Last Updated: March 31, 2014.
1.1 In these Conditions, the following terms shall have the respective meanings specified below unless the context otherwise requires:
“Buyer” means the person or legal entity identified in the Order as the purchaser of the Products.
“Conditions” means these Terms and Conditions of Online Sale.
“Contract” means a contract for sale between DFASS and the Buyer of the Products formed upon the acceptance by DFASS of a Buyer Order in accordance with Clause 3.3.
“DFASS” means DFASS Retail Travel Services, Inc.
“Force Majeure Event” means any event or circumstances the occurrence and the effect of which DFASS could not reasonably prevent or avoid including:
“Online Store” means the Pre-Order online store currently accessible at http://www.dutyfreecollection.com.
“Order” means an online order placed via the Online Store by a Buyer with DFASS for the Products in accordance with these Conditions.
“Parties” means DFASS and the Buyer and “Party” means any one of them.
“Product” means a product or service listed on the Online Store for which DFASS invites Orders in accordance with these Conditions.
“Returns Policy” is defined in Clause 8.2.
“Substitute Product” is defined in Clause 5.3.
1.2 Words using the singular or plural number also include the plural or singular number.
1.3 Any reference to a "person" or “entity” includes a reference to an individual, a sole-proprietor, a partnership, an unincorporated association and a company.
1.4 Any reference to a “Clause” is to a clause of these Conditions.
1.5 The headings in these Conditions are inserted for convenience only and shall be ignored in construing these Conditions.
1.6 A reference to the word “include” or “including” shall not be construed as having any limiting effect.
2 Application and effect
2.1 These Conditions shall govern the sale of the Products listed at the Online Store by DFASS to the Buyer.
2.2 By placing an Order for a Product and/or accepting delivery of Product, the Buyer agrees to be bound by and accepts these Conditions.
3 Orders, price and payment
3.1 Buyer shall indicate the Products he or she wishes to order and the quantity required, at the price specified by DFASS at the Online Store, by placing an Order on the designated online form at the Online Store and providing to DFASS all necessary information as may be required by DFASS.
3.2 All Orders made by the Buyer for one or more Product(s) shall be deemed to be an offer made by the Buyer to purchase such Product(s) upon these Conditions and for the selected Products and quantities set out in the Order. All Orders shall be subject to acceptance by DFASS.
3.3 DFASS may accept an Order by:
3.3.1 Email or other mode of communication within a reasonable time after Buyer has made the Order, to accept and confirm the price, quantity and Product(s) ordered by the Buyer; or
3.3.2 Delivering the Product(s) ordered to the Buyer, and upon such acceptance, a binding Contract shall be formed upon the terms set out in these Conditions, the terms of the accepted Order (excluding any terms which are not accepted by DFASS), and such other terms and conditions as DFASS may impose as a condition of its acceptance. For the avoidance of doubt, no Contract shall come into existence unless and until the Order has been accepted by DFASS in the manner set out in this Clause 3.3. Processing of Credit Card payment for an Order shall not in itself constitute acceptance of the Order by DFASS, provided that where an Order is rejected or cancelled by DFASS, or the acceptance is rescinded or revoked by DFASS, any payment made for such Order shall be reversed or refunded by DFASS.
3.4 DFASS shall be entitled to:
3.4.1 Decline to accept or reject the Buyer’s Order, in whole or in part, for any reason including limitations on quantities available for purchase, inaccuracies, or errors in product or pricing description or information, or problems identified by DFASS’ credit department and/or fraud avoidance department; or
3.4.2 Rescind, revoke or cancel any acceptance of a Buyer’s Order, in whole or in part, due to non-delivery of any Order in whole or in part, due to Product unavailability or low inventory levels, or for any other reason.
3.5 DFASS shall not be liable for any errors in the pricing or specification of Products ordered by the Buyer that may appear on the Online Store. The price to be paid by the Buyer for all Products shall be DFASS' current selling price on the date of acceptance by DFASS of an Order, which may or may not be correctly reflected on the Online Store. DFASS reserves the right to cancel any orders containing pricing errors, with no further obligations to Buyer, even after Buyer’s receipt of an Order confirmation or shipping notice from DFASS. DFASS may, at its discretion, either contact Buyer for instructions or cancel Buyer’s order and notify Buyer of such cancellation.
3.6 Payment for the Products shall be made by the Buyer in full by Buyer’s valid Credit card before physical delivery of Products. Cash or personal checks will not be accepted.
3.7 The Buyer represents and warrants that he or she is ordering Products for Buyer’s own internal use only and not for re-sale or export purposes.
3.8 All credit card payments are subject to the approval of the credit card processor and the relevant paying bank. DFASS shall not be liable in any way if the credit card processor or the paying bank refuses to process or accept any credit card or credit card particulars for any reason.
3.9 The Buyer agrees to submit to DFASS and its credit card processor such credit card and other personal and delivery information as may be reasonably requested by DFASS or its credit card processor to process the Order, payment for the Order, and to arrange for delivery and invoicing. DFASS shall require its credit card processor to maintain such information in accordance with applicable law and to take reasonable precautions to keep personally identifiable information confidential and not to use the same for any purpose other than to carry out its services, provided, however, Buyer agrees that DFASS shall not be liable for any loss, damage, or liability in the event of any unauthorized disclosure or use of such information by its credit card processor.
3.10 DFASS reserves the right to exercise its lawful remedies if a dispute or issue arises over payment through a Credit Card, or if it does not receive full payment for an Order. In particular, but without limitation, if the credit card processor or the paying bank rejects or reverses payment for an Order, DFASS may in its discretion:
3.10.1 Reject or revoke such Order and corresponding Contract, or suspend or cancel delivery of such Order and its performance under the corresponding Contract;
3.10.2 Repossess the Products if delivered; or
3.10.3 Claim against the Buyer for the full price of the Order plus interest, at an annual rate equal to the lower of (i) eighteen percent per annum and (ii) the highest rate permitted by law, as a debt.
3.11 DFASS shall be entitled to set-off and deduct from any refund due to the Buyer all sums owed by the Buyer to DFASS under any and all Contracts and other agreements. DFASS reserves the right to limit the quantity of items purchased per person, per household or per order for any reason. These restrictions may apply to orders placed by the same account, the same credit card, and also to orders that use the same billing and/or shipping address. DFASS will notify the customer should such limits be applied.
4 Title and risk
4.1 Risk in the Products shall pass to the Buyer upon delivery of the Products to Buyer.
4.2 Title in the Products shall not pass to Buyer until receipt by DFASS of full and final payment for the Products and delivery of the Products to Buyer.
5 Order delivery and cancellation
5.1 Subject always to DFASS’ acceptance of the Order, DFASS shall deliver the Products to the delivery location designated by Buyer in an Order.
5.2 DFASS reserves the right from time to time, without liability or prior notice, to: (i) to withdraw or cease to make available any or all Products from the Online Store; (ii) change its prices or specifications of any Product; or (iii) to deliver a Product which has similar functionality as any Product ordered with minor differences in specifications (each a "Substitute Product"). The Buyer shall be deemed to have accepted such changes and differences if the Buyer accepts delivery of a Substitute Product.
6 Acceptance, Returns & Refunds
6.1 Unless the Buyer notifies DFASS in writing to the contrary within 30 days of the date of delivery, the Products shall be deemed to have been accepted by the Buyer as being in good condition and in accordance with the Contract.
6.2 DFASS warrants that every Product will be in good condition at the time of purchase. If it is not, the Buyer shall be entitled to return the Product to DFASS by registered post in its original condition and original packaging and accompanied by proof of purchase within 30 days of receipt, detailing the reason for return. Upon safe receipt of returned Products within 30 days, DFASS will in its discretion either exchange or refund the defective Product. In the event it elects to provide a refund, DFASS will refund the cost of such Product to the Buyer’s credit card account.
6.3 Notwithstanding anything contained herein to the contrary, all purchases using any form of vouchers are final, non-refundable and non-exchangeable.
6.4 DFASS will not accept any returns or requests for refunds which do not comply with the above conditions. The foregoing shall be known as the DFASS “Returns Policy”.
6.5 Except as set forth in Section 6.2 above, DFASS makes no representation or warranty in respect of any Product, and the DFASS Returns Policy is in lieu of all other representations and warranties express or implied, including any implied warranties of merchantability, satisfactory quality, compliance with description and fitness for a particular purpose. DFASS’ sole liability for defective or non-compliant Products is limited to the Returns Policy. The Parties agree that time is of the essence with respect to the timelines set forth in the Returns Policy. Buyer’s failure to strictly comply with the Returns Policy shall constitute a waiver of Buyer’s rights under the Returns Policy.
6.6 DFASS reserves the right to refuse any claims under the Returns Policy if:
220.127.116.11 The claim does not meet any of the conditions, or falls within any of the exclusions, under the Returns Policy; or
18.104.22.168 The defect is the result of:
22.214.171.124.1 improper use or mismanagement by Buyer;
126.96.36.199.2 operation of the Products other than in accordance with the operating manual or instructions;
188.8.131.52.3 use of the Products in a manner not reasonably contemplated by DFASS;
184.108.40.206.4 modification of the Products not authorized by DFASS;
220.127.116.11.5 subjection of the Products to unusual or unrecommended physical, environmental or electrical stress; or
18.104.22.168.6 Buyer’s failure to comply with any terms of these Conditions.
7 Exclusion & limitation of liability
7.1 In no event shall DFASS be liable to the Buyer or any third party for any indirect, special, consequential, exemplary, punitive or treble loss or damage including but not limited to loss of profits, loss of business or goodwill, loss of use, or any claim by any third party, arising out of or relating to the purchase, sale, supply, delivery, possession, replacement or use of a Product, any Contract, the Online Store, any transaction between DFASS and the Buyer through the Online Store or the breach of any obligations or duty, contractual or otherwise, owed by DFASS to Buyer, even if DFASS has been advised of the possibility of such loss or damage.
7.2 The total liability of DFASS to the Buyer for any and all claims whether by the Buyer or by any other person and howsoever arising in connection with or arising out of the purchase, sale, supply, delivery possession, replacement or use of a Product or resulting from the breach of the Contract and/or these Conditions by DFASS shall not in any event exceed the price of the Product giving rise to such claims.
7.3 THE FOREGOING LIMITATIONS OF LIABILITY SET FORTH HEREIN SHALL APPLY: (i) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE; AND (ii) WHETHER OR NOT DAMAGES WERE FORESEEABLE. THE FOREGOING LIMITATIONS OF LIABILITY SHALL SURVIVE TERMINATION OF THESE CONDITIONS AND THE CONTRACT.
8.1 DFASS reserves the right to change these Conditions without prior written notice at any time, at DFASS’s sole discretion, by posting a copy of the amended Conditions at the Online Store.
8.2 Any attempt to modify, supplement or amend these Conditions by the Buyer will be null and void, unless expressly agreed to in writing by DFASS.
9 Complete Contract
9.1 The Contract and these Conditions represent the entire understanding between DFASS and the Buyer concerning the sale and supply of the Products, and shall form the exclusive statement of all the matters covered by the Contract and these Conditions. Any and all previous course of dealings, written or oral understandings, discussions, representations, correspondence and communications between the Parties relating to the matters covered by the Contract and/or these Conditions are hereby superseded.
9.2 Any term or condition of the Buyer’s Order which is any way inconsistent with or in addition to these Conditions shall not be applicable or binding on DFASS, unless otherwise agreed in a written agreement signed by Buyer and DFASS, and any failure by DFASS to object shall not be considered a waiver of these Conditions.
The Buyer shall not assign or otherwise transfer the Contract or any of its rights and obligations hereunder, whether in whole or in part, without the prior written consent of DFASS. Any such unauthorized assignment shall be deemed null and void.
11 No Waiver
No failure on the part of DFASS to exercise, and no delay on its part in exercising, any right or remedy under the Contract will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.
If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provisions in question shall not be affected thereby.
13 Rights of Third Parties
A person or entity who is not a Party to the Contract shall have no right to enforce any term of the Contract, regardless of whether such person or entity has been identified by name, as a member of a class or as answering a particular description.
14 ARBITRATION OF DISPUTES
14.1 Agreement to Arbitrate Disputes: This arbitration provision (the “Arbitration Provision”) sets forth the circumstances and procedures under which Claims (as defined below) that arise between Buyer and DFASS will be resolved through binding arbitration. This means that neither Buyer nor DFASS will have the right to litigate that Claim in court or have a jury trial on that Claim. Other rights that Buyer would have in court also may not be available or may be limited in arbitration, including Buyer’s right to appeal and Buyer’s ability to participate in a class action. Nothing in this provision precludes Buyer from filing and pursuing Buyer’s individual Claim in a small claims court in Buyer’s state of residence if the amount in controversy is less than five thousand dollars ($5,000), so long as that Claim is pending only in that court, such Claim is not tried before a jury and such claim is not brought or maintained on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of others.
14.2 Definitions: As defined in this Arbitration Provision, the term “Claim” shall mean and include any claim, dispute or controversy of every kind and nature, whether based in law or equity, between Buyer and DFASS arising from or relating to the purchase, sale, supply, delivery, possession, replacement or use of a Product, the Contract, the Online Store, any transaction between DFASS and the Buyer through the Online Store or the breach of any obligations or duty, contractual or otherwise, owed by DFASS to Buyer or the relationships resulting from any of the above agreements (“Agreements”), including the validity, enforceability or scope of this Arbitration Provision or the Contract.
14.3 Initiation of Arbitration Proceeding/Selection of Administrator: Any Claim shall be resolved by binding arbitration pursuant to this Arbitration Provision and in accordance with the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association (“AAA”). To the extent of any conflict or inconsistency between this Arbitration Provision and the AAA’s Commercial Arbitration Rules and Mediation Procedures, this Arbitration Provision shall prevail.
14.4 Class Action Waiver and Other Restrictions: Arbitration shall proceed solely on an individual basis without the right for any Claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of others. The arbitrator’s authority to resolve and make written awards is limited to Claims between Buyer and DFASS alone. Claims may not be joined or consolidated unless agreed to in writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Notwithstanding any other provision in these Terms and Conditions, and without waiving either party’s right of appeal, if any portion of this “Class Action Waiver and Other Restrictions” provision is deemed invalid or unenforceable, then the entire Arbitration Provision (other than this sentence) shall not apply.
14.5 Arbitration Procedures: This Arbitration Provision is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 USC. Sections 1-16, as it may be amended (“FAA”). The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statutes of limitations and shall honor claims of privilege recognized at law. Federal or state rules of civil procedure or evidence shall not apply. Written requests to expand the scope of discovery rest within the arbitrator’s sole discretion and shall be determined pursuant to the AAA’s Commercial Arbitration Rules and Mediation Procedures. The arbitrator shall take reasonable steps to preserve the privacy of individuals, and of business matters. Judgment upon the written arbitral award may be entered in any court having jurisdiction.
14.6 Location of Arbitration/Payment of Fees: The arbitration shall take place in Miami-Dade County, Florida. Irrespective of who prevails in arbitration, Buyer will be responsible for paying Buyer’s share of the arbitration fees required by the AAA.
15 Governing Law. Except as provided otherwise with respect to the Arbitration Provision, this Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without reference to conflict of law principals.
16.1 (a) DFASS may collect sales and use tax in connection with the purchase and sale of any Products. DFASS makes no representation or warranty that it shall collect all taxes required by law to be collected or paid and the parties agree that all taxes arising in connection with the sale, purchase, shipment, ownership, delivery, possession, use, repair, return, storage or disposition of the any of the Products shall, except as provided in subpart (b) below, be borne by and the responsibility of Buyer. Buyer agrees to pay, and to indemnify and hold DFASS harmless from and against all taxes, including, without limitation, all income, sales, use, property, excise, recording, license, stamp and other taxes, levies, imposts, duties, charges, additions to tax, withholdings, assessments and governmental charges of any nature whatsoever, together with any penalties, fines, or interest thereon, including, without limitation, additions to tax, penalties, fines or interest arising out of any delay in paying or failure to pay any of the foregoing or any failure to file or furnish to DFASS for filing in a timely manner any reports or returns provided for in paragraph (c) hereof (all of the foregoing being herein collectively called “Impositions”) hereafter levied or imposed against DFASS or the Products by any governmental authority that asserts power to impose an Imposition upon, with respect to, as a result of or measured by or in connection with the sale, purchase, shipment, ownership, delivery, possession, use, repair, return, storage or disposition of the any of the Products. The amount of each indemnity payable by the Buyer under this section, shall be adjusted to such amount as will, after taking into account all Impositions imposed with respect to the receipt of such indemnity by DFASS (as the same may be adjusted under this sentence) and any deductions, credits or other tax benefits attributable to (x) the Impositions for which the indemnity payment has been made or (y) other Impositions, be equal to the net after-tax cost to DFASS.
16.2 The Buyer’s obligations under paragraph (a) hereof shall not apply to: (1) Impositions based upon, with respect to, as a result of or measured by or in connection with (i) the income of DFASS imposed by the United States or by any state or local government or taxing authority in the United States, or by any foreign government or any subdivision or taxing authority thereof and any Imposition in lieu thereof, whether imposed by withholding or otherwise, and whether characterized as income, doing business, tax preference, alternative minimum, minimum or franchise tax; or (ii) the right or authority of any DFASS to do business or exist as a corporate body.
16.3 In case any report or return is required to be made or filed with respect to an Imposition indemnified against by the Buyer under this section, the Buyer will, at its expense, either prepare such report and send the same to DFASS for filing or, if DFASS so requests, DFASS will prepare such a report or return for filing by the Buyer and Buyer shall file such report with the proper authorities.