TERMS OF USE
TERMS OF USE
Thank you for shopping with Nico Gerard LLC (referred to herein “Nico Gerard”, “Us”, “We” or “Our). Your use of the Nicogerard.com website (“Site”) and your purchase of merchandise is subject to these Terms of Use (“Terms”). You agree that your use of the Site signifies that you have read and agree with both these Terms and our Privacy Policy, a current version of which can be found at: privacy-policy (“Privacy Policy”) . ACCESSING, BROWSING OR OTHERWISE USING THE SITE INDICATES YOUR AGREEMENT TO THESE TERMS, SO PLEASE READ THEM CAREFULLY BEFORE PROCEEDING. You represent and warrant that you are at least 18 years old.
1. Limited License. Subject to these Terms, We hereby grant you a limited, revocable, non-transferable and non-exclusive license to access and use the Site by displaying it on your internet browser only for the purpose of shopping for personal items sold on the Site and not for any commercial use or use on behalf of any third party, except as explicitly permitted by us in writing in advance. Any breach of these Terms shall result in the immediate revocation of the license granted in this paragraph without notice to you. You agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from content or materials available on Our Site.
- Restrictions on Use. You agree that you will not use the Site to transmit any information that: (a) is false or misleading; (b) is defamatory, derogatory, degrading or harassing of another or constitutes a personal attack; (c) invades another's privacy or includes another's confidential, sensitive or personal information; (d) promotes bigotry, racism, hatred or harm against any group or individual; (e) is obscene or not in good taste; (f) violates or infringes or promotes the violation or infringement of another's rights, including intellectual property rights; (g) you do not have the right and authority to share and grant the necessary rights and licenses for; (h) violates or promotes the violation of any applicable laws or regulations; (i) contains a solicitation of funds, goods or services, or promotes or advertises goods or services; or (j) contains any viruses, Trojan horses, or other components designed to limit or harm the functionality of a computer or network. We reserve the right to refuse service, terminate accounts, and/or cancel orders at Our discretion, including, without limitation, if we believe that your conduct violates these Terms
3. Passwords and Security. You are responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account or password. You agree to immediately notify us in the event of any unauthorized use of your account or other breach of security. Additionally, by using the Site, you acknowledge and agree that Internet transmissions are never completely private or secure. You understand that any message or information you send to the Site may be read or intercepted by others, even if there is a special notice that a particular transmission (for example, credit card information) is encrypted.
4. Indemnity. You agree to indemnify and hold harmless Us and Our officers, directors, employees and agents from and against any and all claims, liabilities, damages, losses or expenses, including reasonable attorneys' fees and costs, due to or arising out of information you provide in connection with your use of the Site, your violation of the Terms of Use or any additional rules, guidelines or terms of use posted for a specific area of the Site or your violation or infringement of any third party rights.
5. Proprietary Rights. You acknowledge and agree that the Site and all content contained on the Site (including but not limited to Our name, logos, graphics, videos, music, button icons, and page headers) are the property of Nico Gerard and its licensors and are protected by copyrights, trademarks, service marks, or other proprietary rights and laws. All trademarks not owned by Us that appear on the Site are the property of their respective owners.
6. Links to Third-Party Websites/Content. Our Site may contain links to other websites on the Internet. You acknowledge that we have no control over such websites and that we are not responsible for the accuracy, content, legality, or any other aspect of any linked website. In no event shall any reference to any third party, third party website, or third party product or service be construed as an approval or endorsement by us of that third party, third party website, or of any product or service provided by a third party.
7. Feedback/Comments. Any Feedback you provide at this Site shall be deemed to be non-confidential. "Feedback" includes, but is not limited to, comments, postcards, emails, suggestions, ideas, and other submissions disclosed, submitted or offered to Us on or by this Site or otherwise disclosed, submitted or offered in connection with your use of this Site. We shall be free to use such Feedback on an unrestricted basis. You agree that no Feedback submitted by you to the Site will violate any right of any third party, including copyright, trademark, privacy or other personal or proprietary right(s). You further agree that no Feedback submitted by you to the Site will be or contain libelous or otherwise unlawful, abusive or obscene material. You are and shall remain solely responsible for the content of any Feedback you make.
8. Terms of Sale. Except as otherwise expressly specified in these Terms, all purchases are final and are non-refundable. You will be sent a sizing kit to assist in the manufacturing of your product. Please follow the instructions for sizing and completion carefully and contact us if you have questions. Prices are exclusive of shipping, insurance and taxes, which shall be your responsibility (excluding taxes on our income). All such additional fees shall be itemized on your invoice. Payments shall be due as follows:
Reservation Fee - $200 USD due at the time of Reservation.
Production Start Fee – Twenty Five Percent (25%) of the total fees (less your Reservation Fee) is due at the time that We begin production on your product if you are purchasing Stainless Steel and Fifty Percent (50%) if you are purchasing a Gold product.
Balance is due six (6) weeks prior to shipment of your product.
All payments must be made by credit card, wire transfer or check as specified in your invoice. In the event you fail to remit payment when due and fail to bring your account current within five (5) days following Our notice that payment has not been received, you will forfeit your reservation as well as any fees paid to date for your product. The risk of loss and title for items purchased pass to you upon Our delivery of the items to the carrier. We reserve the right to cancel, delay, refuse to ship or recall from the shipper any order if fraud is suspected.
For International Purchasers: If you choose to internationally ship the item(s), please note the following: We deliver items only to locations within the U.S. You are responsible for exporting the item from the U.S. and for completing all U.S. export clearance responsibilities. You are also responsible for making sure the item is lawfully imported into the destination country. You are responsible for any import taxes, custom duties or fees. We must not be listed on any import or export documents, such as invoices, packing lists, import or export declarations documents, etc. We are not responsible for any damage, loss or defect that occurs after the item is delivered to the address in the U.S. as designated by you. YOU ARE THE EXPORTER OF RECORD FROM THE U.S. As such, you need to comply with U.S. export laws and regulations (including making sure that the item is lawfully exported to the destination country). You also need to arrange for export clearance and international transportation to the destination country. YOU ARE THE IMPORTER OF RECORD FOR THE DESTINATION COUNTRY. As such, you need to comply with the applicable laws and regulations of the destination country (including making sure that the item can be lawfully imported to the destination country). Additional charges, such as those listed in the above (import taxes, custom duties or fees, etc.), are your responsibility. We have no control over these charges and are not able to estimate any such charges. You should contact your local customs office for additional information. Please note that any customs clearance process can cause delays beyond Our original delivery time frames. Please note that customs clearing processes could require any cross-border shipment be opened and inspected by applicable authorities.
9. Limited Warranty. All products are warranted against defects in materials and/or workmanship under normal use for a period of Three (3) YEAR from date of purchase by the original purchaser ("Warranty Period"). If a defect arises and a valid claim is received within the Warranty Period, at its option, We will either 1) repair the defect at no charge, using new or refurbished replacement parts, or 2) replace the product with a new product that is at least functionally equivalent to the original product, or 3) provide a store credit in the amount of the purchase price of the original product. A replacement product or part, including a user-installable part installed in accordance with instructions provided by Us assumes the remaining warranty of the original product. When a product or part is exchanged, any replacement item becomes your property and the replaced item becomes Our property. When a store credit is given, the original product must be returned to Us and becomes Our property.
For customers outside of the United States who are covered by consumer protection laws or regulations in their country of purchase or, if different, their country of residence, the benefits conferred by Our Limited Warranty are in addition to all rights and remedies conveyed by such consumer protection laws and regulations.
This warranty does not apply to: a) damage caused by failure to follow instructions relating to product’s use or the installation of components; b) damage caused by accident, abuse, misuse, fire, floods, earthquake or other external causes; c) damage caused by service performed by anyone who is not authorized by Us; d) accessories used in conjunction with a covered product; e) a product or part that has been modified to alter functionality or capability; f) items intended to be periodically replaced by the purchaser during the normal life of the product including, without limitation, straps or g) to a product that is used commercially or for a commercial purpose.
To obtain warranty service, call Us at 408-657-3613. Please be prepared to describe the product that needs service and the nature of the problem. A purchase receipt is required. All repairs and replacements must be authorized in advance. Service options, parts availability and response times will vary. You are responsible for the cost of shipping products back to Us.
WE SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OF PRODUCTS PURCHASED FROM THE SITE, OR ARISING OUT OF ANY BREACH OF THIS WARRANTY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ANY AND ALL STATUTORY OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS. IF WE CANNOT LAWFULLY DISCLAIM STATUTORY OR IMPLIED WARRANTIES, THEN TO THE EXTENT PERMITTED BY LAW, ALL SUCH WARRANTIES SHALL BE LIMITED IN DURATION TO THE DURATION OF THIS EXPRESS WARRANTY.
Some states disallow the exclusion or limitation of incidental or consequential damages or how long an implied warranty lasts, so the above exclusions or limitations may not apply to you. This warranty gives you specific legal rights and you may also have other rights, which vary from state to state.
10. Reservation Purchases. Notwithstanding the foregoing, purchases for Reservations will be eligible for merchandise credit (“Credit”) in the event that the product reserved does not become available within the time specified in the product description. All credits will be equal to the original Reservation price, plus applicable sales tax, less shipping charges. Credit may be redeemed only for the purchase of merchandise at our Site and is not transferable and may not be combined with Credits belonging to others. At no time may you purchase, sell or barter any Credit. Credit is not redeemable for cash, unless required by law.
11. Accuracy of Content; Limitations on Quantity. In the event a product is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or product information received from our suppliers, we shall have the right to refuse or cancel any orders placed for product listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, we shall immediately issue a credit to your credit card account in the amount of the charge.
12. Disclaimers. WE DO NOT PROMISE THAT THE SITE OR ANY CONTENT OR FEATURE OF THE SITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE SITE WILL PROVIDE SPECIFIC RESULTS. THE SITE AND ITS CONTENT ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. ALL INFORMATION PROVIDED ON THE SITE IS SUBJECT TO CHANGE WITHOUT NOTICE. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE DISCLAIM ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SITE. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST US FOR DISSATISFACTION WITH THE SITE OR ANY CONTENT IS TO STOP USING THE SITE OR ANY SUCH CONTENT. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.
The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.
We reserve the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Site, or any portion of the Site, for any reason; (2) to modify or change the Site, or any portion of the Site, and any applicable policies or terms; and (3) to interrupt the operation of the Site, or any portion of the Site, as necessary to perform routine or non-routine maintenance, error correction, or other changes.
13. Limitation of Liability. Except where prohibited by law, in no event will We (or our officers, directors, employees or agents) be liable to you for any indirect, consequential, exemplary, incidental or punitive damages, including lost profits, even if We have been advised of the possibility of such damages. If, notwithstanding the other provisions of these Terms, We are found to be liable to you for any damage or loss which arises out of or is in any way connected with your use of the Site or any Content, Our liability shall in no event exceed the greater of (1) the purchase price of the products purchased by you at our Site giving rise to the liability, or (2) US$100.00. Some jurisdictions do not allow limitations of liability, so the foregoing limitation may not apply to you.
14. International Use. We make no representation that information available in connection with the Site or the products available for purchase are appropriate or available for use outside the United States. Those who choose to access the Site from outside the United States do so on their own initiative and risk and are responsible for compliance with local laws, if and to the extent local laws are applicable. Any offer for any feature, product or service made on the Site is void where prohibited.
15. Copyright Infringement; Notice and Take Down Procedures. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that any materials on Our Site infringe your copyright, you may request that they be removed. This request must bear a signature (or electronic equivalent) of the copyright holder or an authorized representative, and must: (a) identify the allegedly infringing materials; (b) indicate where on the Site the infringing materials are located; (c) provide your name and contact information; (d) state that you have a good faith belief that the materials are infringing; (e) state that the information in your claim is accurate; and (f) indicate that "under penalty of perjury" you are the lawful copyright owner or are authorized to act on the owner's behalf. If you believe that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for further information. Our contact for copyright issues relating to the Services (including the notices and counter-notices) is: Copyright Agent, Andy Pluemer 3561 Homestead Road, Suite 500, Santa Clara CA 95051. Please note that there are penalties for false claims under the DMCA.
16. Violation of Terms and Remedies. You agree that our remedy at law for any actual or threatened breach of this Agreement would be inadequate and that we shall be entitled to specific performance or injunctive relief, or both, in addition to any damages that we may be legally entitled to recover, together with reasonable expenses of any form of dispute resolution, including, without limitation, attorneys' fees.
We may disclose any information we have about you (including your identity) if we determine that such disclosure is necessary in connection with any investigation or complaint regarding your use of the Site, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) Our rights or property, or the rights or property of visitors to or users of the Site. We reserve the right at all times to disclose any information that We deem necessary to comply with any applicable law, regulation, legal process or governmental request. We may also disclose your information if We determine that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes. You agree that We may preserve any transmittal or communication by you through the Site and may also disclose such data if required to do so by law or if We determine that such preservation or disclosure is reasonably necessary to (1) comply with legal process, (2) enforce these Terms, (3) respond to claims that any such data violates the rights of others, or (4) protect the rights, property or personal safety of Nico Gerard, its employees, users of or visitors to the Site, and the public. You further agree that We may, in Our sole discretion and without prior notice, terminate your access to the Site and/or block your future access to the Site if we determine that you have violated these Terms or other terms and conditions applicable to the Site. No right or remedy of ours shall be exclusive of any other, whether at law or in equity, including without limitation damages injunctive relief, attorneys' fees and expenses.
17. Disputes and Legal. These Terms (together with the Privacy Policy) shall be governed by the internal substantive laws of the State of California, without regard to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. While We will make every reasonable effort to resolve any disagreements you may have with Us, if these efforts fail, then you and We agree that all disputes arising out of or relating to your use of the Site, these Terms, the purchase, sale of any products, or the content, display or disclosure of any information on or in connection with the Site ("Claims") are subject to binding arbitration, except that to the extent you have in any manner violated or threatened to violate Our intellectual property rights, in which event we may seek injunctive or other appropriate relief in any state or federal court in the State of California. You agree to the personal jurisdiction by and venue in the state and federal courts in Santa Clara County, California, and waive any objection to such jurisdiction or venue. Arbitration under these Terms shall be conducted pursuant to the Commercial Arbitration Rules then prevailing at the American Arbitration Association. The arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class action proceedings or otherwise. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Site or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever banned.
18. Miscellaneous. Unless otherwise specified herein, these Terms, together with the Privacy Policy, constitute the entire agreement between you and Nico Gerard with respect to the Site and the products purchased via Our Site and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Us. If any part of these Terms is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Our failure to act with respect to a breach by you or others does not waive Our right to act with respect to subsequent or similar breaches. Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Us without restriction. The section headings contained in these Terms are included for convenience only and shall not limit or otherwise affect these Terms.
If you have any questions regarding these Terms, please contact us as at: support@nicogerard.com
The information contained in this web site is subject to change without notice.
Updated July 7, 2015