Terms of Sale
DUNN-EDWARDS FOUNDATION
CONSUMER ONLINE TERMS OF SALE (COTOS)
1. Covered Sales. These Consumer Online Terms of Sale (“Consumer Online Terms of Sale” or “COTOS”) govern all sales by Dunn-Edwards Foundation, a California nonprofit public benefit corporation (“Foundation,” “us,” or “we”) of Products that are ordered by customers through Foundation’s website using the “Consumers shopping experience.” For purposes of this COTOS, “Customer” or “you” means a customer that purchases Products from Foundation through a transaction that is governed by this COTOS.
a. Controlling Agreement. This COTOS shall control over any conflicting terms in any Order or any other document or communication from Customer. Neither Foundation’s acknowledgment of an Order or other document or communication from Customer nor Foundation’s failure to object to conflicting terms in an Order or other Customer document shall be deemed an acceptance of any conflicting terms or a waiver of the provisions of this COTOS.
b. Privacy Policy. Customer shall be bound by Foundation’s Privacy Policy (the “Privacy Policy”) (found at https://www.dunnedwards.com/about/privacy policy), in connection with any Customer access to or use of Foundation’s website; any transactions that Customer may conduct thereon, or any other matters covered by the Privacy Policy.
2. Definitions. For purposes of this COTOS, the following terms (when capitalized) shall have the meanings indicated:
a. “Accepted Order” shall mean an Order that has been accepted by Foundation’s (i) acceptance of payment for the Products, or (ii) delivery or shipment of the Products to Customer.
b. “Distributed Products” shall mean all Products that are distributed by Foundation, but not manufactured by Foundation or Dunn-Edwards Corporation.
c. “Manufactured Products” shall mean all Products that are manufactured by Foundation or Dunn-Edwards Corporation.
d. “Order Acceptance” shall mean Foundation’s acceptance of payment for an Order for Products.
e. “Products” shall mean all products that are sold by Foundation through Foundation’s website using the “Consumers shopping experience,” including both Manufactured Products and Distributed Products.
f. “Order” shall mean a Customer order for Products.
3. Ordering Procedure. Customer submits an Order for Products to Foundation by clicking “Submit Order” for the Products in question on Foundation’s website. Foundation accepts such order when it accepts Customer’s payment for same or delivers or ships product.
4. Order Cancellation/Modification.
a. Cancellation by Customer. Customer shall have the right to cancel or modify any Order by re-entering the Order and canceling or modifying same on Foundation’s website at any time within two hours after submitting the Order. After the expiration of such two-hour window, Orders may not be cancelled or modified.
b. Cancellation by Foundation. Foundation may cancel any Order at any time, even if it has been accepted by Foundation, if Foundation believes that the Order violates applicable law, including any law that requires proof of identity or age in order to purchase a particular Product.
5. Shipping and Delivery Terms.
a. Shipping and Delivery Terms. All Products covered by any Accepted Order shall be shipped by Foundation to the “ship to” location specified in the Order via common carrier. Any freight charges to be borne by Customer shall be assessed to and paid by Customer upon acceptance of Customer’s Order.
b. Time of Delivery. Delivery shall be deemed complete, and title and risk of loss shall be deemed to pass from Foundation to Customer, when the Products are dropped off by the common carrier at the “ship to” location specified in the Order. Foundation shall endeavor to effect delivery of the Products within the time period specified at the time the Order was submitted. However, in no event shall Foundation be liable to Customer for any damages that Customer may suffer due to Foundation’s failure to deliver any Products on a timely basis.
6. Returns. Any Products purchased by Customer from Dunn-Edwards that do not conform to the limited warranty set forth in Section 12 below (“Damaged Products”) may be returned to Foundation provided that the return meets the terms and conditions set forth in this Section 6.a. Damaged Products may be returned by the original Customer only, and all returns must be made within 30 days after the delivery of the Damaged Products in question to Customer. The full purchase price of any Damaged Products that are returned to Foundation in conformity with the return policy stated in this Section 6.a will be credited to Customer’s credit card or other payment account within ___ days after Foundation’s receipt of the returned Damaged Products, or, upon Customer’s request, Foundation will ship replacement Products to Customer.
7. Force Majeure. For purposes of this COTOS, “Force Majeure Events” shall mean: (i) inclement weather, earthquakes, fire, strikes or actions by labor unions, accidents, delays by carriers, shortages of materials or labor, and other delays or causes beyond Foundation’s reasonable control; or (ii) acts or omissions of Customer. Foundation shall not be liable for any failure or delay in filling any Accepted Order to the extent that the failure or delay is due to a Force Majeure Event, or due to incomplete or inaccurate information being supplied in the Order (such as, for example, partial or incorrect addresses or Product descriptions)
8. Pricing. The prices for all Products sold to Customer shall be the prices specified on the Consumers shopping experience portion of Foundation’s website at the time that Customer’s Order is submitted. It is understood and agreed that Foundation may change the prices specified on the Consumers shopping experience portion of Foundation’s website at any time and from time to time, without prior notice of any kind.
9. Sales Tax. Customer shall be charged sales tax on all Products purchased by Customer. Foundation shall have the right to charge Customer for any sales tax owing with respect to any Products purchased by Customer that was not appropriately charged at the time of sale.
10. Payment. Foundation accepts the credit cards and/or other forms of payment that are specified in the Consumers shopping experience portion of Foundation’s website.
11. Disputes. Should Customer wish to dispute any Foundation charge for any reason (such as incorrect pricing, incorrect Products, failure to deliver Products, etc.), Customer must notify Foundation of the dispute in writing within 60 days of the date the Order is accepted. Customer’s failure to notify Foundation of the dispute in writing before the expiration of the 60-day period shall be deemed a binding acknowledgment by Customer that (i) the charge is correct, and (ii) Customer has received delivery of all Products that are covered by the charge.
12. Standard Limited Warranty and Exclusive Remedy.
a. Standard Limited Warranty. Foundation warrants that any Manufactured Products that are sold to Customer will, on the date of their delivery to Customer, (i) be new and undamaged and (iii) be merchantable and fit for the purposes for which they are intended. This warranty does not cover normal color fading, or other wear and tear of Manufactured Products or Distributed Products.
b. DISCLAIMER OF ADDITIONAL WARRANTIES. EXCEPT AS SET FORTH IN SECTION 12.a ABOVE, FOUNDATION MAKES NO WARRANTIES WITH RESPECT TO ANY MANUFACTURED PRODUCTS, AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY DISTRIBUTED PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. However, nothing contained in this COTOS shall limit or affect any claims that Customer might otherwise have against the manufacturers of any Distributed Products, whether under any limited warranties offered by such manufacturers or otherwise.
c. EXCLUSIVE REMEDY. IN THE EVENT OF ANY BREACH OF EXPRESS OR IMPLIED WARRANTY BY FOUNDATION RELATING TO ANY MANUFACTURED PRODUCTS FOUNDATION WILL REPAIR OR REPLACE THE DEFECTIVE PRODUCTS OR, IF AGREEABLE TO BOTH PARTIES, REFUND THE PURCHASE PRICE THEREOF. THIS SECTION 12.c SETS FORTH THE EXCLUSIVE REMEDY FOR ANY BREACH OF EXPRESS OR IMPLIED WARRANTY BY FOUNDATION. IN NO EVENT SHALL FOUNDATION BE LIABLE FOR LABOR, OR FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES. 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.
d. TERM OF WARRANTY. ALL WARRANTIES OF FOUNDATION, WHETHER EXPRESS OR IMPLIED, COMMENCE ON THE DATE OF DELIVERY OF THE PRODUCTS IN QUESTION TO CUSTOMER, AND EXPIRE SIX MONTHS FOLLOWING SUCH DATE. FOUNDATION SHALL HAVE NO LIABILITY FOR BREACH OF ANY WARRANTY, EXPRESS OR IMPLIED UNLESS FOUNDATION IS PROVIDED WITH WRITTEN NOTICE OF THE BREACH DURING THE APPLICABLE WARRANTY PERIOD. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
e. How to Make a Warranty Claim. To make a warranty claim under this Section 12, contact the Foundation at Foundation’s corporate headquarters in Los Angeles, California at 1-888-337-2468.
f. Rights Under State Law. The warranty under this Section 12 gives you specific legal rights, and you may also have other rights which vary from state to state.
g. Returns. Nothing contained in this Section 12 shall limit or affect Customer’s rights to return Products to Foundation pursuant to the terms of Section 6 above.
h. No Resale. Except to the extent expressly stated in a written agreement entered into between Foundation and Customer, all Products that are sold to Customer are sold for end-use by Customer and may not be resold, relabeled, or repackaged.
13. Governing Law. The laws of the State of California, without regard to principles of conflicts of laws, shall govern this COTOS and any dispute that might arise between Customer and Foundation.
14. Disputes; Arbitration.
a. Arbitration. Any controversy or claim arising out of or relating to this COTOS, or the breach thereof, or to any sale of Products by Foundation to Customer, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules in the closest city with a population of over 100,000 to the location where the Products in question were delivered to Customer, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
b. NO CLASS ACTIONS. CUSTOMER MAY ONLY RESOLVE DISPUTES WITH FOUNDATION ON AN INDIVIDUAL BASIS, AND MAY NOT BRING A CLAIM AS A PLAINTIFF, CLASS REPRESENTATIVE, OR CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. CUSTOMER ACKNOWLEDGES AND AGREES THAT CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS OR ACTIONS ARE NOT PERMITTED.
c. NO JURY TRIAL. BOTH FOUNDATION AND CUSTOMER WAIVE ANY RIGHTS THEY MIGHT OTHERWISE HAVE TO A JURY TRIAL.
d. Time for Bringing Claims. Any claim or cause of action by Customer that arises out of Customer’s purchase or use of the Products, this COTOS, or the breach thereof, must be filed within one year after the date that such claim or cause of action arose, or else that claim or cause of action will be permanently barred.
15. Communications and Notices.
a. Phone Communications. Customer’s telephone communications with Foundation, including calls with Foundation’ customer service providers or independent contractors, are routinely monitored and/or recorded. Customer expressly consents, on behalf of Customer itself and other users of Customer’s phone number, to being monitored or recorded. By providing Foundation with a mobile or other phone number as part of Customer’s online ordering or registration or during a service call, Customer expressly authorizes Foundation to contact Customer regarding Customer’s Order or account, for non-telemarketing communications, via text message or telephone, including the use of prerecorded or auto-dialed calls, using that number.
b. Notices to Customer. Foundation may provide notice to Customer under this COTOS by: (i) personal delivery, overnight courier, or first class, registered, or certified mail addressed to Customer at the address that appears on Customer’s Order or is otherwise provided to Foundation by Customer; or (ii) sending an email to Customer. Customer agrees that Foundation may send emails to Customer using the e mail address that Customer provided to Foundation when placing Customer’s Order for Products. Notices provided by personal delivery will be effective upon receipt by Customer. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered, certified, or first class mail will be effective three business days after they are sent. Notices sent by e-mail will be effective when Foundation sends the e-mail. It is Customer’s responsibility to keep Customer’s e-mail address current. Foundation assumes no responsibility for issues resulting from e-mail notification failures.
c. Notices to Foundation. Customer may submit Orders to Foundation in the manner provided in Section 3 of this COTOS. Customer may provide other notices to Foundation under this COTOS by personal delivery, overnight courier, or registered or certified mail addressed to Foundation, 6119 E. Washington Blvd. Office 251m Commerce, CA 90040, Attention: Dunn-Edwards Foundation CEO. Foundation may update the address for notices to it by posting a notice on its website. Notices provided by personal delivery will be effective upon receipt by Foundation. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.