1. Application of the Conditions
1.1. Scope. These general terms and conditions (the “Conditions”) apply to all purchases of products or services (the “Products”) sold in the United States of America (USA) through this web site (the “Site”), by us, the seller, Avanquest North America, Inc., headquartered at 7031 Koll Center Parkway, Suite 150, Pleasanton, CA 94566, California, USA - a wholly-owned subsidiary of Avanquest Software S.A., (references to “us, “we”, or “our” being construed accordingly) to you, the purchaser (references to “you” or “your” being construed accordingly).
1.2. ACCEPTANCE. BY PLACING AN ORDER ON THE SITE YOU AGREE TO ABIDE TO THESE CONDITIONS.
1.3. Legal Capacity. You represent that you have legal capacity to enter into a contract.
1.4. Change in Conditions. We may revise and modify the Conditions from time to time without prior notice. The Conditions that apply to your purchase are the one we publish on the Site at the time of your order and which at that time you can print or save on your computer.
2. Language of Contract
2.1. Different Language. The contract is concluded in English. Other versions are provided for your convenience but we are not bound by these translations.
2.2. Selection of Language. By selecting a language, you certify that you fully understand the Conditions and all other information displayed on the Site in the chosen language.
3. Products, Offer, Acknowledgment and Acceptance
3.1. Product Descriptions. Product descriptions are presented on the Site and can be consulted before your order. Photographs and pictures have no contractual value.
3.2. No Offer. Any prices, quotations and descriptions made or referred to on the Site do not constitute an offer by us but an invitation for you to offer. We may withdraw or revise them at any time prior to our express acceptance of your order.
3.3. Choice of Products. The choice of Products, after having studied their features, is made under your sole responsibility and liability according to your needs such as you previously determined them before any order. You are the only person having complete knowledge of equipment, software and configurations that you use and are thus sole judge of the compatibility of the Products ordered with those you use. When you confirm your order, you are deemed to have accepted the prices, volumes, quantities and features of the Products ordered.
3.4. Acknowledgement. Prior to our acceptance of your order, an automatic e-mail acknowledgement of your order is generated and sent to you. The purpose of this acknowledgement is to give you the chance to confirm your order details or to correct typographical errors. Please note that any such acknowledgement does not constitute a formal acceptance of your order.
3.5. Acceptance. An order submitted by you constitutes an offer by you to us to purchase Products under these Conditions. Your order is subject to our subsequent acceptance; therefore, the contract is formed at our acceptance of your order. Our acceptance take effect when we dispatch your order after its checking: availability and payment of the Products ordered.
3.6. Previous Dispute. We reserve the right to decline any order from a customer with whom there would be a dispute with respect to the payment of a previous order.
3.7. Errors. While we make every effort to ensure that the prices and Product descriptions indicated on our Site are accurate, we cannot guarantee the correctness of all information. We reserve the right to notify you of any error relating to a Product prior to dispatch of your order. In such event, we convey to you the correct information so you can either (a) confirm your order under the corrected terms or (b) cancel it. If you confirm your order, you acknowledge that the Product is provided in accordance with such corrected terms.
3.8. Availability. We make every effort to ensure that the Products appearing on our Site are available. However, we cannot guarantee that all Products are in inventory or in our providers’ inventories. If we are unable to process or fulfill your order, we may either (a) reject it (without liability), in this case we send you a rejection email and we refund any prior payment that you have made; (b) propose alternative Products; or (c) continue to try to source the Products from our suppliers for thirty (30) days after your order. If we cannot source the Products within this time, we cancel (without liability) your order and send you a cancellation email.
3.9. Pre-orders. You may pre-order new Products. Release dates are given subject to the information received from our suppliers and licensors. We are not responsible if the release is delayed, cancelled or the content or cover art of the pre-ordered Product changed. Where a new release is cancelled, we cancel your order (without liability), send you a cancellation email and immediately refund any prior payment that you have made.
3.10. Archives - Access. After validation of your order, we may keep, during a fair period, records of orders received, acknowledgements, acceptances and other contracts records. We may potentially be able to provide you with copies on written request. However, you shall print or save a copy of all such documents and these Conditions for your own records.
4. Price and Payment Terms
4.1. Prices. Prices of Products are exclusive of sales taxes or any of the appropriate purchase taxes and exclusive of shipping and carriage charges. Such taxes and charges are invoiced, if necessary, once you’ve specified the necessary information, in addition to the price of the Products bought.
4.2. Prices modification. We may modify the prices at any time and without notice. The prices payable for Products are those in effect at the time of our acceptance of your order.
4.3. Taxes. Appropriate taxes are added to the total amount of your order once you’ve specified the necessary information and before validation. In the event when other taxes or duties are liable to be due, such duties and sums would not come under our authority and will be taxable to you and under your full responsibility as regards both the statements and payments to the competent authorities and organizations.
4.4. Shipping and Carriage. If you elect to receive a tangible copy of your Product, we charge you additional cost for handling; shipping and carriage. You agree to pay for the shipping and carriage of Products as such costs are specified by us on the Site.
4.5. Currency. For your convenience and by default, all prices are published in US dollars on the US pages. However, you can choose to purchase our Products in various other currencies at the prices posted on the Site and subsequently be invoiced in the currency you’ve chosen.
4.6. Payment. You shall pay your order prior to delivery and by such methods as are indicated on the Site (and not by any other methods, unless we agree otherwise).
4.7. Security. On the Site, credit card transactions are secured and your credit card number is encrypted. We use the 128 bytes SSL encryption standard (Secure Socket Layer), currently the most reliable standard on the Internet.
4.8. Retention of Title. Title to Products shall not pass from us to you until payment has been made in full.
5. Delivery – Risk
5.1. Address of Delivery. We deliver Products only to an existing street address within the Territory (excluding PO Boxes). You must check the delivery address on any acknowledgment or acceptance we provide and notify us without delay of any error or omission. If you submit us an invalid delivery address, we reserve the right to charge you extra costs arising out from or in connection with any change you may make to the delivery address after submission of your order.
5.2. Timescales of Delivery. Delivery timescales or delivery dates we specify on the Site, in any order acknowledgment, acceptance or elsewhere are estimates only. Whilst we make every effort to meet such timescales or dates, we cannot be liable to you in respect of delay. Timescales we specify on the Site corresponds to the current average timescales. If we are not able to deliver the Products, we will refund your payments on request.
5.3. Risk of Loss. Risk of loss or damage to the Products pass to you on their delivery. If you refuse or fail to take delivery of Products provided in accordance with the Conditions, you are liable for any risk of loss or damage to the Products and without prejudice to any other rights or remedies, we are entitled to: (a) demand the immediate payment in full for the Products delivered and either (i) to effect delivery by whatever means we consider appropriate, or (ii) to store Products at Your risk; (b) demand all costs of Products storage and any additional costs we incur as a result of your refusal or failure to take delivery; or (c) thirty (30) days after the agreed date for delivery, we may dispose of the Products in such manner as we determine and may set off any proceeds of sale against any sums due from you.
6. Download and Back-Up6.1. Download Procedure. As soon as your payment is processed, you receive an e-mail providing a link that gives you the access to the download space. [Your Product will be available to download up to one month after purchase].
6.2. Backup CD Option. When you order your Product, you may order a "Backup CD". This option allows you to receive a custom CD of the Product you have download. This way, you can instantly start using the downloaded Product, but also have a backup copy if you ever have to re-install it on your PC.
6.3. Extended Download Period. You may subscribe to our “extended download period” option which means that your Product is available for you to download for up to 2 years after the purchase date.
7. Support7.1. Availability. The technical support for the Products vary according to the Products and the countries, as detailed in Product Description pages on the Sites. We may modify these conditions at any time and without notice. The applicable conditions are those in effect at the time of sale. Technical support may be provided by either our services or our associated companies.
8. Satisfaction Guarantee
8.1. Scope. Under our Satisfaction Guarantee policy, you may cancel your order for any reason during a period of fifteen (15) days after the day on which the Products are delivered (“Contractual Period”). In order to benefit from this additional guarantee, please follow the procedure described below.
8.2. Exercise of Satisfaction Guarantee. To exercise your right of cancellation under the satisfaction guarantee, you must send during the Contractual Period a written notice of cancellation by mail postage prepaid with confirmation of receipt to our Customer Service (see contact section). Your notice must state the following information: customer information (first name, last name, address, email address, phone number) and order reference. For Products downloads, you must accompany your notification by a written statement whereby you represent that: (a) the Product is uninstalled from all your computers; and (b) You will never install or use it anymore; tangible Products physically delivered to you must be returned to us under the conditions stated in section 12.
8.3. Refunds. If you exercise your right of cancellation under the “satisfied or reimbursed” guarantee, we refund you any sum paid in connection with your cancelled order as soon as possible and in any case within a period of forty (40) days beginning with the day on which the notice of cancellation was given.
9. Limited Guarantee
9.1. Scope of Guarantee. We guarantee the software mediums (CD-ROMs…) for a fair period that cannot exceed thirty (30) days from receipt of the Products. Replacement of a medium does not extend the thirty day limited guarantee period. We give you the warranty that all the Products, in all material respects, comply with the description given of them on the Site and that they are of satisfactory quality and fit for the purpose for which they are indicated on the site.
9.2. Limitations of Guarantee. You loose the benefit of the contractual guarantee where: (a) the defect results from repair or alteration by any persons other than the manufacturer or us; (b) Products have not been returned with a detailed description of the defects observed; or (c) defects are due (wholly or partially) to mistreatment, improper use or storage or maintenance or installation, or failure to observe any manufacturers’ instructions or other instructions issued or made available by us in connection with the delivered Products.
9.3. Exclusions of Guarantees. We do not offer any other guarantees, whether express or implied, particularly and unreservedly as regard the guarantees relating to the quality and the compatibility of the products and their documentation for a specific use. You expressly acknowledge that it is not possible to guarantee that software products meet performance requirements or that they work without discontinuity or bug. Consequently, we do not bear the risks relating to the software quality and performance. To the extent permitted by the applicable law, the warranties stated herein are expressly in lieu of all other warranties, and unless otherwise expressly stated herein, we make no other warranty, expressed or implied, whether in law or in fact, oral or in writing, including, but not limited to, any express or implied warranty of merchantability or fitness for a particular purpose with respect to the Products or otherwise in connection with these Conditions or non infringement or the like.
10. Returns of Products
10.1. Procedure. If you cancel an order by exercise of the contractual “satisfaction guarantee” under section 8, you are notified in writing by our Customer Service how to return the Products subject to the cancelled order. If you want to return faulty Products under the Limited Guarantee of section 9, please contact our Customer Service for full guidance. For any Products which are defective, damaged or sent in error by us, we refund the cost of the Products plus any postage charges paid by you as part of your initial order. If you require a replacement, we send this to you free of charge. Please note that Products must be returned within 30 days of receipt in order for them to quality for refund.
10.2. Duty of Care. In case of cancellation, you must not use the Products and you must take a reasonable care of them.
10.3. Costs of Returning Products. Costs of returning Products are paid by you in case of cancellation of orders by exercise of the contractual “satisfaction guarantee” under section 8. Costs of returning defective Products under section 9 are paid by us.
10.4. Risk. The risk of loss or risk of damage to the returned Products passes to us only upon their receipt.
11. Data Protection
11.1. Collection of Data. We collect personally identifiable information to the extent reasonably necessary to serve our legitimate business purposes, and we use and will maintain appropriate safeguards to ensure security, integrity and privacy of the information you have provided. In addition we take reasonable steps to ensure that third parties to whom we transfer any data provide sufficient protection of that personal information. We collect two types of data: information necessary to the delivery of Products to you (you’re your name, address and email information (“Customer Information”) and information necessary to the payment process of your Products (e.g. your name, banking and credit or banking card information (“Payment Information”).
11.2. Disclosure of data to other parties. As explained in Section 4.7, Payment Information are encrypted and held on secured servers by our provider in charge of the payment process (Global Collect, DataCash, Bibit…). We disclose your Customer Information to our parent company Avanquest Software and we reserve the right to disclose them to any other associated companies.
12. Liability Limitation
12.1. Death, Personal Injury, Negligence. We do not exclude or restrict our liability for death or personal injury resulting from our negligence.
12.2. Foreseeable Losses. We are only liable for losses which are foreseeable to both you and us as a consequence of us breaching these Conditions and caused by our negligence. We are note responsible for any commercial or business losses (including without limit, loss of goodwill, profits, contracts, anticipated savings, data or waste expenditures) or any other indirect or consequential loss that was not reasonably foreseeable to both you and us at the time our contract was formed, or at the time you began using the Site (whichever is the later). Nothing in these Conditions shall affect statutory rights.
13. Software Programs
13.1. Licensing Terms. When we supply Products which are or include software programs (the “Software“), the Software is licensed by the relevant licensor. Its use is subject to the end-user license agreement or other licensing terms included with the Software. Under no circumstances, delivery or download of Software, means transfer of any ownership interest in the Software.
13.2. Copyright. 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 this is permitted in the licensing terms or applicable law expressly mandates such a right.
14.1. Consumer Law. The Conditions cannot restrict or exclude of our liability or of a manufacturer’s towards you, when an applicable law in your country forbids such contractual restriction or exclusion. The Conditions does not affect the rights you have under an imperative legislation concerning the protection of consumers.
14.2. Assignment. You are not entitled to assign or delegate your rights under these Conditions to third parties.
14.3. Severability. If a competent Court determines any provision of these Conditions to be invalid, unlawful or unenforceable, it will be declared void or invalid but such decision will not affect the validity or unenforceability of the remaining provisions.
14.4. Entire Agreement. These Conditions constitutes the entire agreement between you and us with respect to their subject matter and supersede all prior communications or agreements, both oral and written, between us and you.
14.5. Waiver. No term or provision of these Conditions will be considered waived by us and no breach excused by us, unless such waiver or consent is in writing signed. The waiver by us of, or consent by us to, a breach of any provision of this Agreement by you, does not operate or cannot be construed as a waiver of, consent to, or excuse of any other or subsequent breach by you.
14.6. Headings. The section headings are for convenience of reference only and in no way affect the interpretation of these Conditions.
14.7. Rights of Third Parties. Save as expressly provided, these Conditions are not intended to confer any benefit on a third party under the provision of the Contracts Act 1999 (Right of Third Parties). Any rights not expressly granted herein are expressly reserved to us.
14.8. Export Control Laws. Product, including software and documentation, available on the Avanquest Software websites is subject to export controls administered by the United States and other countries. Diversion contrary to U.S. law is prohibited. Export, re-export or import of certain product may require action on your behalf prior to purchase and it is your responsibility to comply with all applicable international, national, state, regional and local laws, and regulations, including any applicable import and use restrictions.
14.9. Jurisdiction. The Conditions are construed and governed by English law without reference to its conflict of laws principles. The courts of England have exclusive jurisdiction in relation to any claim, dispute or other matters arising from these Conditions or the supply of Products by us.