/Cautions and Notices as well as,   (2) Safety, Cleaning, Care, Technical Specifications and Maintenance.  It is important that You promptly review each of these documents thoroughly and notify Seller of any questions or concerns You may have or of anything You don’t understand.

(e) Cooperation. Buyer acknowledges that the Goods and services contemplated by this Agreement are to be customized, delivered and installed in accordance with Buyer’s specific requirements and circumstances, if any, as indicated on Seller’s Order Confirmation.  As such, the parties shall cooperate with one another in all reasonable respects so as to accomplish the intents and objectives of this Agreement, taking due regard of the procedures and operations contemplated herein.  Upon written notice from either party to the other providing reasonable detail regarding a failure to cooperate, the party receiving such notice shall have 10 days within which to respond and, if possible, cure the lack of cooperation, failing which the party serving such notice shall have a right to terminate the Agreement and pursue all available remedies.

(a) Placement of orders. All orders must be made either by telephone or online via our website at www.operabeds.com/en-us. Production and fulfillment will not commence, nor will special material be purchased, until issuance by Seller of an Order Confirmation and payment in full by Buyer in accordance with Section 10.

(b) Any orders received by our website l, either with or without installation, must be made reflected in our Order Confirmation and contain the following:

a. Signature on purchase order

b. Opera Beds listed as vendor

c. Bill To and Ship To addresses

d. Telephone number for Bill To and Ship To

e. Fax number for Bill To and Ship To

f. E-mail address for Bill To and Ship To

g. If prior notice of delivery is required, then the customer must specify a contact person and telephone number

h. Any limitations on overall dimensions of products must be specifically referred to.

(c) You agree that your telephone or online order is an offer to buy, under these terms, all products and services listed in your order. All orders must be accepted by us or we will not be obligated to sell the products or services to You. We may choose not to accept any orders in our sole discretion. After having received your order, we will send you an Order Confirmation email 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 Opera Group, Inc. and You will not take place unless and until you have received your Order Confirmation email and order number (“Order Confirmation”). You have the option to cancel Your order at any time before we have sent Your Order Confirmation email by calling our Customer Service Department at +1 888 553 0605. If we are unable to accept your order, for any reason we will endeavour to inform you of this and will not charge you for the product.

(d) Product measurements. Product measurements appear only on Seller’s website and, unless stated otherwise in an
Order Confirmation, all measurements shall correspond to those published upon Seller’s website. PLEASE NOTE: ALL AREAS INTENDED TO RECEIVE INSTALLATION OF PRODUCTS MUST HAVE +/- 2 CENTIMETRE HORIZONTAL TOLERANCE FOR RECIEVING SELLER'S PRODUCT, AS PRODUCT SIZE CAN VARY UP TO 2CM.

(e) Changes to orders.

a. Your right to make changes. If you wish to make a change to the product you have ordered, please contact us.
We will advise You if the change is possible. If it is possible, we will advise You about any changes to the price of the product, the timing of supply, or any other matter which would be necessary as a result of your requested change and ask you to confirm whether you wish to proceed with the change.

b. Our right to make changes. Seller may make minor or non-material changes to the product to reflect changes in
relevant laws or regulatory requirements or to implement minor technical adjustments and improvements. If Seller makes material changes to the products, we will notify You and You may at your option either continue with the Agreement or cancel the Agreement and receive a refund for any products paid for but not received.

(a) The Goods will be delivered within a reasonable time after Seller’s issuance of the Order Confirmation. The estimated delivery date will be notified to you during the order process. Times and dates for delivery of Your order or performance of
Services are not of the essence in this Agreement and we shall not be liable for any delay in delivery of Products or Services. If the Products are ongoing services or provided on a subscription basis, we will supply the Products or Services to you until either the Services are completed or the subscription expires (if applicable) or upon termination of this Agreement in accordance with Section 13.

(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods at a date and time to be notified by Seller to you (“Delivery Time”) and to the location specified in the Order Confirmation (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods at the Delivery Time. Responsibility for off-loading at the destination shall depend upon whether Buyer has contracted for installation of Products by seller.:

a. Where Buyer has contracted for installation of Products by Seller, Seller shall be responsible for all loading costs and provide equipment and labor reasonably suited for Buyer’s receipt of the Goods at the Delivery Point.

b. Where Buyer has not contracted for installation by Seller of the Products, Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for Buyer’s receipt of the Goods at the Delivery Point. The products are sealed for health protection and hygiene puposes;

(c) For sale or shipment of multiple units or parts, Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.

(d) If for any reason Buyer fails to accept delivery of any of the Goods at the Delivery Time, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

(e) For deliveries that are cancelled or postponed by You after Goods have been shipped, You will be liable to us for the full delivery charge. If You were due to have the product installed, You will be liable for the full charge of both delivery and installation. Delivery and installation charges will be stated in Seller’s Order Confirmation to Buyer. If, despite our reasonable efforts, we are unable to contact You or re-arrange access to your property, we may end the contract and Section 13 will apply.

(f) Seller shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and any such dates shall be estimates only.

(g) With respect to the Services, Buyer shall (i) cooperate with Seller in all matters relating to the Services and provide such access to Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by Seller,
for the purposes of performing the Services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as Seller may request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.

(h) Reasons we may suspend the supply of products to you. We may have to suspend the supply of a product to:

i. deal with technical problems or make minor technical changes;

ii. update the product to reflect changes in relevant laws or regulatory requirements; or

iii. make changes to the product as requested by you or notified by us to you (see, e.g.,
section 3(h)).

(i) Your rights if we suspend the supply of products. We will contact you in advance to tell you we will be suspending supply of the product, unless the problem is urgent or an emergency. If we have to suspend the product, we will adjust the price so that you do not pay for products while they are suspended. You may contact us to end the contract for a product if we suspend it, or tell you we are going to suspend it, in each case for a period of more than 90 days and we will refund any sums you have paid in advance for the product in respect of the period after you end the contract.

(a) The quantity of any shipped Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.

(b) Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within two (2) days of the date when the Goods would in the ordinary course of events have been received.

(c) Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.

Seller shall make delivery in accordance with the terms on the face of the Sales Confirmation.

Where Buyer has contracted for purchase only of the Goods, and not installation, then title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. Where Buyer has contracted for both purchase and installation of the Goods, title passes to Buyer upon delivery of the Goods and risk of loss passes to Buyer upon completion of installation, provided that no danger circumstance on or about the installation area causes damage to the Goods.

(a) In the event that Seller extends credit to Buyer in connection with Buyer’s purchase of Goods hereunder, then as collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security
interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this
provision constitutes a purchase money security interest under the Uniform Commercial Code of the state of Buyer’s residence, the state of installation or, in the case of a business, the state of incorporation or formation of the Buyer.

If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.

(a) We may need certain information from You so that we can supply the products to You. If so, we will contact You to ask for this information. If you do not give us this information within a reasonable time of us asking for it, or if you give us incomplete or incorrect information, we may either end the contract (and Section 13 will apply) or make an additional charge of a reasonable sum to compensate us for any extra work that is required as a result. We will not be responsible for supplying the products late or not supplying any part of them if this is caused by you not giving us the information we need within a reasonable time of us asking for it.

(a) Buyer shall inspect the Goods within two (2) days of receipt (”Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as [reasonably] required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.

(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility located at at a location to be advised by Seller. If
Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.

(c) Buyer acknowledges and agrees that the remedies set forth in Section 8(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 8(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.

(a) Unless otherwise agreed in an Order Confirmation, Buyer shall purchase the Goods and Services from Seller at the price[s] (the “Price[s]”) set forth in Seller’s price list published on its website as of the date of Buyer’s Order. All prices shown are per unit unless otherwise noted. Prices do not include shipping, installation or sales and use taxes and any other applicable duties, levies and/or taxes, which the Buyer will pay in addition to the price. All pricing is subject to change at any time without prior notice and valid for thirty (30) days from date of issue.

(b) Buyer agrees to reimburse Seller for all reasonable travel and out-of-pocket expenses incurred by Seller in connection with Seller’s investigation of a claim by Buyer of non-conforming Goods as detailed in Section 8 of this Agreement, where
such claim is reasonably determined by Seller to be unsupported or unfounded.

(c) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personal or real property, or other assets.

(d) We accept payment using most debit and credit card types as well as wire transfers. If you choose to pay by credit card, please note a 2.5% convenience fee will be charged on all Credit card transactions (AMEX, Mastercard, Visa and Discover). We do not accept any payments made by check.

(a) When you must pay depends on what product you are buying:

a. For goods, you must pay for the products before we dispatch them and we may charge you for the products at any time after your order is accepted.

b. For services, you must pay for the services before we start providing them and we may charge you for the services at any time after your order is accepted.

(b) Buyer shall pay all invoiced amounts due to Seller in accordance with Seller’s invoice. Buyer shall make all payments hereunder in US dollars, in accordance with Section 9(d) (AMEX, Mastercard, Visa and Discover).

(c) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in
collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods or performance of any Services if Buyer fails to pay any amounts when due hereunder and such failure continues for 14 days following written notice thereof.

(d) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.

(a) Seller warrants to Buyer that for a period as stated on a warranty document to be provided to Buyer with the Goods (”Warranty Period”), that such Goods will materially conform to [the specifications set forth in Exhibit A/Seller’s published specifications in effect as of the date of [manufacture/shipment]] [[and] will be free from material defects in material and workmanship.

(b) Seller warrants to Buyer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.

(c) EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 10(a) AND (b), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

(d) Products manufacturer by a third part (“Third-Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 11(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHEATHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

(e) The Seller shall not be liable for a breach of the warranties set forth in Section 11(a) and Section 11(b) unless: (i) Buyer gives written notice of the defective Goods or Services, as the case may be, reasonably described, to Seller within two (2) days of the time when Buyer discovers or ought to have discovered the defect; (ii) if applicable, Seller is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 11(a) to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods or Services are defective.

(f) The Seller shall not be liable for a breach of the warranty set forth in Section 11(a) or Section 11(b) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; (iii) Buyer alters or repairs such Goods without the prior written consent of Seller; (iv) Buyer uses the Goods in combination with non-compatible third-party products; or, (v) the defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal working conditions.

(g) Subject to Section 11(d) and Section 11(e) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller in accordance with Seller’s reasonable instructions.

(h) Subject to Section 11(d) and Section 11(e) above, with respect to any Services subject to a claim under the warranty set forth in Section 11(b), Seller shall, in its sole discretion, (i) repair or re-perform the applicable Services or (ii) credit or refund the price of such Services at the pro rata contract rate.

(i) THE REMEDIES SET FORTH IN SECTION 11 SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTIONS 11(A) AND (B), RESPECTIVELY.

(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED 105% THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS AND SERVICES SOLD HEREUNDER.

(c) The limitation of liability set forth in Section 12(b) shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.

In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer:

(a) fails to pay any amount when due under this Agreement and such failure continues more than 7 days beyond the date for payment indicated on the applicable invoice;

(b) has not otherwise performed or complied with any of these Terms, in whole or in part, including but not limited to the following:

i. You do not, within a reasonable time of us asking for it, provide us with information that is necessary for us to provide the products;

ii. You do not, within a reasonable time, allow us to deliver the products to you or collect them from us; or,

iii. You do not, within a reasonable time, allow us access to your premises to supply the services; or,

iv. You take any step or action in connection with bankruptcy, administration, liquidation, winding up or any similar proceeding or your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the contract has been placed in jeopardy.

(c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.

Governing Law: These Terms shall be governed by the laws of the State of Delaware without regard to its conflict of laws principles.

Binding Arbitration: Subject to subsection (c) below and all applicable laws, you are agreeing to give up: (i) your right to litigate any claims that may arise hereunder in court or before a jury; and (ii) your right to consolidate any claim and/or participate in any class-action claim that may arise hereunder in any manner or forum. Instead, any claim, dispute, or controversy of any kind or nature arising hereunder which cannot be amicably resolved by us shall be solely and finally settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place before a panel of one arbitrator sitting in Delaware, Kent County. The language of the arbitration shall be English. The arbitrators will be bound to adjudicate all disputes in accordance with the laws of the State of Delaware. The decision of the arbitrator(s) shall be in writing with written findings of fact and shall be final and binding on the parties. We shall bear all of our own costs, as well as your reasonable outside attorneys’ fees, actually incurred in connection with any such arbitration proceedings; provided, however, that if we are the prevailing party, we shall be entitled to reimbursement for those amounts that were expended on your behalf. With respect to any arbitration hereunder, as stated above, you hereby expressly waive any right to consolidate any claim and/or participate in any class-action claim of any kind or nature. This Section 14 provides your sole recourse for the settlement of any disputes arising out of, in connection with, or related to these Terms. If any provision of this clause is found unenforceable, such unenforceable provision will be removed and the remaining terms will be enforced.

Small-Claims Option: Notwithstanding the foregoing, you may elect to pursue a breach of warranty claim in small-claims
court rather than submit to binding arbitration, but only if you provide us with written notice of your desire to do so within [90] days of your purchase transaction. Any small-claims court proceeding initiated hereunder will be limited solely to your individual dispute; i.e., you are not permitted to file, or participate in, a class action suit or consolidated claim in small -claims court with respect to these Terms.

No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller 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 either party’s 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, provided that, if the event in question continues for a continuous period in excess of 90 days, Buyer or Seller shall be entitled to give notice in writing to the other to terminate this Agreement.

Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.