TERMS AND CONDTIONS FOR THE SALE OF GOODS AND SERVICES

LAST UPDATED DATE: September 5, 2023
 

THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
THESE TERMS REQUIRE THE USE OF MEDIATION AND ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.
BY PLACING AN ORDER FOR PRODUCTS OR SERVICES EITHER DIRECTLY WITH US OR FROM THIS WEBSITE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. YOU AFFIRM THAT IF YOU PLACE AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY, YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO THESE TERMS.
YOU MAY NOT ORDER OR OBTAIN PRODUCTS DIRECTLY FROM US OR FROM THIS WEBSITE IF YOU (i) DO NOT AGREE TO THESE TERMS, (ii) ARE NOT THE OLDER OF (A) AT LEAST 18 YEARS OF AGE OR (B) LEGAL AGE TO FORM A BINDING CONTRACT WITH WELDING EVOLUTION INC., OR (iii) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE’S CONTENTS, PRODUCTS OR SERVICES BY APPLICABLE LAW.
 

These terms and conditions (these “Terms”) apply to the purchase and sale of products and services through www.weldingevolution.com (the “Site”). These Terms are subject to change by Welding Evolution Inc. (referred to as “us,” “we,” or “our” as the context may require) without prior written notice at any time, in our sole discretion. Any changes to these Terms will be in effect as of the “Last Updated Date” referenced on the Site. You should review these Terms as they will govern the sale of products and services to you by us. Your continued use of this Site after the “Last Updated Date” will constitute your acceptance of and agreement to such changes.
 

These Terms are an integral part of the general Site’s Terms & Conditions, www.weldingevolution.com/terms-and-conditions, that apply generally to the use of our Site. You should also carefully review our Privacy Policy, www.weldingevolution.com/privacy-page, before placing an order for products or services through this Site (see Section 9).
 

1.    Order Acceptance and Cancellation. You agree that your purchase order sent via email or telephonically to us is an offer to buy, under these Terms, all products and services listed in your order. All orders must be accepted by us or we will not be obligated to sell the products or services to you. We may choose not to accept orders at our sole discretion, even after we send you a confirmation email with your order number and details of the items you have ordered.
 

2.    Prices and Payment Terms.
(a)    All prices, discounts, and promotions posted on this Site are subject to change without notice. The price charged for a product or service will be the price advertised on this Site at the time the order is placed, subject to the terms of any promotions or discounts that may be applicable. The price charged will be clearly stated in your order confirmation email. Price increases will only apply to orders placed after the time of the increase. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your total price and will be itemized in your shopping cart and in your order confirmation email. We strive to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
(b)    Terms of payment are within our sole discretion. We accept credit cards and checks for all purchases. Invoices are due and payable within 30 days from the invoice date. Should you pay via credit card, you represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Site at the time of your order; and (v) you will pay the 3.8% service fee thereon.
(c)    For new customers, we require 50% of the total order to be paid for in advance. The remaining balance will be due at the time of delivery of the product.
(d)    For payments made after the invoice due date, we may charge a late payment penalty of 1.5% per month on undisputed amounts, or the maximum rate permitted by law, whichever is less. Without waiving any of our other rights or remedies, we may refuse additional orders and suspend any services until all overdue amounts are paid in full. 
(e)    If a payment tendered by you is returned for insufficient funds, uncollected funds, or stopped payment, you shall be charged a $25.00 service fee.
 

3.    Shipments; Delivery; Title and Risk of Loss.
(a)    We will arrange for shipment of the products to you. You will pay all shipping and handling charges unless otherwise specified in the order confirmation.
(b)    For deliveries, 30 miles or more from our manufacturing facility, title and risk of loss pass to you upon our transfer of the products to the carrier of your choice. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments or damage to products during shipment.
(c)    For deliveries within a 30-mile radius of our manufacturing facility made by the Company’s delivery vehicles, title and risk of lass pass to you upon delivery of the products to the location designated by you. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
 

4.    No Returns and Refunds. Other than as provided in Section 5, Limited Warranty, WE OFFER NO REFUNDS ON ANY PRODUCTS. ALL SALES ARE FINAL.
 

5.    Limited Warranty.
THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE. WE WARRANT THAT DURING THE WARRANTY PERIOD, THE PRODUCT WILL BE FREE FROM DEFECTS IN MATERIALS. TO THE EXTENT SUCH WARRANTIES CANNOT BE DISCLAIMED UNDER THE LAWS OF YOUR JURISDICTION, WE LIMIT THE DURATION AND REMEDIES OF SUCH WARRANTIES TO THE DURATION OF THIS EXPRESS LIMITED WARRANTY. OUR RESPONSIBILITY FOR DEFECTIVE GOODS IS LIMITED TO REPAIR, REPLACEMENT, OR REFUND AS DESCRIBED BELOW IN THIS WARRANTY STATEMENT.
(a)    This limited warranty only extends to the customer who originally purchased the product. It does not extend to any subsequent owner or other transferee of the product.
(b)    This limited warranty only covers defects in materials and workmanship of the product for a period of 60 days from the date of shipment; provided, however, for manufacturers defect only, we warrant to you that for a period of two (2) years from the date of shipment (“Warranty Period”) of the products purchased directly from us or through the Site will materially conform to our published specifications in effect as of the date of manufacture and be free from material defects in material and workmanship. The Warranty Period is not extended if we repair or replace the product. We may change the availability of this limited warranty at our discretion, but any changes will not be retroactive.
(c)    We warrant to you that we shall perform the services purchased directly with us or through the Site using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet our obligations under these Terms.
(d)    EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 5(a) AND SECTION 5(b), WE MAKE NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS OR SERVICES PURCHASED DIRECTLY WITH US OR THROUGH THE SITE, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(e)    Products used in the installation of our products or manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the products. Third Party Products are not covered by the warranty in Section 5(a). For the avoidance of doubt, WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(f)    We shall not be liable for a breach of the warranties set forth in Section 5(a) and Section 5(b) unless: (i) you give written notice of the defective products or services, as the case may be, reasonably described, to us within 30 days of the time when you discover or ought to have discovered the defect; (ii) if applicable, we are given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 5(a) to examine such products and you (if we so request) return such products to our place of business at your cost for the examination to take place there; and (iii) we reasonably verify your claim that the products or services are defective.
(g)    We shall not be liable for a breach of the warranty set forth in Section 5(a) and Section 5(b) if: (i) you make any further use of such products after you give such notice; (ii) the defect arises due to your negligence, reckless disregard, willful misconduct or failure to follow our oral or written instructions as to the storage, installation, commissioning, use, or preventative maintenance of the products (including, without limitation, routine greasing and oiling of hinges, latches, and other moving components and mechanisms); (iii) you alter, modify, or repair such products without our prior written consent; (iv) transportation of the product; or (v) external causes such as accidents, abuse, or other actions or events beyond our reasonable control.
(h)    Subject to Section 5(e) and Section 5(f) above, with respect to any such products during the Warranty Period, we shall, in our sole discretion, either: (i) repair or replace such products (or the defective part) or (ii) credit or refund the amounts paid by you for such products provided that, if we so request, you shall, at your expense, return such products to us.
(i)    Subject to Section 5(e) and Section 5(f) above, with respect to any services subject to a claim under the warranty set forth in Section 5(b), we shall, in our sole discretion, (i) repair or re-perform the applicable services or (ii) credit or refund the amounts paid by you for such services.
(j)    THE REMEDIES SET FORTH IN SECTION 5(g) AND SECTION 5(h) SHALL BE THE YOUR SOLE AND EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 5(a) AND SECTION 5(b).
 

6.    Limitation of Liability.
(a)    IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b)    IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID BY YOU FOR THE PRODUCTS AND SERVICES SOLD DIRECTLY BY US OR THROUGH THE SITE.
(c)    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)    The limitation of liability set forth in Section 6(b) shall not apply to (i) liability resulting from our gross negligence or willful misconduct and (ii) death or bodily injury resulting directly from our acts or omissions.
 

7.    Goods Not for Resale or Export. You represent and warrant that you are buying products or services from the Site for your own use only, and not for resale or export. You further represent and warrant that all purchases are intended for final delivery to locations within the US.
 

8.    Intellectual Property Use and Ownership. You acknowledge and agree that: Welding Evolution, Inc. is and will remain the sole and exclusive owner of all intellectual property rights in and to each product and service made available by us or on this Site and any related specifications, instructions, documentation, or other materials, including, but not limited to, all related copyrights, patents, trademarks, and other intellectual property rights. You do not and will not have or acquire any ownership of these intellectual property rights in or to the products or services made available by us or through this Site, or of any intellectual property rights relating to those products or services.
 

9.    Privacy. We respect your privacy and are committed to protecting it. Our Privacy Policy, www.weldingevolution.com/privacy-page, governs the processing of all personal data collected from you in connection with your purchase of products or services through the Site.
 

10.    Indemnification. You agree to protect, defend, indemnify, and hold harmless Welding Evolution Inc. and its respective directors, officers, shareholders, employees, subcontractors, counsel, representatives, agents, successors and assigns from and against any loss, liability, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expense including, but not limited to attorneys’ fees incurred in connection with a claim, action, demand, or legal proceeding brought by a third-party (“Claim”). Such Claims may arise from or relate to (i) a breach by you of any of its obligations under this Agreement, (ii) any negligence, gross negligence, including reckless or willful misconduct by you, (iii) any failure by you to comply with any applicable federal, state, or local laws, regulations, or codes in the performance of your obligations under this Agreement; or (iv) any bodily injury, illness, disability, death, personal property damage, or real property damage arising out of your business operations. The parties shall cooperate with the other in a reasonable manner to facilitate the defense of such Claim. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. Without our prior written consent, you will not enter into any settlement that (a) would be in our name, (b) imposes any liability or obligation, or an admission of fault or guilt, on us, or (c) enjoins us. This indemnification obligation will survive termination of this Agreement.
 

11.    Force Majeure.
(a)    No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any of your obligations to make payments to us hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (i) acts of God; (ii) flood, fire, earthquake, epidemics or pandemics, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or action; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns or other industrial disturbances; (viii) 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 (ix) other similar events beyond the reasonable control of the Impacted Party.
(b)    The Impacted Party shall give notice within 30 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 90 consecutive days following written notice given by it under this Section 10, either party may thereafter terminate this Agreement upon 15 days’ written notice.
 

12.    Governing Law and Jurisdiction. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.
 

13.    Mediation and Binding Arbitration. You and Welding Evolution Inc. shall resolve any dispute, controversy, or claim arising out of or relating to these Terms, or the breach, termination, enforcement, interpretation, or invalidity hereof, including the determination of the scope or applicability of this Agreement to arbitrate, whether arising in contract, tort, or otherwise, whether pre-existing or future, including statutory, consumer protection, common law, intentional tort, injunctive and equitable relief claims (each, a “Dispute”) in the County of Los Angeles in the State of California, according to the procedures set forth herein. Further, mediation is an express condition precedent to final and binding arbitration of the Dispute.
(a)    Should a Dispute arise, you and Welding Evolution Inc. agree to submit the Dispute for mediation with the American Arbitration Association (“AAA”), www.adr.org, under its Commercial Mediation Procedure. You and Welding Evolution Inc. shall cooperate with AAA and with one another in selecting a neutral mediator from the AAA panel of neutrals and in scheduling the mediation proceedings. Unless otherwise required by applicable law, you and Welding Evolution Inc. agree to participate in the mediation in good faith, that each will share equally in its costs, and that each will pay their own attorneys’ fees.
(b)    If the Dispute is not resolved by mediation or a party refuses to mediate in good faith, ANY DISPUTE BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES FROM US OR THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. The arbitration will be administered by AAA under its Commercial Arbitration Rule. The parties shall select a sole arbitrator by mutual agreement through AAA within 60 days of the date the demand for arbitration is filed. If the parties are unable to agree on the selection of an arbitrator within such time, the administrator of AAA shall select an independent arbitrator.  
The sole arbitrator will have exclusive authority to resolve any Dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. 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.
 

By agreeing to this provision to mediate and arbitrate, THE PARTIES EACH EXPRESSLY WAIVE THE RIGHT TO A JURY TRIAL AND AGREE THAT THE ARBITRATOR’S AWARD SHALL BE FINAL AND BINDING ON THE PARTIES.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced.
 

14.    Assignment. You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section 13 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
 

15.    No Waivers. The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Welding Evolution Inc.
 

16.    No Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person or entity other than you.
 

17.    Notices.
(a)    To You. We may provide any notice to you under these Terms by: (i) sending a message to the e-mail address you provide or (ii) posting to the Site. Notices sent by e-mail will be effective when we send the e-mail and notices we provide by posting will be effective upon posting. It is your responsibility to keep your e-mail address current.
(b)    To Us. To give us notice under these Terms, you must contact us as follows: (i) by e-mail to Mario@weldingevolution.com; or (ii) by personal delivery, overnight courier or registered or certified mail to 1700 1st Street, San Fernando, California 91340. We may update the e-mail or address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by e-mail transmission or overnight courier will be effective 1 business day if sent during normal business hours, and 2 business days if sent afterhours. Notices provided by registered or certified mail will be effective 5 business days after they are sent.
 

18.    Severability. If any provision of these Terms is invalid, illegal, void, or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
 

19.    Entire Agreement. These Terms, our Site’s Terms & Conditions and our Privacy Policy will be deemed the final and integrated agreement between you and us on the matters contained in these Terms.

 

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