1.1 THESE TERMS OF SALE ("TERMS") CONSITUTE A BINDING LEGAL CONTRACT
BETWEEN (A) US, AFTER, INC. WITH OFFICES AT 70 W. 40TH ST., NEW YORK, NY
10018, USA, THE SELLER (WITH REFERENCES TO "US", "WE", OR "OUR" BEING
CONSTRUED ACCORDINGLY), AND (B) YOU, THE PURCHASER (WITH
REFERENCES TO "YOU" OR "YOUR" BEING CONSTRUED ACCORDINGLY).
THESE TERMS APPLY TO ALL OFFERS, SALES AND PURCHASES OF SOFTWARE, LICENSE RIGHTS, AND SERVICE USE RIGHTS SOLD BY US, OR ACCESS RIGHTS TO SOFTWARE OR SERVICES WE PROVIDE ("PRODUCTS"), WHICH OCCUR THROUGH THE ONLINE STORE ON WHICH WE POST THESE TERMS. BY ORDERING ANY PRODUCTS THROUGH THIS WEBSITE OR BY VISITING THIS ONLINE STORE, YOU SIGNIFY YOUR ACCEPTANCE OF THIS AGREEMENT.
1.2 We value our relationship with you and consider our approach to privacy of the information you provide in your use of this website to be an important aspect of that relationship. Our Privacy Statement governs the collection and use of information through this website. By submitting your personally identifiable information to us in relation to your order, you consent to such information being processed to fulfill your order and in accordance with our Privacy Statement. The Privacy Statement is incorporated by reference into and is made a part of this Agreement. To view the Privacy Statement applicable to our collection and use of information through this website, please click here.
1.3 ALL ORDERS ARE SUBJECT TO YOUR CONSENT TO ANY APPLICABLE LICENSE AGREEMENT OR USAGE TERMS DELIVERED WITH, INCLUDED IN, OR PRESENTED IN CONNECTION WITH YOUR PRODUCTS. If you do not agree to the license or usage terms once you see them, do not accept them and contact customer service.
1.4 You are bound by the version of these Terms in effect on the date of each order you place through this website. These Terms may change from time to time, so please review them upon submission of each order, even if you have reviewed them before.
1.5 ALL ACCEPTED ORDERS ARE FINAL, NON-CANCELABLE AND NON-REFUNDABLE, EXCEPT AS SPECIFIED IN THE RETURNS POLICY APPLICABLE TO YOUR PURCHASE.
2.1 We attempt to describe the Products available for purchase through this website as accurately as possible. However, we do not warrant that the prices, quotations, anticipated delivery dates, and descriptions made or referred to on this website or any related websites are accurate, complete, reliable, current, or error-free. The prices, quotations and descriptions made on this website are subject to availability, do not constitute an offer and may be withdrawn or revised at any time prior to our express Acceptance of your order (as described below).
2.2 While we make every effort to ensure that items appearing on this website are available, we cannot guarantee that all items are immediately available when you submit your order. We may reject your order (without liability) if we are unable to process or fulfill it. If this is the case, we will refund any prior payment that you have made for that item.
2.3 An order submitted by you only constitutes an offer by you to us to purchase Products subject to these Terms at the price and on the terms stated in the order, and is subject to our subsequent Acceptance (as defined below), irrespective of whether the button or link you press or activate to submit your order to us includes words such as "complete order" or otherwise indicates that it is the final step in completion of your order. Any order confirmation email received by you prior to our Acceptance shall constitute an acknowledgement of our receipt of your offer only, and not an acceptance of your offer.
2.4 You acknowledge and agree that if you are placing an order through a website, by clicking or activating the button or hyperlink to submit your order, you are placing a legally binding offer. You consent to: (i) the use of electronic communications in order to enter into contracts and place orders with us; and (ii) the electronic delivery of notices, policies and records of transactions initiated or completed by you online. You have the right to withdraw your consent to electronic contracting and to electronic delivery, but if you do, we may cancel your order and/or your access to the Products. If you do not consent to receive any notices electronically, you must stop using this website.
2.5 Our acceptance of your order only occurs at such time that we have both (a) provided you with access to Products, and (b) received payment of the purchase price of your order through settlement of funds via your provided credit card or other payment method ("Acceptance"). We may cancel your order at any time and for any lawful reason prior to Acceptance.
2.6 We may keep records of orders received, acknowledgements, acceptances and other contract records after Acceptance for a period not to exceed the maximum period permitted by law. We may be able to provide you with copies on written request; however you must make sure you print a copy of all such documents and these Terms for your own records.
2.7 If we have cause to believe that you are unable to pay your debts as they fall due, you fail to pay any amount by the due date or breach any of these Terms, we believe you have engaged in fraud or criminal activity in connection with your use of this website, or we are unable to process payment to the payment method you provided with your offer, then, without prejudice to any of our other rights, we may do any or all of the following: (a) stop or suspend provision of Products; and/or (b) cancel any and all other contracts between us and you.
3.1 Prices do not include sales taxes, if applicable, which will be added to your total price. If the price of a Product is obviously incorrect, regardless of whether it is an error in a price posted on this website or otherwise communicated to you, then we reserve the right, at our sole discretion, to cancel your order and refund to you the amount that you paid, regardless of how the error occurred.
3.2 Prices payable for Products are those in effect at the time of Acceptance, unless otherwise expressly agreed. Prices may be indicated on this website or an order acknowledgement but the authoritative price in the event of any discrepancy, is the price that is notified to you on our Acceptance through the charge placed through your selected payment method. Payment shall be made by the payment method selected during your order completion process through this website. We reserve the right to verify and/or authorize credit or debit card payments prior to Acceptance.
3.3 If you elect to use the services of a third party payment or billing provider in connection with your purchase from us, your use of such services will be subject to the third party provider's own terms and conditions. You may be required to create an account with such third party provider and/or provide that third party provider with your bank account or credit/debit card details. We are not responsible for, and you agree to hold us harmless from and against any liability resulting from, the acts or omissions of any third party payment or billing provider.
4.1 We will use all commercially reasonable efforts to deliver Products in a timely manner. For Products delivered electronically, we will deliver such Products by electronic transmission or via download. Delivery timescales/dates specified on this website, in any order acknowledgement or elsewhere are estimates only.
4.2 The places that we deliver to are limited to certain Territories which may be changed from time to time. Delivery shall be to a valid email address within one of the Territories submitted by you and subject to Acceptance ("Delivery Address").
4.3 Save as otherwise provided in these Terms, risk of loss of or damage to the Products passes to you for Products delivered digitally, upon the provision to you of a download link for Software, or of a license key or Service Use Rights, via email or other electronic delivery method
Except as set out above or under any applicable returns policy presented on this website and applicable to your purchase of a Product ("Returns Policy") and subject to any rights you have under applicable law that cannot be excluded or limited by these Terms:
5.1 You may return the Product within the first 14 days from the date of purchase, except that we will not accept a return or process a refund if the Product has already been active and used by you, subject to the terms of Section 5.4. We shall not be liable and you shall not be entitled to reject Product after 14 days have passed since the date of purchase of the Product.
5.2 We shall not be liable for any damage or losses arising from defective installation of the Products; from the use of the Products in connection with other defective, unsuitable or defectively installed equipment; your negligence; improper use; or use in any manner inconsistent with the Products' specifications or instructions.
5.3 If you refuse or fail to take delivery of Products, any risk of loss or damage to the Products shall nonetheless pass to you, and without prejudice to any other rights or remedies we have, we shall remain entitled to payment in full for the Products delivered
5.4 Where there is a failure to deliver, or any defect in or damage to a Product, we may at our option:
(a) in the case of failure to perform or defective performance of a Product, make good such failure or defective performance; and/or
(b) in the case of damage or any defect(s) in the Product and in accordance with any applicable Returns Policy, refund the price paid in respect of any Products found to be damaged or defective.
However, your rights of repair or replacement of any Products which are found to be defective will (except where agreed otherwise) be negated or rendered void where defects are due (wholly or partially) to mistreatment, improper use or installation, or failure to observe any of the Products' instructions or other directions issued or made available by us in connection with the delivered Products. We reserve the right to deny your return, refund, or replacement if the Products have already been active and used by you.
6.1 Where any Product supplied is or includes software ("Software"), this Software (a) is licensed to you (and not sold to you) by us subject to the license agreement or terms included with such Software or presented during your checkout process or software installation process ("License Terms"). In addition:
6.1.1 Such Software may not be copied, adapted, translated, made available, distributed, varied, modified, disassembled, decompiled, reverse engineered or combined with any other software, save to the extent that (i) this is permitted in the License Terms, or (ii) applicable law expressly mandates such a right which cannot legally be excluded by contract.
6.1.2 Save to the extent provided for in any applicable License Terms, your rights of return and/or to a refund under these Terms and any applicable Returns Policy do not apply in the event that you open the Software shrink-wrap and/or break the license seal and/or use the Software.
6.1.3 Except to the extent expressly provided by us in writing or under relevant License Terms, Software is provided 'as is' without any warranties, terms or conditions as to quality, fitness for purpose, performance or correspondence with description and we do not offer any warranties or guarantees in relation to Software installation, configuration or error/defect correction. You are advised to refer to any License Terms with regards to determining your rights against a manufacturer, licensor or supplier of the Software.
7.1 TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE PRODUCTS THAT YOU PURCHASE FROM US ARE PROVIDED TO YOU "AS IS," AND YOUR USE IS AT YOUR OWN RISK. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. UNLESS AGREED OTHERWISE OR REQUIRED BY APPLICABLE LAW, ANY WARRANTIES PROVIDED IN RELATION TO PRODUCTS ONLY EXTEND TO YOU ON THE UNDERSTANDING THAT YOU ARE A USER AND NOT A RESELLER OF THOSE PRODUCTS.
7.2 WE HAVE PRICED PRODUCTS AVAILABLE FOR PURCHASE FROM US UPON THE UNDERSTANDING, AND YOU HEREBY ACKNOWLEDGE THE UNDERSTANDING, THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND WHETHER OR NOT THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE: (a) OUR AGGREGATE LIABILITY (WHETHER FOR BREACH OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY) SHALL IN NO CIRCUMSTANCES EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICABLE PRODUCTS WHICH GIVE RISE TO SUCH LIABILITY; AND (b) NEITHER WE NOR OUR SUPPLIERS OR LICENSORS SHALL BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERIVCES, OR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY DESCRIPTION (INCLUDING WITHOUT LIMITATION LOSS OR INTERRUPTION OF BUSNIESS) IN CONNECTION WITH YOUR USE OF THIS SITE OR YOUR PURCHASE OR USE OF ANY PRODUCT, HOWEVER CAUSED AND WHETHER BASED ON CONTRACT, NEGLIGENCE, TORT, WARRANTY, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WE WERE AWARE OR ADVSED OF THE POSSIBILITY OF DAMAGES, AND IRRESPECTIVE OF THE NUMBER OR NATURE OF CLAIMS.
7.3 NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED IN THESE TERMS LIMIT OUR LIABILITY TO YOU FOR ANY LIABILITY TO THE EXTENT SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF APPLICABLE LAW.
7.4 You agree to defend, indemnify and hold harmless us, our subsidiaries, our affiliates, our agents, and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys' fees, arising out of or related to (a) any Products purchased by you in connection with your use of this website, or (b) the violation of Section 8 of these Terms by you, your employees, consultants, agents, distributors, or customers.
7.5 To the fullest extent permitted by law and save where expressly set out in any License Terms or elsewhere, we shall have no liability to you in the event of the Products infringing or being alleged to infringe the proprietary rights of any third party.
8.1 Each Product and any related items (including software, technology and technical information) sold, exported, transferred, supplied or licensed by us may be subject to and governed by the laws of the United States and other countries, including but not limited to the US Export Administration Regulations (EAR) and US Foreign Assets Control Regulations (FACR). You are required to comply with all applicable laws relating to the export, re-export, transfer, use, or import of any Product or related items. Diversion contrary to applicable law is prohibited. Notwithstanding any other request or agreement to the contrary, neither you nor we shall take or be required to take any action prohibited or penalized under US or applicable foreign law.
8.2 Further, under U.S. law, such goods may not be sold, leased or otherwise transferred to restricted countries, or used by a restricted end-user or an end-user engaged in activities related to weapons of mass destruction including, without limitation, activities related to designing, developing, producing or using nuclear weapons, materials, or facilities, missiles or supporting missile projects, or chemical or biological weapons. You warrant you are not a restricted end-user or involved in any of the restricted activities described above, and that you will comply with and abide by these laws and regulations.
9.1 Any notice or other communications in relation to these Terms may be given by sending the same by hand delivery, pre-paid post, fax or e-mail (a) with respect to notices and communications to you, to the email address and contact information you provided in connection with your purchase of Products; and (b) with respect to notices and communications to us, to the address listed at the beginning of these Terms or as otherwise specified in your order confirmation email or notification of Acceptance. These will also be the addresses for service of legal proceedings in the manner prescribed by law. Except as set out above in relation to cancellation of consumer orders, such notices or communications (where properly addressed) shall be considered received:
9.1.1 In relation to hand delivery, on the date of delivery at the relevant address (or, if this is not a working date, the first working date thereafter);
9.1.2 If posted, 5 working days after the date of posting;
9.1.3 If by fax, on the date of the transmission as evidenced by a successful transmission contact report (or, if this is not a working date, the first working date thereafter).
9.1.4 If sent by email, on the earliest of (i) the email being acknowledged by the recipient as received; (ii) receipt by the sender of an automated message indicating successful delivery or the email having been opened; or (iii) the expiry of 48 hours after transmission, provided that the sender has not received notification of unsuccessful transmission.
10.1 We will make every reasonable effort to resolve any disagreements that you have with us. In the event that we cannot resolve a disagreement to your satisfaction (or if we cannot informally resolve a concern we may have with you after attempting to do so informally), then you and we agree that except as expressly provided in Section 10.2 below, any claim, dispute, or controversy you may have against us arising out of, relating to, or connected in any way with these Terms, this website, or the purchase or attempt to purchase of any Products through this website shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association ("AAA") and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by the AAA, including the AAA's Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this agreement to arbitrate in this Section 10 ("Rules and Procedures"). The AAA's rules, and a form for initiating arbitration proceedings, are available on the AAA's site at http://www.adr.org. The language of any dispute resolution procedure or any proceedings will be English.
10.2 This Section 10 applies to all consumers to the fullest extent allowable by law. The disputes governed by these procedures in this Section 10 include without limitation (a) claims arising out of or relating to any aspect of the relationship between you and us; (b) claims that arose out of your use of this website; and (c) claims currently the subject of a purported class action litigation in which you are not a member of a certified class. However, the dispute resolution procedure specifically does not apply to (i) a claim relating to the enforcement or validity of your or our intellectual property rights; (ii) a claim relating to an allegation of theft, piracy, or unauthorized use; or (iii) claims for which class action litigation can be brought.
10.3 YOU AND WE BOTH AGREE THAT (A) EACH OF US CAN ONLY BRING CLAIMS AGAINST THE OTHER ON AN INDIVIDUAL BASIS AND THERE SHALL BE NO AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS OR REPRESENTATIVE BASIS; (B) ARBITRATION CAN DECIDE ONLY YOUR AND/OR OUR INDIVIDUAL CLAIMS, AND THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S); AND (C) THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.
10.4 If the value of the relief sought is $10,000 or less, either you or we may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and us (subject to the arbitrator's discretion to require an in-person hearing based on the circumstances). Attendance at an in-person hearing may be made by telephone by you and/or us, unless the arbitrator requires otherwise. Any in-person arbitration shall be held at a location determined by the AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for you), or at such other location as may be mutually agreed upon by you and us.
10.5 You agree further that: (a) the arbitrator shall apply New York, USA law consistent with the Federal Arbitration Act and applicable statutes of limitations, including principles of equity, and shall honor claims of privilege recognized at law; (b) the arbitrator shall not be bound by rulings in prior arbitrations involving us, but is bound by rulings in prior arbitrations involving both you and us to the extent required by applicable law; (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.
10.6 With the exception of Section 10.3 above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by the AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, Section 10.3 above is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor we shall be entitled to arbitrate their dispute.
Any dispute arising out of or related to these Terms shall be governed by the internal laws of the State of New York, USA, without regard to or application of its choice of law rules or conflictsof-laws principles, except that the Arbitration provision of these Terms shall be governed by the Federal Arbitration Act. In the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in New York County, New York, USA, and both you and us agree to submit to the personal jurisdiction of the courts located within New York County, New York, USA for the purpose of litigating all such claims or disputes. The parties specifically exclude from application to the Terms of Service the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
These Terms sets forth the entire understanding between you and us with respect to your use of this website and your purchase of Products from us, and supersedes any and all prior or contemporaneous communications, agreements, and representations, whether written or oral, related thereto. No amendment to these Terms will be valid unless made in writing and signed by you and us. These Terms prevail over any other terms or conditions contained in or referred to elsewhere or implied by trade, custom or course of dealing. Any purported terms or conditions to the contrary are hereby excluded to the fullest extent legally permitted. We may engage the services of subcontractors or agents to assist us in the performance of our obligations related to these Terms. You may not assign or transfer your rights under these Terms, and any purported assignment or transfer shall be void. No relaxation, forbearance, delay or indulgence by either you or us in enforcing any of these Terms or the granting of time by either party to the other shall prejudice or restrict such rights and powers. No waiver of any term or condition of these Terms shall be effective unless made in writing and signed by us. The waiver of any breach of any Term shall not be construed as a waiver of any subsequent breach or condition. If for any reason we determine or a court of competent jurisdiction finds that any provision or portion of these Terms to be illegal, unenforceable, or invalid under applicable law in a particular jurisdiction: (a) these Terms will not be affected in other jurisdictions to the extent that such determination or finding has no application; and (b) in the relevant jurisdiction, the remainder of these Terms (to the fullest extent permitted by law) will continue in full force and effect. Neither you nor we shall be in breach of these Terms in the event that party is unable to perform its obligations as a result of any reason or condition beyond its reasonable control.