This section sets forth the Purchase Terms and Conditions of sale of CONTÉGO Spa Designs, Inc. (“Contego”, “we”, “us” or “our”). We manufacture, sell and service Pedicure Spa Massage Chairs and accessories (“products”) displayed at www.contegospa.com(our “website”). By completing a purchase with us you, our customer ("you", "your" or "Customer"), agree to these Purchase Terms and Conditions and to be bound by them. These Purchase Terms and Conditions include the terms of all documents and terms referenced herein (collectively, this “Agreement”) and govern all purchases and transactions you make with us. No terms of any document or form furnished by you shall alter, supplement or contradict any of the terms of this Agreement.
The only warranties provided by Contego are expressly set forth in the Limited Warranty (displayed at www.contegospa.com/limitedwarranty and incorporated herein) in effect on the date of purchase, which you acknowledge you have reviewed. We disclaim all conditions, warranties, and guarantees that are not expressly set forth therein and any implied conditions, warranties, and/or guarantees, including, absent limitation, implies warranties of merchantability and fitness for a particular use. Except as provided in our Limited Warranty, all products are sold “as is.” Customer is responsible for proper maintenance of purchased products; see “maintenance” section of our user manual accessible on our Website. Please note: the Contego Jet-Liner is a one-time-use product. It must be disposed of immediately after use to ensure prevention of contamination or infection.
We carry the products displayed on our website. In some cases, however, products on our website may be out of stock or on back order or may be discontinued without notice. All items shown on our website are only available from us.
Every effort has been made to ensure the accuracy of prices, item numbers, availability, and dimensions; however, we cannot be responsible for typographical errors. We reserve the right to revoke any stated offer and to correct any errors, inaccuracies, or omissions even after an order has been submitted or the order has been confirmed and your credit card charged or payment is made by any other method.
Some of our products have been photographed with other items. Those items are not included with product purchase.
All prices and services featured on our website are quoted in U.S. dollars, are valid and effective only in the continental U.S.
The total order amount, including sales tax and shipping and delivery charges, must be made in full prior to shipment, and fifty percent (50%) of said amount (the "Deposit") must be made at the time the order is placed. Purchases made with a credit card are subject to a 3% surcharge.
SHIPPING COSTS/STORAGE FEES
We ship all products FOB shipping point. Customer is responsible for shipping costs, as well as for damages incurred during shipment. If any ordered product is not available to ship by the estimated shipping date stated on your initial product order (“Original Shipping Date”), we may extend the Original Shipping Date to ninety (90) days from the date we notify you such product is available to ship (the “Extended Shipping Date”); it being understood and agreed that we may charge storage fees if you request shipment to occur after the Extended Shipping Date. Customer may not request shipment to occur more than six (6) months after the Extended Shipping Date (the “Maximum Deferral Date”). Customer must pay all storage fees due (if any) prior to shipment.
FAILURE TO TAKE DELIVERY BEFORE MAXIMUM DEFERRAL DATE
Customer acknowledges that its obligation to take shipment of product on or before the Maximum Deferral Date is a material term of this Agreement. Customer agrees with us that if Customer does not take shipment of product on or before the Maximum Deferral Date, our damages would be material, uncertain and not readily ascertainable. Accordingly, Contego and Customer agree that if Customer does not take shipment of product on or before the Maximum Deferral Date, then we may keep the amount of the Deposit as and for liquidated damages (the "Liquidated Damages"). Customer agrees that the Liquidated Damages are reasonable in proportion to the probable damages likely to be sustained by Contego if Customer does not take shipment of its product on or before the Maximum Deferral Date, that the amount of actual damages Contego may sustain in such event is incapable of precise estimation, and that retention of the Deposit as Liquidated Damages is not intended to constitute a penalty for any purposes.
Promptly upon its receipt of a shipment of products, Customer shall examine the shipment to determine whether any item or items included in the shipment are in short supply, defective or damaged. Within 48 hours of receipt of the shipment, Customer shall notify Contego in writing of any shortages, defects or damage, which Customer claims existed at the time of delivery. Within 30 days after the receipt of such notice, Contego will investigate the claim of shortages, defects or damage, inform Customer of its findings, and deliver to Customer products to replace any which Contego determines, were in short supply, defective or damaged at the time of delivery. Unless notice is given as provided in this paragraph, Customer shall be deemed to have accepted such products and to have waived all claims for shortages, defect or damage.
PEDICURE SPA CHAIR DELIVERY AND HOOK-UP SERVICE
If you purchase our pedicure spa chair(s), and we deliver them, we will connect them to water and electricity inside your salon pursuant to the terms and conditions stated in our Deliver and Hook-Up Service (displayed at www.contegospa.com/deliveryandhook-upservice and incorporated herein). However, if we ship your pedicure spa chair(s) using a freight company, you are responsible to connect them to water and electricity inside your salon according to the terms of our Shipping Terms (displayed at www.contegospa.com/shippingterms and incorporated herein), which you hereby agree to prior to shipment.
We cannot accept order cancellations on any items after order placement.
We do not accept returns. We do not accept refunds.
CONTENT TO USE
CHANGES TO PURCHASE TERMS AND CONDITIONS
We may update or modify these Purchase Terms and Conditions at any time and without prior notice. For this reason, you should review our Purchase Terms and Conditions each time you purchase products from us.
TRADEMARKS and COPYRIGHTS
Certain names and marks are proprietary and are owned by Contego Spa Designs, Inc. “Contego” is a registered trademark of Contego Spa Designs, Inc. This website and all its contents are protected under copyright by Contego Spa Designs, Inc. with all rights reserved.
STATE OF CALIFORNIA PROPOSITION 65 WARNING
Products may contain one or more chemicals known to the State of California to cause cancer or reproductive harm.
INCORPORATION BY REFERENCE
Each of our policies referenced herein is incorporated herein by reference and may be added to, amended, changed, revised, and/or modified by Contego, from time to time, at our sole and absolute discretion, and we will provide notice of such changes if and as required by law.
CONSENT TO COMMUNICATIONS FROM CONTEGO
By purchasing any of our products, you agree we may use your contact information (including your name, mailing address, email address and telephone number) to receive electronic and print marketing and promotional materials and other communications from us, including by means of social media (“Communications”).
To the extent that the laws of any applicable jurisdiction limit or prohibit our ability to send Communications to you without additional steps having been taken, the foregoing shall not be deemed to apply to you until such additional legally required steps have been taken.
MARKETING AND EMAIL SERVICES
OBTAINING A PRINTED COPY
You may obtain a printed copy of the current Purchase Terms and Conditions by sending an email to firstname.lastname@example.org and requesting a copy to be sent to you by mail and providing your Contact Information in the email. Alternatively, if you would like an emailed copy of these Purchase Terms and Conditions, please provide your name and the email address to which you would like for the Purchase Terms and Conditions to be sent.
THE UNITED STATES ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT
You acknowledge and agree that your consent to these Purchase Terms and Conditions, and all other representations, acknowledgements, and agreements stated herein, are subject to and shall be deemed to be in compliance with the U.S. Electronic Signatures in Global and National Commerce Act (the “Act“). You and Contego each intend for the Act to apply to the fullest extent possible to validate Contego’s ability to conduct business with, communicate with, and send offers, and promotional materials, and other information and content permitted by these Purchase Terms and Conditions to you by electronic means and otherwise, and you grant consent for all such electronic transmissions.
LIMITATIONS OF LIABILITY
To the fullest extent permitted under applicable law, IN NO EVENT SHALL CONTEGO SPA DESIGNS, INC. BE LIABLE TO CUSTOMER, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS, OR LOST DATA), WHETHER OR NOT FORESEEABLE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In addition, you agree that the maximum collective liability of Contego for all claims, causes of action, losses, or damages, however arising and by way of whatever type of proceeding, shall be no greater than one hundred dollars ($100). Except as is otherwise prohibited by applicable law, the limitations set forth herein shall apply to any theory of legal liability, including, among all others, breach or repudiation of contract, violation of statute, violation of common law, tort, negligence, gross negligence, recklessness, intentional misconduct, strict liability, or any other claim or damage for any type of civil liability, or based upon any other legal theory and irrespective of whether damages, actual or otherwise, are deemed to exist.
To the fullest extent permitted under applicable law, by purchasing one or more products from Contego and agreeing to these terms and conditions, you voluntarily agree that you have relinquished your right to seek damages from Contego as and to the extent stated herein and that the agreement to accept such limitations reflects a reasonable allocation of risk.
The provisions of the foregoing paragraphs that impose a damages limitation of one hundred dollars ($100) or otherwise prohibit damages to be multiplied or increased, do not apply in those states, including without limitation to consumers within the state of New Jersey or other states of the United States which do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental, consequential, or another type of damages.
Please read this section carefully, as these provisions provide for the resolution of disputes through the use of binding arbitration on an individual basis, and also include certain waivers, including waivers of all class actions, class arbitrations, jury trials, and the right to proceed in court (other than arbitration).
You and Contego agree that any dispute or claim relating to any transaction or interaction with Contego (including, but not limited to every purchase), these Purchase Terms and Conditions, and/or any other aspect or issue concerning the relationship and transactions between you and Contego, whether pertaining to contract, tort, statute, common law, fraud, misrepresentation, civil liability or any other legal theory (each, a "Dispute") will be resolved in accordance with the provisions in this Legal Disputes section and any other applicable Purchase Terms and Conditions.
Subject to applicable law, these Purchase Terms and Conditions and any Dispute arising from or in connection thereto shall be governed by the laws of the United States, including the Federal Arbitration Act, and the laws of the State of California, without regard to principles of conflicts of law. To the extent prohibited by applicable law, non-U.S. citizens agree to an alternative procedure for dispute resolution if the arbitrator rules that arbitration is prohibited by law.
Except for disputes that qualify for small claims courts, all disputes arising out of or related to these Purchase Terms and Conditions or any aspect of the relationship between you and Contego, whether based in contract, tort, statute fraud, misrepresentation or any other legal theory, will be resolved through final and binding arbitration as follows, and you agree that Contego and you are each voluntarily surrendering and waiving the right to trial by a judge or a jury. You agree that any arbitration under these terms and conditions will take place on an individual basis. Class arbitration and class actions are not permitted and you are expressly agreeing to give up the ability to participate in a class action.
Any Disputes shall be submitted to binding arbitration with the Judicial Arbitration & Mediation Service, Inc., at its Orange County, California office. The terms and procedures for such arbitration shall be as follows. If we are unable to agree on a single retired judge from the JAMS panel, JAMS will provide a list of three available judges and each Party may strike one. The remaining judge will serve as the arbitrator. Arbitration must be initiated within one (1) year after the claimed breach occurred. Failure to initiate arbitration within that period constitutes an absolute bar to the institution of any new proceedings. Arbitration is initiated by sending written notice of an intention to arbitrate by registered or certified mail to all Parties and to JAMS. The notice must contain a description of the dispute, the amount involved, and the remedy sought. The arbitrator shall determine the rights, rules and procedures for the Parties to follow. Both Parties shall have the right to confirm, correct or vacate the arbitration award, pursuant to California Code of Civil Procedure, Sections 1285, et seq. The sole and exclusive venue to confirm, correct or vacate the arbitration award shall be the Superior Court of California for the County of Orange, Central Justice Center, located at 700 Civic Center Drive West, Santa Ana, California 92702.
To the extent you prevail on the Dispute(s) that are subject to the arbitration, we agree to pay up to, and you agree that you will not seek recovery from us of more than, the total sum of $5,000 for attorney's fees, costs, and expenses associated with the Dispute and the arbitration thereof; provided, however, that in the event you prevail, we also agree that we will pay the costs of the arbitrator's fees and the other costs associated with the arbitration itself. Likewise, even if we prevail, we will not seek attorneys' fees, costs, and expenses associated with the Dispute exceeding $5,000. You agree that if the amount involved in the Dispute is less than $10,000, the arbitration will be conducted, at your election, by telephone, based on written submissions, or in person in a mutually agreed location.
The arbitrator's decision, which shall be consistent with these Purchase Terms and Conditions, will be final and binding. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief and/or relief providing for specific performance of these Purchase Terms and Conditions, but only to the extent necessary to provide relief warranted by individual claims before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced by any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Purchase Terms and Conditions will preclude you from bringing issues to the attention of federal, state, territorial, provincial, or local governments or agencies and, if and to the extent applicable law permits, such entities having jurisdiction may seek relief.
This Agreement contains the entire agreement and understanding by and between you and Contego with respect to the subject matter hereof, and no representations, promises, agreements or understandings, written or oral, not herein contained shall be of any force or effect. No change or modification hereof shall be valid or binding unless the same is in writing and signed by the party intended to be bound. This Agreement shall be binding upon, and shall inure to the benefit of, Contego and you, and their respective successors and/or assigns. However, you may not assign this agreement or any duties hereunder without the prior express written authorization of Contego. The provisions of this Agreement shall be deemed severable, and the invalidity or unenforceability of any one or more of the provisions hereof shall not affect the validity and enforceability of the other provisions hereof. The headings and other captions in this Agreement are for convenience and reference only and shall not be used in interpreting, construing or enforcing any of the provisions of this Agreement. Neither party shall be liable for the failure to perform its obligations under this Agreement due to events beyond such party’s reasonable control including, but not limited to, strikes, riots, wars, fire, acts of God, or acts in compliance with any applicable law, regulation, or order (whether valid or invalid) of any court or governmental body. No waiver of any provision of this Agreement shall be valid unless the same is in writing and signed by the party against whom such waiver is sought to be enforced; moreover, no valid waiver of any provision of this Agreement at any time shall be deemed a waiver of any other provision of this Agreement at such time or shall be deemed a valid waiver of such provision at any other time.