1. SCOPE AND APPLICATION
1.1 THESE TERMS OF SALE (“TERMS”) CONSITUTE A BINDING LEGAL CONTRACT BETWEEN (A) US, VTB LLC, Lado Ketskhovely 22A, of. 8-04, Krasnoyarsk, Russia,THE SELLER (WITH REFERENCES TO “US”, “WE”, OR “OUR” BEING CONSTRUED ACCORDINGLY), AND (B) YOU, THE PURCHASER (WITH REFERENCES TO “YOU” OR “YOUR” BEING CONSTRUED ACCORDINGLY).
THESE TERMS APPLY TO ALL OFFERS, SALES AND PURCHASES OF THIRD PARTY PRODUCTS (INCLUDING, WITHOUT LIMITATION, HARDWARE, SOFTWARE, LICENSE RIGHTS, AND SERVICE USE RIGHTS RESOLD BY US) (“PRODUCTS”), WHICH OCCUR EITHER (A) THROUGH THE ONLINE STORE ON WHICH WE POST THESE TERMS, OR (B) THROUGH ANY OTHER MEANS THROUGH WHICH WE ENGAGE IN THE SALE OF PRODUCTS, SUCH AS BUT NOT LIMITED TO ORDERS BY PHONE (THE WEBSITE AND SUCH OTHER MEANS, A “VTB COMMERCE SOLUTION”). BY ORDERING ANY PRODUCT THROUGH A VTB COMMERCE SOLUTION OR BY VISITING THIS ONLINE STORE, YOU SIGNIFY YOUR ACCEPTANCE OF THIS AGREEMENT.
1.2 We value our relationship with you and consider our approach to privacy of the information you provide in your use of the VTB Commerce Solution to be an important aspect of that relationship. Our Privacy Statement governs the collection and use of information through the VTB Commerce Solution. By submitting your personally identifiable information to us in relation to your order, you consent to such information being processed to fulfill your order and in accordance with our Privacy Statement. The Privacy Statement is incorporated by reference into and is made a part of this Agreement.
1.3 ALL ORDERS ARE SUBJECT TO YOUR CONSENT TO ANY APPLICABLE LICENSE AGREEMENT OR USAGE TERMS IS DELIVERED WITH, INCLUDED IN, OR PRESENTED IN CONNECTION WITH YOUR PRODUCT. If you do not agree to the license or usage terms once you see them, do not accept them and contact customer service.
1.4 When a customer enters a brick-and-mortar store, the customer is bound by the store rules in effect on the date of his or her visit. Similarly, you are bound by the version of these Terms in effect on the date of each order you place through this VTB Commerce Solution. These Terms may change from time to time, so please review them upon submission of each order, even if you have reviewed them before.
1.5 ALL ACCEPTED ORDERS ARE FINAL, NON-CANCELABLE AND NON-REFUNDABLE, EXCEPT AS SPECIFIED IN THE RETURNS POLICY APPLICABLE TO YOUR PURCHASE.
2. ORDER PLACEMENT AND ACCEPTANCE; ONLINE CONTRACTING
2.1 We attempt to describe the Products available for purchase through the VTB Commerce Solution as accurately as possible. However, we do not warrant that the prices, quotations, anticipated delivery dates, and descriptions made or referred to on the VTB Commerce Solution or any related websites are accurate, complete, reliable, current, or error-free. The prices, quotations and descriptions made on the VTB Commerce Solution are subject to availability, do not constitute an offer and may be withdrawn or revised at any time prior to our express Acceptance of your order (as described below).
2.2 All Product specifications, illustrations, drawings, particulars, dimensions, performance data and other information on the VTB Commerce Solution or related pages, or otherwise made available by us, are intended to represent no more than a general illustration of the Products and do not constitute a warranty or representation by us that the Products will conform with the same.
2.3 While we make every effort to ensure that items appearing on the VTB Commerce Solution are available, we cannot guarantee that all items are in stock or immediately available when you submit your order. We may reject your order (without liability) if we are unable to process or fulfill it. If this is the case, we will refund any prior payment that you have made for that item.
2.4 An order submitted by you only constitutes an offer by you to us to purchase Products subject to these Terms at the price and on the terms stated in the order, and is subject to our subsequent Acceptance (as defined below), irrespective of whether the button or link you press or activate to submit your order to us includes words such as “complete order” or otherwise indicates that it is the final step in completion of your order. Any order confirmation email received by you prior to our Acceptance shall constitute an acknowledgement of our receipt of your offer only, and not an acceptance of your offer.
2.5 You acknowledge and agree that if you are placing an order through a website, by clicking or activating the button or hyperlink to submit your order, you are placing a legally binding offer. You consent to: (i) the use of electronic communications in order to enter into contracts and place orders with us; and (ii) the electronic delivery of notices, policies and records of transactions initiated or completed by you online. You have the right to withdraw your consent to electronic contracting and to electronic delivery, but if you do, we may cancel your order. If you do not consent to receive any notices electronically, you must stop using the VTB Commerce Solution.
2.6 Our acceptance of your order only occurs at such time that we have both (a) dispatched your Product order, and (b) received payment of the purchase price of your order through settlement of funds via your provided credit card or other payment method. We may cancel your order at any time and for any lawful reason prior to Acceptance. Prior to Acceptance, an automatic e-mail acknowledgement of your order may be generated. Please note that any such automatic acknowledgement does not constitute a formal acceptance of your order.
2.7 We may keep records of orders received, acknowledgements, acceptances and other contract records after Acceptance for a period not to exceed the maximum period permitted by law.
2.8 If we have cause to believe that you are unable to pay your debts as they fall due, you fail to pay any amount by the due date or breach any of these Terms, we believe you have engaged in fraud or criminal activity in connection with your use of the VTB Commerce Solution, or we are unable to process payment to the payment method you provided with your offer, then, without prejudice to any of our other rights, we may do any or all of the following: (a) stop any Products in transit to you; (b) suspend further deliveries of Product if on an ongoing basis; and/or (c) cancel any and all other contracts between us and you.
3. PRICING AND PAYMENT TERMS
3.1 Prices do not include shipping and handling, expedited service, or sales taxes, if applicable, which will be added to your total price. You are responsible for any shipping and handling charges and state and local sales or use taxes that may apply to your order. If the price of a Product is obviously incorrect, regardless of whether it is an error in a price posted on the VTB Commerce Solution or otherwise communicated to you, then we reserve the right, at our sole discretion, to cancel your order and refund to you the amount that you paid, regardless of how the error occurred.
3.2 Prices payable for Products are those in effect at the time of Acceptance, unless otherwise expressly agreed. Prices may be indicated on the VTB Commerce Solution or an order acknowledgement but the authoritative price in the event of any discrepancy, is the price that is notified to you on our Acceptance through the charge placed through your selected payment method. Payment shall be made by the payment method selected during your order completion process through the VTB Commerce Solution. We will charge credit or debit cards on dispatch of the Product. We reserve the right to verify and/or authorize credit or debit card payments prior to Acceptance.
3.3 Except as expressly provided elsewhere in these Terms or the VTB Commerce Solution, payment may be taken in full notwithstanding any claim for short delivery or defects.
3.4 No counterclaim or set-off may be deducted from any payment due without our written consent. We may also take action against you for the price of Products at any time after payment has become due even though title or rights to those Products may not yet have passed to you.
3.5 If you elect to use the services of a third party payment or billing provider in connection with your purchase from us, your use of such services will be subject to the third party provider’s own terms and conditions. You may be required to create an account with such third party provider and/or provide that third party provider with your bank account or credit/debit card details. We are not responsible for, and you agree to hold us harmless from and against any liability resulting from, the acts or omissions of any third party payment or billing provider.
3.6 Any extension of credit allowed to you may be changed or withdrawn at any time. Interest shall be chargeable on overdue amounts accruing on a daily basis at the maximum amount permitted under applicable law from the due date for payment until our receipt of the full amount (whether before or after judgment). You shall indemnify us on demand against any out of pocket expenses incurred in relation to recovery of any overdue amounts.
4.1 We will use all commercially reasonable efforts to deliver Products in a timely manner. All Products delivering only by electronic transmission to the e-mail address specified when ordering or via download.
4.2 Where we deliver Products by installments, each installment constitutes a separate contract and any defect in any one or more installments shall not entitle you to repudiate the contract as a whole nor to cancel any subsequent installment.
4.3 Save as otherwise provided in these Terms, risk of loss of or damage to the Products passes to you for Products delivered digitally, upon the provision to you of a download link for Software, or of a license key, via email or other electronic delivery method.
5. REJECTION; PRODUCT WARRANTY
Except as set out above or under any applicable returns policy presented on the VTB Commerce Solution and applicable to your purchase of a Product and subject to any rights you have under applicable law that cannot be excluded or limited by these Terms:
5.1 We shall not be liable for any damage or losses arising from defective installation of the Products; your negligence; improper use; or use in any manner inconsistent with specifications or instructions.
5.2 Where there is a failure to deliver, or any defect in a Product or Service, we may in the case of damage or any defect(s) in the Product and in accordance with any applicable Returns Policy:
(a) Replace the Product upon you returning the Product; or;
(b) Refund the price paid in respect of any Products found to be damaged or defective.
However, your rights of replacement of any Products will (except where agreed otherwise) be negated or rendered void where Products have not been returned together with full details in writing of the alleged defects within 30 days from the date on which such Products were delivered; and/or defects are due (wholly or partially) to mistreatment, improper use or maintenance or installation, or failure to observe any instructions or other directions issued or made available by us in connection with the delivered Products.
5.3 You will have the benefit of warranty provided by VTB Commerce Solution to you in connection with your purchased Products and should refer to the relevant documentation supplied with the Product in this regard.
6. SOFTWARE AND SERVICE USE RIGHTS
6.1 Product supplied is software (“Software”), this Software (a) is licensed to you (and not sold to you) by the VTB Commerce Solution subject to their license agreement or terms included with such Software or presented during your checkout process or software installation process (“License Terms”). In addition:
6.1.1 Such Software may not be copied, adapted, translated, made available, distributed, varied, modified, disassembled, decompiled, reverse engineered or combined with any other software, save to the extent that (i) this is permitted in the License Terms, or (ii) applicable law expressly mandates such a right which cannot legally be excluded by contract.
6.1.2 Save to the extent provided for in any applicable License Terms, your rights of return and/or to a refund under these Terms and any applicable Returns Policy do not apply in the event that you open the Software shrink-wrap and/or break the license seal and/or use the Software.
6.1.3 Except to the extent expressly provided by us in writing or under relevant License Terms, Software is provided ‘as is’ without any warranties, terms or conditions as to quality, fitness for purpose, performance or correspondence with description and we do not offer any warranties or guarantees in relation to Software installation, configuration or error/defect correction. You are advised to refer to End User License Agreement with regards to determining your rights.
7. WAIVER AND LIMITATION OF LIABILITY; RISK ALLOCATION
7.1 YOU UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE PRODUCTS THAT YOU PURCHASE FROM US ARE PROVIDED TO YOU “AS IS,” AND YOUR USE IS AT YOUR OWN RISK. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL 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 JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. UNLESS AGREED OTHERWISE OR REQUIRED BY APPLICABLE LAW, ANY WARRANTIES PROVIDED IN RELATION TO PRODUCTS ONLY EXTEND TO YOU ON THE UNDERSTANDING THAT YOU ARE A USER AND NOT A RESELLER OF THOSE PRODUCTS.
7.2 WE HAVE PRICED PRODUCTS AVAILABLE FOR PURCHASE FROM US UPON THE UNDERSTANDING, AND YOU HEREBY ACKNOWLEDGE THE UNDERSTANDING, THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND WHETHER OR NOT THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE: (a) OUR AGGREGATE LIABILITY (WHETHER FOR BREACH OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY) SHALL IN NO CIRCUMSTANCES EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICABLE PRODUCTS WHICH GIVE RISE TO SUCH LIABILITY; AND (b) NEITHER WE SHALL BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERIVCES, OR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY DESCRIPTION (INCLUDING WITHOUT LIMITATION LOSS OR INTERRUPTION OF BUSNIESS) IN CONNECTION WITH YOUR USE OF THIS SITE OR 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 ADVSED OF THE POSSIBILITY OF DAMAGES, AND IRRESPECTIVE OF THE NUMBER OR NATURE OF CLAIMS.
7.3 NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED IN THESE TERMS LIMIT OUR LIABILITY TO YOU FOR ANY LIABILITY TO THE EXTENT SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF APPLICABLE LAW.
7.4 You agree to defend, indemnify and hold harmless us, our subsidiaries and affiliates, and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of or related to (a) any Products purchased by you in connection with your use of the VTB Commerce Solution (including without limitation your use of any Third Party Service for which you purchase Service Use Rights from us), or (b) the violation of Section 8 of these Terms by you, your employees, consultants, agents, distributors, or customers.
7.5 To the fullest extent permitted by law and save where expressly set out in any License Terms or elsewhere, we shall have no liability to you in the event of the Products infringing or being alleged to infringe the proprietary rights of any third party.
8. EXPORT & CUSTOMS DUTIES
Each Product and any related items (including software, technology and technical information) sold, exported, transferred, supplied or licensed by us may be subject to and governed by the laws of the Russian Federation and other countries. You are required to comply with all applicable laws relating to the export, re-export, transfer, use, or import of any Product or related items. Diversion contrary to applicable law is prohibited. Notwithstanding any other request or agreement to the contrary, neither you nor VTB Commerce Solution shall take or be required to take any action prohibited or penalized under law.
9. AGREEMENT TO ARBITRATE
9.1 We will make every reasonable effort to resolve any disagreements that you have with us. In the event that we cannot resolve a disagreement to your satisfaction (or if we cannot informally resolve a concern we may have with you after attempting to do so informally), then you and we agree that except as expressly provided in Section 10.2 below, any claim, dispute, or controversy you may have against us arising out of, relating to, or connected in any way with these Terms, the VTB Commerce Solution, or the purchase or attempt to purchase of any Products through the VTB Commerce Solution shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by the AAA, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this agreement to arbitrate in this Section 10 (“Rules and Procedures”). The AAA’s rules, and a form for initiating arbitration proceedings, are available on the AAA’s site at http://www.adr.org. The language of any dispute resolution procedure or any proceedings will be Russian.
9.2 This Section 10 applies to all consumers to the fullest extent allowable by law. The disputes governed by these procedures in this Section 10 include without limitation (a) claims arising out of or relating to any aspect of the relationship between you and us; (b) claims that arose out of your use of the VTB Commerce Solution; and (c) claims currently the subject of a purported class action litigation in which you are not a member of a certified class. However, the dispute resolution procedure specifically does not apply to (i) a claim relating to the enforcement or validity of your or our intellectual property rights; (ii) a claim relating to an allegation of theft, piracy, or unauthorized use; or (iii) claims for which class action litigation can be brought.
9.3 YOU AND WE BOTH AGREE THAT (A) EACH OF US CAN ONLY BRING CLAIMS AGAINST THE OTHER ON AN INDIVIDUAL BASIS AND THERE SHALL BE NO AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS OR REPRESENTATIVE BASIS; (B) ARBITRATION CAN DECIDE ONLY YOUR AND/OR OUR INDIVIDUAL CLAIMS, AND THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S); AND (C) THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.
9.4 If the value of the relief sought is $1,000 or less, either you or we may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and us (subject to the arbitrator’s discretion to require an in-person hearing based on the circumstances). Attendance at an in-person hearing may be made by telephone by you and/or us, unless the arbitrator requires otherwise. Any in-person arbitration shall be held at a location determined by the AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for you), or at such other location as may be mutually agreed upon by you and us.
9.5 You agree further that: (a) the arbitrator shall apply Russian Federation Arbitration Act and applicable statutes of limitations, including principles of equity, and shall honor claims of privilege recognized at law; (b) the arbitrator shall not be bound by rulings in prior arbitrations involving us, but is bound by rulings in prior arbitrations involving both you and us to the extent required by applicable law.
9.6 With the exception of Section 9.3 above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by the AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, Section 9.3 above is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor we shall be entitled to arbitrate their dispute.
10. GOVERNING LAW AND VENUE
Any dispute arising out of or related to these Terms shall be governed by the laws of the Russian Federation, without regard to or application of its choice of law rules or conflicts-of-laws principles, except that the Arbitration provision of these Terms shall be governed by the Federal Arbitration Act. In the event that the Agreement to Arbitrate above 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 Russian Federation court.
These Terms sets forth the entire understanding between you and us with respect to your use of the VTB Commerce Solution and your purchase of Products from us, and supersedes any and all prior or contemporaneous communications, agreements, and representations, whether written or oral, related thereto. No amendment to these Terms will be valid unless made in writing and signed by you and us. These Terms prevail over any other terms or conditions contained in or referred to elsewhere or implied by trade, custom or course of dealing. Any purported terms or conditions to the contrary are hereby excluded to the fullest extent legally permitted. VTB LLC may engage the services of subcontractors or agents to assist VTB LLC in the performance of its obligations related to these Terms. You may not assign or transfer your rights under these Terms, and any purported assignment or transfer shall be void. No relaxation, forbearance, delay or indulgence by either you or us in enforcing any of these Terms or the granting of time by either party to the other shall prejudice or restrict such rights and powers. No waiver of any term or condition of these Terms shall be effective unless made in writing and signed by us. The waiver of any breach of any Term shall not be construed as a waiver of any subsequent breach or condition. If for any reason we determine or a court of competent jurisdiction finds that any provision or portion of these Terms to be illegal, unenforceable, or invalid under applicable law in a particular jurisdiction: (a) these Terms will not be affected in other jurisdictions to the extent that such determination or finding has no application; and (b) in the relevant jurisdiction, the remainder of these Terms (to the fullest extent permitted by law) will continue in full force and effect. Neither you nor us shall be in breach of these Terms in the event that party is unable to perform its obligations as a result of any reason or condition beyond its reasonable control.