1. General
1.1. Please read these Terms of Sale carefully before you submit any order to us. THESE TERMS OF SALE CONTAIN VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO YOU. BY PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM THIS WEBSITE, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. THESE TERMS OF SALE REQUIRE THE USE OF ARBITRATION (OR SMALL CLAIMS COURT) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1.2. These Terms of Sale, including any information made available via a hyperlink herein (together the “Terms of Sale”), set forth the terms and conditions upon which we supply Products to you. These Terms of Sale will govern all orders placed on this website and will constitute an agreement between ABXYLUTE, as the seller, and you, as the purchaser, with respect thereto.
1.3. References in these Terms of Sale to “Products” (or, singularly, to a “Product”) shall mean devices and accessories made available for sale by ABXYLUTE on this website and/or any other products sent to you by ABXYLUTE, or which ABXYLUTE agrees to supply to you, under these Terms of Sale.
1.4. References in these Terms of Sale to “you,“ “your” or the “customer” shall mean the person purchasing any Product(s).
1.5. References in these Terms of Sale to “we,“ “our, “ us” or “ABXYLUTE” shall mean Shanghai ABXY Tech Co., Ltd. a WA corporation, trading as ‘ABXYLUTE’ and having (i) its registered office in the 100 N HOWARD ST STE R, SPOKANE, WA, 99201, UNITED STATES
1.6. Please contact us as set forth in Section 18 (‘Contact Us’) below with any questions, comments or concerns in connection with these Terms of Sale.
2. Product Images
Images of the Products on this website are for illustrative purposes only. Although we have made every effort to ensure the accuracy of Product images on this website, your Product may vary slightly (e.g., by color) from those images. All features, functionality and other Product specifications are subject to change without notice or obligation.
3. Contract for the Purchase of Product(s)
3.1. By placing an order using the online check-out process on this website, (i) you are making an offer to buy the selected Product(s) from us under these Terms of Sale; and (ii) you represent and warrant that you are authorized to use the designated payment method. All orders must be accepted by us or we will not be obligated to sell the Product(s) to you. We may choose not to accept any orders in our sole discretion.
3.2. Your offer to purchase Product(s) will be considered accepted by us upon the earlier of (i) your receipt of a confirmation email from us with your order number and details of the Products(s) you have ordered, or (ii) delivery of the Product(s). Acceptance of your order and the formation of the contract of sale between ABXYLUTE and you will not take place unless and until you have so received your order confirmation email and/or the Product(s).
3.3. Without limiting the generality of the foregoing, we may refuse to accept your order if: (i) the Product is no longer in stock; (ii) the Product is no longer being produced; (iii) there is a price fluctuation; (iv) we cannot obtain authorization for your payment or we do not receive payment; (v) a credit reference we have obtained for you does not meet our minimum requirements; (vi) we have a reasonable suspicion of fraudulent activity (including unauthorized reseller activity) in violation of these Terms of Sale; or (vii) you do not live in a region in which Products may be purchased.
3.4. In the event of any such nonacceptance, ABXYLUTE will notify you of the nonacceptance and refund any money you have paid toward an order in a timely manner.
3.5. Unless otherwise provided under applicable law, refund of any money you have paid toward an order will be the extent of ABXYLUTE’s liability for any such nonacceptance.
4. Cancellations
4.1. ABXYLUTE makes every effort to supply the Product(s) listed in your order confirmation email. In some situations, however, we will need to cancel your order. For example, if: (i) we are legally required to do so; (ii) the item is no longer in stock; and/or (iii) we have a reasonable suspicion of fraudulent activity (including unauthorized reseller activity) in violation of these Terms of Sale.
4.2. Incomplete shipping address information or failure to update required shipping details via email/phone when asked may also result in order cancellation.
4.3. We are not responsible for pricing, typographical or other errors in any offer by us and we reserve the right to cancel any orders arising from such errors.
4.4. In the event of any such cancellation, ABXYLUTE will notify you of the cancellation and refund the money you have paid toward the order in a timely manner.
4.5. Unless otherwise provided under applicable law, refund of money you have paid toward an order will be the extent of ABXYLUTE’s liability for any such cancellation.
5. Prices and Payment
5.1. All prices posted on this website are subject to change without notice. The price charged for a Product will be the price in effect at the time the order is placed. Price increases will only apply to orders placed after such changes. Prices and currencies displayed on your order confirmation at checkout and set forth in your order confirmation email are final.
5.2. Payments are subject to the terms and conditions governing your payment instrument (e.g., the credit card you used for payment) between you and the issuer of your payment instrument (e.g., your bank). You are responsible for any charges and related fees that may be imposed under the payment instrument terms and conditions as a result of your use of a payment instrument. ABXYLUTE does not charge extra transaction fees. You agree that ABXYLUTE shall not be held liable for any fees in addition to those displayed at checkout.
5.3. If you are paying for your order with an international credit or debit card, the price displayed in your card statement may vary based on exchange rates. Your bank or card issuer may also charge additional foreign conversion charges and fees, which may increase the overall cost of your purchase. Please contact your bank or card issuer regarding any such fees incurred.
5.4. All local or national taxes or duties, if any, due on account of purchases hereunder shall be paid by the customer. Posted prices do not include charges for shipping and handling. All such taxes and charges will be added to your total price.
5.5. The personal information you provide when making a purchase will be processed electronically by ABXYLUTE for the payment of the order and for anti-fraud control. Payments on ABXYLUTE.com are handled by third-party payment partners and transmitted using the Secure Sockets Layer (“SSL”) protocol with 2048-bit encryption. ABXYLUTE does not store or have access to your payment details. Your credit/debit card information is retained via our third-party payment partners’ servers.
5.6. Terms of payment are within our sole discretion and payment must be received by us before our acceptance of an order. You represent and warrant that you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.
6. Shipping and Handling Policy
6.1. All goods are inspected and sealed before delivery to avoid damage. Orders are usually shipped within two (2) business days of payment. At the discretion of ABXYLUTE, orders made during promotional periods and special events may have longer shipping times. In such cases, the customer will be separately informed in advance.
6.2. Shipping time is calculated based on shipping address and shipping method. The following options can be selected during checkout: (i) Standard Shipping (two (2) business days processing time, plus three to seven (3-7) business days shipping time); or (ii) Priority Shipping (two (2) business days processing time, plus one to three (1-3) business days shipping time).
6.3. ABXYLUTE will keep you updated on your order status via email. Orders cannot be cancelled once they have reached “shipped” status.
6.4. Disclaimer:
(a) Please note that all delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments. Additional charges will be necessary for shipping addresses in remote locations. We are unable to ship to PO Box and military addresses.
(b) Using a forwarding company is not recommended as tracking information will be beyond our monitoring system.
(c) Please note that three (3)-day shipping (aka ‘Priority Shipping, as described above) will not be available in the following circumstances: (i) you schedule delivery at a fixed time; (ii) you provide incomplete or incorrect address information; (iii) you are not home or available at the time of delivery; (iv) you request self-pickup at a post office; and (v) extreme weather conditions or other force majeure events.
6.5. You will pay all shipping and handling charges specified during the ordering process.
7. Risk and Title
7.1. Title to and the right to retake possession of all Products purchased from ABXYLUTE hereunder shall remain with ABXYLUTE until all sums owed by you in respect of such Products have been paid in full. ABXYLUTE may, at your expense, retake possession of such Products.
7.2. Risk of loss or damage to all Products hereunder will pass to the customer upon delivery of the Products to the customer.
8. Return and Replacement Policy
8.1. ABXYLUTE devices and accessories are made to the highest standards and undergo rigorous testing. If you are not satisfied with your Product for any reason, you may request a refund or replacement within fifteen (15) calendar days of delivery. Once we have approved your request, we receive your returned Product, and such Product passes inspection, we will replace your Product or give you a full refund in accordance with the price you paid for the Product.
8.2. To return an item, you will be required to submit a Return Merchandise Authorization (“RMA”) form describing the problem with your Product. You will also be required to provide your original proof of purchase (i.e., the invoice). Please contact ABXYLUTE customer service at Support (and please refer to Section 8.5 below) for assistance with this process. In order to be eligible for a refund or replacement, you must contact us within fifteen (15) calendar days of delivery and your RMA form must describe in detail how the goods were defective, damaged, materially different from as described, or otherwise unsatisfactory or unfit for their given purpose.
8.3. We may choose not to accept returns in certain situations, including, without limitation, the following circumstances: (i) defects or damages caused by misuse, neglect, physical damage, tampering, incorrect adjustment, normal wear and tear or incorrect installation after purchase; or (ii) price fluctuations being the sole reason for return.
8.4. In all cases, we will inspect the Product(s) and verify any fault. To qualify for a replacement or refund, Products must be in undamaged, ‘as new’ condition and with the original packaging. We reserve the right to refuse a refund if the Product returned is reasonably deemed to have been damaged.
8.5. To request a return, please contact ABXYLUTE customer service at Support. Once you have so contacted ABXYLUTE customer service regarding a refund or replacement:
(a) You will receive and be required to submit an RMA form. Print out the RMA form and place it inside of the shipping package you're returning. Without a verified RMA form, the returned package will be declined. Return requests cannot be cancelled by you once the returned package has reached “shipped” status.
(b) Return all items from your original shipment, including devices, accessories, packaging and documentation. Do not send additional add-ons such as your SIM card, cases, screen protectors, headphones or other accessories that didn’t come with the Product(s). If such additional or other items are shipped to us by mistake, we are not able to return them.
(c) Before returning any unit, be sure to transfer, back up or erase all of your personal and other data, as appropriate. You are responsible for the personal information stored on your device. Please erase all personal and sensitive data on the device before sending it to ABXYLUTE. ABXYLUTE will not be responsible for any disclosure of data still on the returned device.
(d) ABXYLUTE is not and shall not be held responsible for the loss or deletion of any software programs, data or other information contained on or accessible through the returned Product. Recovery and reinstallation of third-party software programs, data and other information are not covered under warranty.
8.6. ABXYLUTE will pay all shipping and handling charges on returned items, provided the Product is shipped back pursuant to ABXYLUTE’s standard practices (e.g., a carrier selected by ABXYLUTE). If the Product is not shipped back pursuant to ABXYLUTE’s standard practices, but instead shipped at the customer’s expense, ABXYLUTE will not refund any such costs unless the return is due to ABXYLUTE’s error (e.g., defective, damaged or wrong item).
8.7. Any refund will be credited back using the same payment method used to make the original purchase on this website.
9. LIMITED Warranty Policy
9.1. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION. WE WARRANT THAT DURING THE WARRANTY PERIOD, THE PRODUCT(S) PURCHASED FROM THIS WEBSITE WILL BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP.
9.2. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THESE TERMS OF SALE OR AS OTHERWISE REQUIRED UNDER APPLICABLE LAW, (i) ABXYLUTE PROVIDES ITS GOODS AND SERVICES ON AN “AS IS” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND; AND (ii) THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THESE TERMS OF SALE AND TO THE EXTENT NOT PROHIBITED BY LAW, WE DISCLAIM ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR ABSENCE OF HIDDEN DEFECTS.
Some states, provinces and territories do not allow disclaimers of implied warranties, so the above disclaimer may not apply to you.
9.3. OUR RESPONSIBILITY FOR DEFECTIVE PRODUCTS IS LIMITED TO REPAIR, REPLACEMENT OR REFUND AS SET FORTH IN THESE TERMS OF SALE. NEITHER ANY PERFORMANCE OR OTHER CONDUCT, NOR ANY ORAL OR WRITTEN INFORMATION, STATEMENT OR ADVICE PROVIDED BY US OR ANY OF OUR AGENTS OR EMPLOYEES, WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OR DURATION OF THIS LIMITED WARRANTY.
9.4. ABXYLUTE Phones (including the battery), Power Adapters, Charging/Data Cables and Earphones purchased on ABXYLUTE.com come with a limited warranty, commencing on the date of delivery and for the duration of twelve (12) months. ABXYLUTE Screen Protectors, Flip Covers, Protective Cases, StyleSwap Covers and Swag purchased on ABXYLUTE.com come with a limited warranty, commencing on the date of delivery and for the duration of fifteen (15) days. This limited warranty extends only to the original purchaser of Product(s) from this website. It does not extend to any subsequent or other owner or transferee of the Product(s). Said warranty only covers Product defects in materials and workmanship.
9.5. This warranty is only redeemable within your original country or region of purchase. Please note that we offer after-sales assistance (including repairs and/or replacements/returns) only in official sales regions (i.e., the regions in which we make shipments).
9.6. Except as otherwise specifically provided in Section 9.4 above, this warranty covers the hardware components of the Product as originally supplied and does not cover, in whole or in part, any associated software, services, consumable items (such as batteries) or accessories—even if packaged or sold together with the Product.
9.7. The warranty period is not extended if we repair or replace a warranted Product. The repaired or replaced Product will, however, continue to be warranted for the remaining time of the original warranty period.
9.8. To obtain warranty service, you must submit an RMA form describing the problem with your device. You will also be required to provide your original proof of purchase (i.e., the invoice), the model and serial number of the Product, and photographic evidence of the Product’s defect(s). Please contact ABXYLUTE customer service at Support for assistance with this process. Once you have so contacted ABXYLUTE customer service regarding warranty service:
(a) You will receive and be required to submit said RMA form. Print out the RMA form and place it inside of the shipping package you're forwarding for warranty service. No warranty service will be provided without a verified RMA form.
(b) Forward all appropriate items from your original shipment, including devices and any available packaging and documentation. Do not send additional add-ons such as your SIM card, cases, screen protectors, headphones or accessories. If such additional or other items are shipped to us by mistake, ABXYLUTE is not and shall not be held responsible for their loss.
(c) Before fowarding any unit for warranty service, be sure to transfer, back up or erase all of your personal and other data, as appropriate. You are responsible for the personal information stored on your device. Please erase all personal and sensitive data on the device before forwarding it for warranty service. ABXYLUTE will not be responsible for any disclosure of data still on the serviced device.
(d) During service, the device may undergo a ‘hard reset’ that will completely erase all data, settings and content on the device, return the device to its original factory settings, and/or cause the device to become locked to the original carrier. Should your device become locked, only said carrier or a third-party phone unlocking service provider can unlock your device and you will need to contact such carrier or service provider (or otherwise follow their established procedures) to request or effectuate an unlock. During service, even if the device does not undergo a ‘hard reset,’ data stored on the device may otherwise be deleted and reformatted in whole or in part. ABXYLUTE is not and shall not be held responsible for the loss of any such data, software programs or other information contained on or accessible through the serviced Product. Recovery and reinstallation of any such data, third-party software programs and other information are not covered under warranty.
(e) If your device suffers from multiple problems and not all of them are covered under warranty, and if you are only requesting a repair of the problem(s) that are covered under warranty, it may not be possible or feasible to do such a partial repair, as requested, if we reasonably determine (in our sole discretion) that such a partial repair will create an undue risk of further problems with the device. In such cases, ABXYLUTE may refuse to service the device unless you agree to also allow, at your expense, the simultaneous repair of the problem(s) that are not covered under warranty.
9.9. ABXYLUTE will pay all shipping and handling charges on serviced items, provided the Product is forwarded for warranty service pursuant to ABXYLUTE’s standard practices (e.g., a carrier selected by ABXYLUTE).
9.10. With respect to any defective Products during the applicable warranty period, we will, in our sole discretion, either: (i) repair or replace the Product (or the defective part), or (ii) refund the purchase price of the Product.
9.11. ABXYLUTE may use rebuilt, reconditioned or new parts and components when repairing any Product. Alternatively, we may replace any defective Product entirely with a rebuilt, reconditioned or new ABXYLUTE Product.
9.12. THIS LIMITED WARRANTY DOES NOT COVER:
(a) Defects or damage resulting from or caused by: (i) ordinary wear and tear; (ii) accidents; (iii) misuse (including failure to follow Product documentation); (iv) abnormal use; (v) neglect (including failure to perform preventative maintenance); (vi) disassembly; (vii) improper testing, maintenance, installation, modification, adjustment, repair or servicing not furnished by ABXYLUTE or an authorized ABXYLUTE partner; (viii) external causes such as, but not limited to, theft, liquid damage, exposure to sharp objects, exposure to excessive force, anomalies in the electrical current supplied to the Product, exposure to extreme thermal conditions, and exposure to moisture, dampness, sand, dirt or other weather/environmental conditions (including as the result of improper storage); (ix) use of the Product in conjunction with accessories, devices, ancillary/peripheral equipment, systems, software or other matter not furnished or approved by ABXYLUTE; or (x) cellular signal reception or transmission, viruses or other software problems introduced into the Product.
(b) Devices that have the serial number or the International Mobile Equipment Identity (“IMEI”) numbers removed, defaced, damaged, altered or made illegible.
(c) Products not purchased from ABXYLUTE.com or authorized resellers (it is recommended that you first contact the point of sale for any support).
(d) Products purchased outside of officially supported ABXYLUTE countries or regions (i.e., outside of countries or regions in which we make shipments). This limited warranty is only valid and enforceable in locations where the Product is sold.
(e) Loss of data, whether caused by warranty service or otherwise.
(f) All third-party products (hardware and software) and services, which are sold by ABXYLUTE “as is” and without warranty from ABXYLUTE (but which, without prejudice to the foregoing, may be accompanied by a warranty from the original manufacturer).
9.13. This limited warranty does not guarantee that use of a Product will be uninterrupted or error-free.
10. Limitation of Liability
10.1. THE REMEDIES SET FORTH IN THESE TERMS OF SALE ARE (i) THE ONLY EXPRESS WARRANTY ABXYLUTE PROVIDES with respect to the Products AND/OR ANY OTHER CLAIM AGAINST ABXYLUTE UNDER OR RELATED TO THESE TERMS OF SALE, (ii) YOUR SOLE AND EXCLUSIVE REMEDIES, AND (iii) OUR ENTIRE OBLIGATION AND LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ABXYLUTE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS OR OTHER TERMS BINDING ON ABXYLUTE OF ANY KIND, WHETHER STATUTORY OR IMPLIED, ARISING FROM COURSE OF CONDUCT OR OTHERWISE, REGARDING YOUR PRODUCT(S), EXCEPT THAT ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT THAT CANNOT BE DISCLAIMED ARE LIMITED IN DURATION TO THE PERIOD OF THE EXPRESS WARRANTY SET FORTH IN THESE TERMS OF SALE.
Some states, provinces or territories do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you.
10.2. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT FOR PAYMENTS EXPLICITLY OUTLINED IN THESE TERMS OF SALE, EITHER PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THESE TERMS OF SALE, WHETHER IN CONTRACT, WARRANTY, CONDITION, TORT, STRICT LIABILITY, STATUTE OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT PAID TO ABXYLUTE HEREUNDER FOR THE APPLICABLE PRODUCT(S) OR ANY SERVICE. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. ABXYLUTE DISCLAIMS ALL LIABILITY OF ANY KIND OF ABXYLUTE’S LICENSORS AND SUPPLIERS.
10.3. The foregoing limitations shall not apply to (i) any claim by ABXYLUTE against the customer for violation of intellectual property rights, or (ii) for payment of the amount due to ABXYLUTE by the customer for Products and services purchased under these Terms of Sale.
10.4. Except for ABXYLUTE’s explicit warranty obligations (as expressly provided in these Terms of Sale); cases of death or serious bodily harm, fraud or fraudulent misrepresentation; or any other damage that cannot be excluded under applicable law:
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR LOSS OF PROFITS, REVENUE, OR INCOME; LOSS OF BUSINESS, OPPORTUNITY, PRODUCTION, WORK, GOODWILL OR REPUTATION; LOSS OF USE; LOSS OF DATA; ANY DIMINUTION OF IN VALUE; COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR OF RECOVERING OR REPRODUCING ANY DATA; OR ANY SPECIAL, ECONOMIC, EXEMPLARY, PUNITIVE, INCIDENTAL, COVER OR CONSEQUENTIAL DAMAGES OR LOSSES THAT MAY BE INCURRED BY EITHER PARTY UNDER, ARISING OUT OF OR RELATING TO THESE TERMS OF SALE, WHETHER DIRECT OR INDIRECT, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, INFRINGEMENT, CONDITION, STATUTE OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some states, provinces or territories do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
10.5. ABXYLUTE shall also not be held liable for any losses due to the fault of third parties, including, without limitation, packages that are lost or stolen in transit; damages caused by incorrect or improper usage of the Products by third parties; or other losses or damages attributable in full or in part to third parties.
11. Intellectual Property
11.1. We own or have a right to use all intellectual property and proprietary rights in our website, including all content. You agree that you will only use our website for personal, non-commercial use.
11.2. Certain trademarks on this website belong to third parties and may not be used without permission. Please see their respective websites for more information.
11.3. Nothing herein shall be construed as granting a license to any name, logo, trademarks, trade names, copyrights, patents, design patents, mask works, trade dress or any other forms of intellectual property or proprietary rights of either ABXYLUTE or its licensors. ABXYLUTE expressly reserves all such rights.
11.4. ABXYLUTE and its licensors are and will remain the sole and exclusive owners of all intellectual property rights in and to the Products (and any services) made available on this website and any related specifications, instructions, documentation, software or other materials, including, without limitation, all related copyrights, patents, trademarks and other intellectual property rights, subject only to such limited license as may be granted under such Product’s or service’s applicable license terms and provisions. You do not and will not have or acquire any ownership of these intellectual property rights in and to the Products or any services made available through this website, or of any intellectual property rights otherwise relating to such Products or services.
11.5. You will comply with all terms and conditions of the specific license agreement for Products and any services you obtain through this website, including, without limitation, all confidentiality obligations and restrictions on resale, use, reverse engineering, copying, making, modifying, improving, sublicensing and transfer of such licensed Products or services.
11.6. For questions regarding ABXYLUTE’s Intellectual Property Policy
12. Personal Data
12.1. By making a purchase via ABXYLUTE.com, you consent to your Personal Data being transferred and stored (both electronically and manually) by ABXYLUTE and by ABXYLUTE’s affiliates and business partner(s) located both inside and outside of the U.S. for the purposes of processing payment, fulfilling your order and/or maintaining sales and customer records. You hereby agree that such usages shall constitute legitimate business needs of ABXYLUTE.
12.2. For the purposes of this Agreement, “Personal Data” may include, but is not limited to, name, date of birth, customer and Product ID number(s), home address, contact information and purchase history on ABXYLUTE.com. Your Personal Data shall be retained by ABXYLUTE and its partners only for as long as it may be needed.
12.3. ABXYLUTE undertakes to ensure that it and its partners will take appropriate measures to protect your Personal Data and use your Personal Data only for the purposes described in these Terms of Sale.
12.4. You further agree that ABXYLUTE shall not be held liable for the misuse of your Personal Data by any third party arising from or relating to your usage of this website. ABXYLUTE may provide your Personal Information to third parties to detect, prevent or otherwise address fraud, security or technical issues.
12.5. Please refer to our Privacy Policy for more information.
13. Resale and Export Control
13.1. You represent and warrant that the Product(s) and/or any service purchased by you through this website are for your own personal or household use only (including gifts to others), and not for resale or export.
13.2. The Products may be subject to export controls. You agree to comply with applicable export control laws of the United States, the United Nations Organization, the member states of the European Union and the European Free Trade Association, and any other country/region not in conflict with U.S. law with respect to the export, re-export, transfer, sale or resale of the Products.
13.3. Without limiting the foregoing, you shall under no circumstances sell, offer for sale, ship to, transship to, or otherwise make the Products available, directly or indirectly, in contravention of (and/or in any region subject to) U.S. sanctions or export restrictions, or export, directly or indirectly, the Products to any regions requiring an export license or other governmental approval without first obtaining such license or other required governmental approval.
14. Dispute Resolution and Binding Arbitration
14.1. YOU AND ABXYLUTE ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT AS FURTHER SET FORTH BELOW IN THIS SECTION 14) OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
14.2. EXCEPT AS OTHERWISE PROVIDED BELOW, ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US, ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THIS WEBSITE AND/OR TO THESE TERMS OF SALE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
14.3. This agreement to arbitrate is subject to and governed by the Federal Arbitration Act (“FAA”) and is intended to be broadly interpreted. This agreement to arbitrate applies (i) whether your dispute is with ABXYLUTE, its subsidiaries, affiliates or parent company, or any suppliers or service providers involved with the Product(s) and/or any service purchased through this website, and their officers, directors, employees, agents and successors; and (ii) regardless of the legal theory on which you base your claim (such as breach of warranty, breach of contract, negligence, etc.).
14.4. For disputes or claims relating to Products and/or any service purchased through this website, this agreement to arbitrate supersedes any terms regarding dispute resolution in any other agreement between you and ABXYLUTE and contains the whole agreement between us with respect to any such disputes or claims.
14.5. The arbitration shall be conducted by a single arbitrator and will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures applicable to consumer disputes, and in accordance with the Expedited Procedures in those Rules, unless the parties agree to JAMS’ Streamlined Arbitration Rules and Procedures (collectively, the “JAMS Rules”), except as modified by this Section 14. The JAMS Rules are available online at www.jamsadr.com.
14.6. We each agree to try to resolve any dispute without arbitration, but if we are unable to do so within a reasonable period (which, in any event, shall not exceed sixty (60) days), you or ABXYLUTE may initiate an arbitration proceeding by sending a written notice entitled “Demand for Arbitration” to the other party by certified U.S. Mail or by Federal Express (or international equivalent) or, if the other party hasn’t provided a current physical address, by electronic mail.
14.7. Unless the parties agree otherwise, any arbitration hearing will take place (at your option) in Dallas County, Texas or in your hometown area . However, subject to the approval of the arbitrator and ABXYLUTE, you may decide whether you want the arbitration to be conducted instead: (i) based on written submissions without an oral hearing, or (ii) through a telephone or videoconference hearing.
14.8. All issues in dispute are for the arbitrator to decide. Except as otherwise specifically provided in Section 14.12 below, the arbitrator will have exclusive authority to resolve any dispute relating to the scope, arbitrability and/or enforceability of this agreement to arbitrate, whether a dispute can be arbitrated, or the interpretation of this agreement to arbitrate, including any unconscionability challenge or any other challenge to the effect that these arbitration provisions or Terms of Sale are void, voidable or otherwise invalid. The arbitrator shall, in accordance with the JAMS Rules, allow for the discovery or exchange of non-privileged information relevant to the dispute, and shall enter orders as appropriate in order to protect the parties’ trade secrets or confidential information. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
14.9. If you are the one who commences arbitration, ABXYLUTE will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the JAMS Rules will determine who pays that fee. If the arbitrator decides that either the substance of your claim or the remedy you asked for is frivolous or brought for an improper purpose, the parties will use the JAMS Rules to determine whether you or ABXYLUTE is responsible for the filing, administrative and arbitrator fees. Subject to the foregoing, ABXYLUTE will be responsible for paying such fees.
14.10. The foregoing notwithstanding, if a party’s claim is within the jurisdiction of a small claims court, either party may choose to take the claim to that court instead of arbitration as follows: (i) the parties may take their claims to small claims court without first filing with JAMS; (ii) after a case is filed with JAMS, but before the issuance of a Commencement Letter (as such term is defined in the JAMS Rules), a party can send written notice to the opposing party and JAMS that it wants the case decided by a small claims court (after receiving this notice, JAMS will administratively close the case); and (iii) after the issuance of a Commencement Letter, the parties may mutually agree in writing that the arbitration case should be closed and the dispute decided in small claims court. The small-claims court proceeding will be limited solely to your individual dispute or controversy and will not be consolidated with any other action or conducted on a class-wide or class-action basis.
14.11. The forgoing notwithstanding, you or ABXYLUTE may file suit in court to address an intellectual property rights infringement claim (as set forth in Section 15.6 below).
14.12. You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR ABXYLUTE WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of you, the individual party seeking relief, and only to the extent necessary to provide relief that is warranted by your individual claim, and not any remedy that affects other ABXYLUTE customers. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction. If a court decides that applicable law precludes enforcement of any of the limitations set forth in this Section 14.12 as to a particular claim for relief or remedy (such as declaratory or injunctive relief), then that claim or remedy (and only that claim or remedy) must be severed from the arbitration and must be brought in the state or federal courts located in Dallas County, Texas, while the remaining claims and remedies (such as individual damages or restitution) will still be resolved through binding arbitration.
14.13. Subject to the provisions of Section 14.12 above, if any provision of this agreement to arbitrate is found unenforceable, that provision will be severed and the balance of this agreement to arbitrate will remain in full force and effect.
14.14. Subject to the provisions of Section 14.12 above, (i) the substance of any disputes where public injunctive relief is available shall be decided by the arbitrator; and (ii) only if the claimant succeeds on its claim permitting the remedy of public injunction may such claimant request that a court of competent jurisdiction enter an injunction in conformity with the arbitral award.
15. Miscellaneous
15.1. Severability – Each term and provision of these Terms of Sale shall be valid and enforceable to the fullest extent permitted by law. If any provision hereof, in whole or in part, is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or portion thereof shall be deemed deleted and replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid, illegal or unenforceable provision. Any modification to or deletion of a provision hereof, in whole or in part, under this clause shall not affect the validity and enforceability of the rest of these Terms of Sale.
15.2. Rights of Third Parties – These Terms of Sale do not and are not intended to confer any rights or remedies upon any person or entity other than you and ABXYLUTE.
15.3. Assignment – You may not voluntarily, or by operation of law, assign or otherwise transfer any of your rights or delegate any of your obligations under these Terms of Sale without the prior written consent of ABXYLUTE. Any purported assignment or delegation in violation of this Section 15.3 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms of Sale. ABXYLUTE, however, may transfer its rights and obligations under these Terms of Sale to another organization.
15.4. No Waivers – Our failure to enforce any right or provision of these Terms of Sale will not constitute a continuing or subsequent waiver of future enforcement of the same or other rights or provisions. Our waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of ABXYLUTE.
15.5. Force Majeure – Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted or committed a breach, for any failure or delay in fulfilling or performing any term hereunder (except for your failure to make payments to us when due) when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s reasonable control and not involving any fault or negligence of the impacted party, including, without limitation: (i) Acts of God; (ii) flood, fire, earthquake, other natural disasters or explosion; (iii) war, acts of terrorism, riot or other civil unrest; (iv) government order, law or actions; (v) embargoes or blockades in effect on or after the effective date hereof; (vi) strikes, labor stoppages or slowdowns or other industrial disturbances; (vii) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (viii) other similar events beyond the reasonable control of the impacted party.
15.6. Governing Law and Judicial Forum for Non-Arbitrable Disputes –All matters arising out of or relating to these Term of Sale are governed by and construed in accordance with the FAA and (only to the extent not inconsistent with the provisions of Section 14 above and the substantive and procedural provisions of the FAA) the internal laws of the State of Texas, without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas. The arbitrator will not be bound by rulings in other arbitrations involving ABXYLUTE to which you are not a party. Other than claims that must be resolved through binding arbitration (or that may be brought in small claims court), any disputes relating to these Terms of Sale or the Products and any services made available on this website will be litigated exclusively in the federal or state courts of Dallas County, Texas; the parties consent to personal and exclusive jurisdiction in these courts. Notwithstanding the foregoing, other than claims that must be resolved through binding arbitration (or that may be brought in small claims court), ABXYLUTE reserves the right to institute proceedings and/or apply for injunctive remedies (or any equivalent type of urgent legal relief) against the customer in the courts having jurisdiction in the place where the customer has its seat or in any jurisdiction where harm to ABXYLUTE is occurring.
15.7. Captions, Pronouns and Interpretation – The captions of sections of these Terms of Sale are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of these Terms of Sale. Any pronouns or references used herein shall be deemed to include the masculine, feminine, nonbinary or neutral genders as appropriate. Any expression in the singular or the plural shall, if appropriate in the context, include both the singular and the plural. These Terms of Sale shall be construed according to the fair meaning of their language and (to the extent legally permissible) the rule of construction, to the effect that ambiguities are to be resolved against the drafting party, will not be employed in interpreting these Terms of Sale.
15.8. Entire Agreement – Our order confirmation email to you, these Terms of Sale, any license agreement relating to the Product(s) and/or any service you obtain on or through this website, our Intellectual Property Policy and our Privacy Policy will be deemed the final and integrated agreement between you and us on the matters contained in these Terms of Sale.
16. Changes
16.1. We reserve the right to update these Terms of Sale without prior notification at any time, in our sole discretion, by updating our website accordingly. Each updated version of these Terms of Sale, at the tail end thereof, will reference the date it was last updated.
16.2. Subject to Section 16.3 below, you will be bound by the version of these Terms of Sale in force at the time of purchase. You are responsible for reviewing the latest version of these Terms of Sale each time you order a Product or service from this website.
16.3. In any event, ABXYLUTE may amend the Terms of Sale to which you are subject if (i) we are required to make such changes under applicable law or regulations; and/or (ii) we notify you of the change to these Terms of Sale before we accept your order.
17. Notices
17.1. We may provide any notice to you under these Terms of Sale by: (i) sending a message to the email or postal address you provide to us when placing an order, or (ii) by updating this website. Notices sent by email will be effective twenty-four (24) hours after the e-mail is sent and notices we provide by posting to our website will be effective immediately upon posting. It is your responsibility to keep your email address current with us. Notices sent to your postal address will be effective three (3) business days after the date of posting.
17.2. To give us notice under these Terms of Sale, you must contact us by email at our email address indicated in Section 18 (‘Contact Us’). Notices will be effective twenty-four (24) hours after the email is sent. We may update our email address for notices to us by posting a notice on this website.
17.3. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
17.4. Availability of Replacement Parts. ABXYLUTE confirm replacement parts and/or services are available for a minimum of 3 years after the end of production of the product.
18. Contact Us
Please email or otherwise contact us by clicking the ‘Contact Us’ link below if you have any questions about these Terms of Sale.
This document was last updated on October 19, 2022