General Terms of Sale
Updated 4 June 2018
Thank you for purchasing from Tonik. These General Terms of Sale (“Terms of Sale”) govern the purchase of our Products and by purchasing these Products, you agree to these terms. Definitions of capitalized terms used in these Terms of Sale are located in the Interpretation Section at the end of these Terms of Sale. Further information on our returns and transfers policy is located in the Returns and Transfers Policy, as described below.
Note: If you purchased Hardware directly from one of our authorized resellers, only the customer support and warranty terms listed in Section 5 and after shall apply to you.
If you purchased Software, including via the Google Play or Apple iTunes stores, from an authorized reseller, only Section 2 (“Right to Cancel Online Orders”) and Sections 5 and after shall apply. In the event of a conflict between Google’s or Apple’s terms and these General Terms of Sale, the General Terms of Sale shall govern.
1. Online Order Process and Payment Terms
1.1. Upon clicking the “I Accept” button on the order page you confirm that you have read and understand these Terms of Sale and Returns and Transfers Policy, which incorporated herein by reference, and agree to be bound by them.
1.2. By clicking the “Complete order” button on the order page, you confirm that you would like to purchase the Products in your cart (an “Order Request”). A binding agreement that Tonik will deliver the Products will not be formed between you and Tonik until you have paid the full amount due as set out in the Order Request and Tonik sends you an Order Confirmation with a Customer Order Number. Order Confirmations are subject to compliance with these Terms of Sale and Tonik’s sole discretion. No Order Request shall be deemed accepted unless and until confirmed by an Order Confirmation from Tonik.
1.3. Only Products listed in Tonik’s Order Confirmation form part of that Contract. If you notice any inaccuracies or errors in your Order Confirmation or you have made any mistakes in the information that you provided, you must contact Tonik promptly upon receipt, ideally immediately, so that we have the opportunity to correct any mistake or clarify any misunderstanding before commencing delivery/performance.
1.4. If Tonik is unable to fulfil your order for any reason, we will notify you, and promptly return to you any payment received by us.
2. Right to Cancel Online Orders
Please refer to our Returns and Transfers Policy for information about your right to return and transfer your Tonik Products. All inquiries concerning returns or transfers shall go directly to the Tonik Support team by emailing firstname.lastname@example.org.
3. Online Pricing
3.1. Unless otherwise agreed in writing, the price and specification for the Products shall be set out on the Tonik website.
3.2. We reserve the right to make any changes to the specification of the Products, including to conform with any applicable safety or other statutory or regulatory requirement.
3.3. Any specified promotional items will be available free without obligation and only while stock is available.
3.4. In the unlikely event of any discrepancy between the price set out in the order confirmation, and the price stated on Tonik’s website or in other advertising, please contact us immediately.
4. Delivery and Ownership for Online Orders
4.1. We shall use all reasonable endeavors to deliver the Products to you. The times stated and your Delivery Date are only estimates and do not equate to actual delivery times. If you have ordered several Products at one time, the Products may be delivered on different Days. Delivery will not be of the essence unless previously agreed by us in writing. We will not be held liable for any delay in delivery caused by late settlement by the buyer of the remaining balance prior to dispatch or due to forces out of our control.
4.2. Tonik may not ship to your country. Reasons for non-shipment may include trade restrictions or lack of availability of courier service in your area. Please see the Delivery FAQs for details on availability of international shipping. If Tonik does not ship to your country, please email us at toniksound.com for information about stores in your area.
4.3. If we do ship to your country and upon payment in full, you will receive an Order Confirmation. , Products will be delivered to the address specified in the Order Confirmation and/or in any other arrangement confirmed in writing between you and Tonik.
4.4. The Products may be delivered in advance of the Delivery Date upon reasonable notice to you.
4.5. If you fail to take delivery of the Products or any part of them on the Delivery Date and/or fail to provide any instructions, documents, licences, consents or authorisations required to enable the Products to be delivered on that date, we shall be entitled, upon written notice, to store or arrange for the storage of the Products. If redelivery is required, you will be held liable for any extra courier and insurance costs and expenses.
4.6. Title to the Products will pass to you once Tonik receives payment in full, or when we deliver the Products to you (or your representative), whichever is later. The transfer of ownership of the Products does not mean that you own any Intellectual Property Rights in the Products you purchase from Tonik. If the Contract is terminated before that passing of title in the Products occurs, we may recover any Products supplied to you and you agree to assist us in such circumstances.
5. Customer Support Service for all Tonik Products
5.1. Should you experience any problems in using the Product during setup or installation or experience any associated user issues, you may contact the Tonik Customer Support team at email@example.com.
5.2. We shall aim to resolve your query when you first make contact, although no resolution can be guaranteed. On occasion we may need to contact you again and to suggest a resolution or involve other experts at Tonik.
5.4. Repairs under warranty will be carried out within a reasonable period. We will at all times try to meet response times estimated in correspondence with you, but actual timings may vary depending, among other factors, on the remoteness or accessibility of your location, weather conditions and availability of parts.
5.5. We may provide Services via internet or telephone as appropriate. Telephone calls may be recorded for training purposes.
5.6. Unless otherwise stated, you shall be responsible for all telephone and postal charges in contacting us, except when returning Products which are defective or damaged, or do not accord with the Order Confirmation.
6. Limited One Year Warranty For Hardware
6.1. For Hardware purchased in the United States and where otherwise permitted by law, Tonik warrants the Hardware will be free of defects in materials and manufacture under normal use for one year (“Limited One Year Warranty”). The Limited One Year Warranty term begins on the date of purchase from an authorized Tonik reseller; and proof of purchase in the form of a receipt may be required.
6.2. You may have statutory rights under consumer laws and the laws of your country or state that give you greater rights than our Limited One Year Warranty described above. Accordingly, the Tonik Limited One Year Warranty is in addition to, and not instead of, your statutory rights. Further information on your rights as a consumer is available from your local Citizens’ Advice Bureau or Trading Standards (or your state or country equivalent).
6.3. The Limited One Year Warranty provided under this section 6 will be conditioned on proper use of your Hardware. We shall repair the Hardware or replace it free of charge with a functional equivalent Hardware that is new or refurbished at Tonik’s discretion on condition that:
i. Reasonable care had been taken of the Hardware, and it has only been subjected to reasonable wear and tear;
ii. The fault has not been caused or contributed to by willfully or negligently caused damage or any accident whilst in your control or through exposure to environmental conditions harmful to the Hardware, or by Third Party Software or other third party products loaded onto or connected to the Hardware;
iii. The part which develops the fault has not been previously modified or repaired by any third party;
iv. The fault did not occur in transit as a result of inadequate packaging or protection. This includes a failure to use an appropriate case for day-to-day transportation, or an appropriate additional flight case for situations where the Hardware is likely to be subjected to physical duress; and
6.4. Tonik’s obligation to repair under clause 6.3 above, does not apply to
i. Parts which are not critical to the Hardware’s functionality;
ii. Damages caused by improper installation or improper connection to any peripheral;
iii. Damages caused by any unintended use of the supplied power adaptor (if applicable) or use of a third party adaptor or use of any parts not supplied or sold by Tonik;
iv. Hardware purchased from anyone other than Tonik or an authorized reseller;
v. Modifications to the product not authorized by Tonik;
vi. Hardware that has the serial number removed or made illegible;
vii. Cosmetic features of the Hardware;
viii. Normal cosmetic and mechanical wear.
6.5. If eligible under this Section 6, Tonik will repair the Hardware using parts which are new, or equivalent to new in accordance with industry standards and practice. We will bear all costs related to collection, shipping and delivery of Hardware for the purpose of repair. Our return procedure for all Tonik Products can be found here.
6.6. You will own all replacement parts. We shall own any Hardware and/or parts that are replaced pursuant to this Limited One Year Warranty, and, if requested by Tonik or an approved distributor, you must return them to us. The costs of returning such removed parts or replaced Hardware will be borne by Tonik.
6.7. Tonik is not responsible for any Third Party Software or any other third party products that may be offered with your Tonik Products. Please ask manufacturers of third party product and/or Third Party Software licensors directly to fulfil their obligations to you under any applicable warranties and guarantees that they may offer.
7.0 Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TONIK AND ITS EMPLOYEES AND AGENTS WILL UNDER NO CIRCUMSTANCES BE LIABLE TO YOU OR ANY SUBSEQUENT OWNER FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO COSTS OF RECOVERING, REPROGRAMMING, OR REPRODUCING ANY PROGRAM OR DATA OR THE LOSS OF BUSINESS, PROFITS, REVENUE OR ANTICIPATED SAVINGS, RESULTING FROM USE OF TONIK PRODUCTS AND TONIK’S OBLIGATIONS UNDER THESE TERMS OF SALE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIMIT OF TONIK AND ITS EMPLOYEES AND AGENTS’ LIABILITY TO YOU AND ANY SUBSEQUENT OWNER ARISING UNDER THESE TERMS OF SALE SHALL NOT EXCEED THE ORIGINAL PRICE PAID FOR THE PRODUCT(S). FOR CONSUMERS IN JURISDICTIONS WHO HAVE THE BENEFIT OF CONSUMER PROTECTION LAWS OR REGULATIONS, THE BENEFITS CONFERRED BY THESE TERMS OF SALE ARE IN ADDITION TO ALL RIGHTS AND REMEDIES PROVIDED UNDER SUCH LAWS AND REGULATIONS. TO THE EXTENT THAT LIABILITY UNDER SUCH LAWS AND REGULATIONS MAY BE LIMITED, TONIK’S LIABILITY IS LIMITED, AT ITS SOLE OPTION, TO REPLACE OR REPAIR THE COVERED PRODUCT OR SUPPLY THE SERVICE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
9. Resale or Export
You agree and represent that you are buying the Products for personal use only and not otherwise for resale or export.
10. Force Majeure
Tonik shall not be liable for any failure or delay in the performance of its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A “Force Majeure Event” means an event or circumstance the occurrence of which is beyond the reasonable control of either party to this Contract, including without limitation, failure of third party suppliers, change of statute or regulation, acts of God, governmental actions, war, national emergency, acts of terrorism, or failure of transport networks. In the event of a Force Majeure Event, Tonik reserves the right to defer the date of delivery, reduce the volume of Products ordered, or to cancel the Contract without liability to you. If a Force Majeure event continues for a continuous period in excess of sixty (60) Days, you shall be entitled to give notice in writing to Tonik to terminate the Contract, such notice to take effect no earlier than fifteen (15) Days from the date of such notice.
If for any reason part of these Terms of Sale is unenforceable, the validity of the remaining Terms of Sale shall not be affected.
A failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
13. Governing Law and Jurisdiction
13.1. If you are a UK, EU, EEA, or Swiss citizen, these Terms of Sale shall be governed by the laws of England and Wales without regard to its conflict of law rules and you consent to the exclusive jurisdiction of the courts located in London, UK. Special information on the online dispute resolution for consumers within the European Union can be accessed here: http://ec.europa.eu/
13.2. If you are a US citizen, these Terms of Sale shall be governed by the laws of New York without regard to its conflict of laws rules and you consent to the exclusive jurisdiction of the state and federal courts located in New York County.
13.3. If you live outside the US, UK, EU, EEA or Switzerland, you agree to the laws and jurisdiction of New York as noted above in section 14.2.
14. Third Party Rights
A person who is not a party to this Contract may not enforce any of its provisions under the Contracts (Rights of Third Parties) Act 1999.
15. Consumer Rights Notice for UK citizens and other jurisdictions
If you are a consumer, you have a legal right for services to be carried out with reasonable care and skill and products to be of satisfactory quality. Advice about your legal rights is available from your local Citizens’ Advice Bureau. Nothing in these Terms of Sale will affect those legal rights. You may also have rights as a consumer outside the UK. Please check your own state or country’s consumer rights organizations.
In these Terms of Sale unless the context otherwise requires, the following expressions have the following meanings:
16.1. “Contract”: means the body of these Terms of Sale, together with your Order Confirmation and any technical specification relating to the Product, as may be amended from time to time in accordance with its provisions;
16.2. “Customer Order Number”: means the order number issued by Tonik to the Customer in the Order Confirmation, identifying your order;
16.3. “Day(s)” or “Day(s)”: means any day except a Saturday, a Sunday or a public holiday in England. Any order placed on Saturday, Sunday or a public holiday will be acknowledged on the following day of business.
16.4. “Delivery Date”: means the date on which the Products are scheduled (subject to the terms set out in these Terms of Sale) to be delivered as stipulated in the Buyer’s Order Confirmation.
16.5. “Hardware”: means all Tonik hardware Products, including all software bundled with the hardware.
16.7. “Intellectual Property Rights”: means (i) patents, inventions, designs, copyright and related rights, database rights, trademarks and related goodwill, trade names (whether registered or unregistered), and rights to apply for registration; (ii) proprietary rights in domain names; (iii) knowhow and confidential information; (iv) applications, extensions and renewals in relation to any of these rights; and (v) all other rights of a similar nature or having an equivalent effect anywhere in the world.
16.8. “Order Confirmation”: means an email to notify you that your order has been accepted by us and payment in full has been received and processed by Tonik.
16.9 “Products” mean any Tonik products, including Software and Hardware.
16.10 “Software” on its own shall collectively refer to Stand-alone Software, and Software-Add ons, as further described in the Returns and Transfers Policy.
16.11 “Third-party Software” means third party software that is bundled with Tonik Products or otherwise sold separately to be used with Tonik Products.
16.12. “Terms of Sale”: means the General Terms of Sale applicable to your Contract with us, as detailed above.
16.13. “You”: means the person who accepts the offer of sale of the Products or whose order for the Products is accepted by Tonik Sound Ltd.
16.14. “Tonik/us/we”: means “Tonik Sound Ltd.” a company registered in England under Company No.
10943805 as well as our subsidiaries.
17. Updates to these Terms of Sale
Changes may be made to these Terms of Sale and any material changes will be communicated to you by email. Amendments and updates will also be announced on the Tonik website.