Section 1 – Scope and Application
1.1 These Terms are between you and Ergotron Inc. (“Ergotron”, or “us” or “we” or “our” as required) provided that if a reseller is appointed by Ergotron, Inc. (as identified in the Ergotron Store or in your order confirmation as the seller of record), you will also have a contract with that reseller for such supply pursuant to the additionally applicable reseller Terms of Sale that will also be presented at the time of order, in which case Ergotron, Inc. shall be an express third-party beneficiary such terms, and your order confirmation will have information for you to contact Ergotron, Inc. regarding any issue with your order.
1.2 THESE TERMS APPLY TO ALL OFFERS, SALES AND PURCHASES OF ALL PRODUCTS AND RELATED SERVICES (“PRODUCTS”) THROUGH THE ONLINE STORE AVAILABLE ON WWW.ERGOTRON.COM, THE “ERGOTRON STORE” OR “SITE”. BY ORDERING ANY PRODUCTS THROUGH THE SITE, YOU SIGNIFY YOUR ACCEPTANCE OF AND AGREE TO BE BOUND BY THESE TERMS AND ANY APPLICABLE RESELLER TERMS, AND ANY SALE THROUGH THE SITE IS CONDITIONED ON YOUR ACCEPTANCE OF THE SAME. IF YOU DO NOT AGREE TO ANY OF THESE TERMS OR ANY RESELLER TERMS (IF APPLICABLE), YOU MUST NOT COMPLETE YOUR ORDER.
1.4 We may update or change these Terms at any time without prior notice in our sole discretion. The latest version of the Terms will be posted on the Site.
Section 2 – Order Placement & Acceptance; Online Contracting
2.1 When you place an order to purchase and pay for Products through the Site, you agree that your order is an offer to purchase Products listed in your order that may be accepted or rejected for any reason. You will receive an order confirmation to your registered email detailing Products ordered, but your order will not be accepted until approval by your chosen payment method is received and shipment of ordered Products, at which point you will receive an order acknowledgement (i.e., shipping confirmation) email. ALL ACCEPTED ORDERS ARE FINAL, NON-CANCELABLE AND NON-REFUNDABLE, EXCEPT AS SPECIFIED IN THE RETURN POLICY OUTLINED BELOW.
Section 3 – Prices; Site Errors; Payment
3.1 Prices on the Site are subject to change without notice but will only apply to orders placed after such changes. Prices for Products purchased are those in effect when an order is accepted and will be set out in the order acknowledgment. Unless otherwise indicated on the Site, prices are quoted and will be paid in U.S. dollars. Prices exclude shipping, handling and taxes, which are additional and will be itemized in the order confirmation.
3.2 Materials on the Site may be changed, updated and/or deleted without notice and are subject to correction for technical, clerical or typographical inaccuracies or errors. We will not be responsible for any such inaccuracies or errors and orders placed through the Site may be declined or cancelled for any lawful reason, including without limitation due to the foregoing issues or if a Product is unavailable or out of stock, provided that we will refund prepaid pricing for any such order.
3.3 Payment or pre-authorization of funds by credit card or other payment method accepted by the Site is required before an order will be accepted. Pricing is non-refundable except as specified below.
Section 4 – Delivery and Return
4.1 Shipment will be arranged to you to the shipping address within the 50 United States or the District of Columbia provided in your order. We do not guarantee shipping or delivery dates. Any dates provided are estimates only. We will not be liable for late deliveries or failure to ship complete orders.
4.2 Title and risk of loss to Products passes to you when Products are delivered to the provided address. Any claims for shortages or damages suffered in transit will be waived unless reported pursuant to the Ergotron Store Return Policy.
4.3 If you are not satisfied with your purchase for any reason, please see our Ergotron Store Return Policy. THIS POLICY IS NOT A WARRANTY AND DOES NOT APPLY TO ANY PRODUCTS DESIGNATED ON THE SITE AS NON-RETURNABLE.
Section 5 – LIMITED WARRANTY
5.1 THE LIMITED WARRANTY APPLICABLE TO ERGOTRON® BRANDED PRODUCTS IS MADE AVAILABLE BY ERGOTRON, INC. AND IS DETAILED IN THE WARRANTY POLICY AND IN THE DOCUMENTATION PROVIDED WITH PRODUCTS. The Limited Warranty and its availability are subject to change in our sole discretion, but changes will not be retroactive. The Limited Warranty is available only to the original purchaser of Products from the Site and does not extend to any subsequent or other owner or transferee of the Products. Products are not intended to cure, treat, mitigate or prevent any disease.
Section 6 – WAIVER AND LIMITATION OF LIABILITY; RISK ALLOCATION
6.1 THE LIMITED WARRANTY ABOVE IS THE SOLE AND EXCLUSIVE WARRANTY PROVIDED WITH RESPECT TO PRODUCTS, AND THE REMEDIES DESCRIBED THEREIN ARE YOUR SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH OF THE LIMITED WARRANTY.
6.2 TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW AND EXCEPT FOR THE LIMITED WARRANTY, WE HEREBY DISCLAIM ANY AND ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SOME STATES DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
6.3 AS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU, IN NO EVENT WILL THE AGGREGATE, TOTAL LIABILITY OF ERGOTRON, INC. ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE PRODUCTS EXCEED THE AMOUNTS YOU HAVE PAID FOR YOUR APPLICABLE PURCHASE, AND EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE WILL NOT BE LIABLE FOR ANY LOST PROFITS, COST OF SUBSTITUTE GOODS, OR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY DESCRIPTION IN CONNECTION WITH YOUR PURCHASE OR USE OF ANY PRODUCT, HOWEVER CAUSED AND WHETHER BASED ON CONTRACT, NEGLIGENCE, TORT, WARRANTY, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WE WERE AWARE OR ADVISED OF THE POSSIBILITY OF DAMAGES, IRRESPECTIVE OF THE NUMBER OR NATURE OF CLAIMS, AND EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Section 7 – No Resale; Compliance
7.1 You agree in placing orders through the Site that you are buying Products from the Site for shipment to an address within the 50 United States or the District of Columbia for your own personal or household use, and not for resale or export. You agree that you will not purchase Products for resale or export and that we may refuse or cancel your order if we suspect you are doing so. UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW, THE LIMITED WARRANTY ONLY EXTENDS TO YOU ON THE UNDERSTANDING THAT YOU ARE A USER AND NOT A RESELLER OF THE PRODUCTS. You agree that you will not export or re-export, directly or indirectly, the Products to any destination or person prohibited or restricted by applicable law, including without limitation U.S. export control laws.
7.2 It is your responsibility to understand and comply with all applicable local, state, federal and foreign laws (including minimum age requirements) regarding the purchase, possession and use of Products. You are solely responsible for determining the compatibility of Products with any required equipment. You agree that lack of compatibility does not constitute a defect. Any designs, manufacturing drawings or other information submitted to you remain the exclusive property of Ergotron, Inc. and you shall not without its prior written consent, copy such information or disclose such information to a third party.
Section 8 – Notices
8.1 Unless otherwise specified, please send communications to us under these Terms via email to [email protected]. We may update this notice information by notice on the Site.
8.2 Notices to you under these Terms may be sent by sending a message to the email address you provide or by posting to the Site. Notices sent by email will be effective when sent. Posted notices are effective upon posting. It is your responsibility to keep your email address current.
Section 9 – MANDATORY ARBITRATION AND CLASS ACTION AND JURY TRIAL WAIVER
9.1 In the event that we are not able to resolve a dispute, and with the exception of the claims for injunctive relief by us as described above and to the extent allowed by law, you hereby agree that either you or we may require any dispute, claim, or cause of action (“Claim”) between you and us or any third parties arising out of use of the Site, the Services, and any other actions with us (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory) to be arbitrated on an individual (non-class) basis. However, both parties retain the right to seek relief in a small claims court (or a state court equivalent) for a Claim within the scope of its jurisdiction so long as the small claims action does not seek to certify a class, combine the claims of multiple persons, recover damages in excess of the limit for a small claim under applicable state law or is not transferred, removed, or appealed from small claims court to any different court. Additionally, if you are a California resident, you retain the right to obtain public injunctive relief from any court with proper jurisdiction.
9.2 THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS VERY LIMITED. ADDITIONALLY, ANY ARBITRATION OF A CLAIM WILL BE ON AN INDIVIDUAL BASIS, AND, THEREFORE, YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER IN A CLASS ACTION LAWSUIT. AS PART OF THIS WAIVER, YOU AGREE THAT YOU WAIVE THE RIGHT TO ACT AS A PRIVATE ATTORNEY GENERAL IN AN ARBITRATION; THAT EXCEPT AS OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT, CLAIMS BROUGHT BY OR AGAINST YOU MAY NOT BE JOINED OR CONSOLIDATED WITH CLAIMS BROUGHT BY OR AGAINST ANY OTHER PERSON; AND THE ARBITRATOR SHALL HAVE NO AUTHORITY TO CONDUCT A CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ARBITRATION OR MULTIPLE-PARTY ARBITRATION.
9.3 You and we agree that your use of the Services involves interstate commerce, and that this arbitration agreement shall be interpreted and enforced in accordance with the Federal Arbitration Act (FAA) set forth in Title 9 of the U.S. Code to the fullest extent possible, notwithstanding any state law to the contrary, regardless of the origin or nature of the Claims at issue. The arbitrator must follow, to the extent applicable: (1) the substantive law of the state in which we entered into the transaction giving rise to this arbitration agreement; (2) the applicable statutes of limitations; and (3) claims of privilege recognized at law. The arbitrator will not be bound by federal, state or local rules of procedure and evidence or by state or local laws concerning arbitration proceedings.
9.4 If either you or we elect to arbitrate a Claim, the dispute shall be resolved by binding arbitration administered under the applicable rules of the American Arbitration Association (“AAA”). Either you or we may elect to resolve a particular Claim through arbitration, even if the other party has already initiated litigation in court related to the Claim, by: (a) making written demand for arbitration upon the other party, (b) initiating arbitration against the other party, or (c) filing a motion to compel arbitration in court.
9.5 If this is a consumer-purpose transaction, the applicable rules will be the AAA’s Consumer Arbitration Rules. The applicable AAA rules and other information about arbitrating a claim under AAA, including how to submit a dispute to arbitration, may be obtained by visiting its website at https://www.adr.org/ or by calling 1-800-778-7879. If AAA will not serve as the administrator of the arbitration, and you and we cannot then agree upon a substitute arbitrator, you and we shall request that a court with proper jurisdiction appoint an arbitrator. However, we will abide by the applicable AAA rules regardless of the forum. Arbitration shall be conducted in the county and state where you accepted these Terms, you reside, or another reasonably convenient place to you as determined by the arbitrator, unless applicable laws require another location. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Except as provided in applicable statutes, the arbitrator’s award is not subject to review by the court and it cannot be appealed. The parties will have the option to request and receive a statement of reasons for the arbitration award.
9.6 If you elect to file the arbitration, and this is a consumer-purpose transaction, you will pay the filing fee to the extent required by AAA’s Consumer Arbitration Rules but not to exceed the cost of filing a lawsuit. Any amount above what it would cost you to file a lawsuit, we will pay. All other arbitration fees and expenses shall be allocated to us according to AAA rules. Except for the arbitration fees and expenses, each party shall pay its own costs and fees incurred (including attorneys’ fees), unless the arbitrator allocates them differently in accordance with applicable law. This paragraph applies only if this is a consumer-purpose transaction.
9.7 If any part of this arbitration provision is invalid, all other parts of it remain valid. However, if the class action limitation is invalid, then this arbitration provision is invalid in its entirety, provided that the remaining Terms shall remain in full force and effect. This arbitration provision will survive the termination of your use of the Site, the Services, and any other actions with us.
9.8 You may reject this arbitration provision within thirty (30) days of accepting the Terms by emailing us at [email protected] and including in the subject line “Rejection of Arbitration Provision.”
Section 10 – Governing Law and Venue
10.1 Any dispute arising out of or related to these Terms shall be governed by the internal laws of the State of Minnesota, without regard to or application of its choice of law rules or conflicts-of-laws principles, except that the Arbitration clause above shall be governed by the FAA. In the event the Arbitration provision is found not to apply to you or to a particular claim or dispute, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in Minnesota, and both you and we agree to submit to the personal jurisdiction of the courts located within Minnesota for the purpose of litigating all such claims or disputes.
Section 11 – General
11.1 No amendment to these Terms will be valid unless made in writing and agreed to by Ergotron. These Terms are the final and integrated agreement between you and us with respect to their subject matter. Except as otherwise specifically provided herein, these Terms do not provide any rights or remedies to any person or entity other than you and us. You may not assign your rights or delegate your obligations under these Terms to any other person or entity without our prior written consent, and any attempt to do so without consent is void. If any provision of these Terms is found to be invalid under any applicable law, such provisions shall be deleted without affecting the remaining provisions herein. Our failure to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision, and a waiver of any right or provision will be effective only if in writing and signed by our duly authorized representative.
These Terms of Sales were last revised September 24, 2021.