Touch up paint factory, Inc.
Terms & Conditions – 2022
BEFORE USING ANY PAINT PRODUCTS (AS DEFINED BELOW) YOU MUST FIRST TEST THE PAINT ON A SMALL DISCREET AREA AND FOLLOW ALL DIRECTIONS FOR USE. ONLY ONCE YOU ARE SATISFIED THAT THE COLOR OF THE PAINT PRODUCT MATCHES THE PAINT COLOR OF THE CAR SHOULD YOU PROCEED TO FULLY APPLY THE PAINT PRODUCT TO THE DAMAGED AREA. WE DO NOT ACCEPT LIABILITY WHERE THE CUSTOMER CANNOT PROVE THEY PERFORMED THIS SAMPLE TEST FIRST.
1. These terms
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 16.2.
Contract: the contract between us and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer, you, your: the person who purchases the Goods from us. Customer may designate either a reseller or end-user customer, as the case may be.
Event Outside Our Control: has the meaning given in clause 15.
Goods: the goods (or any part of them) as set out in the Order.
Order: the Customer's order for the Goods submitted by the Customer online via the Website.
Paint Products: means the made to order touch up paint.
Website: means the website accessible at www.ouryellowbarn.com
1.2 These are the Conditions on which we supply Goods to you.
1.3 Please read these Conditions carefully before you submit your order to us. These Conditions tell you who we are, how we will provide Goods to you, how you and we may change or end the Contract, what to do if there is a problem and other important information. If you think that there is a mistake in these Conditions or require any changes, please contact us to discuss.
2. Information about us and how to contact us
2.1 We are Touch up paint factory, Inc., a Delaware corporation with its registered office located at 251 Little Falls Drive, Wilmington, DE 19808 (“Touch up paint factory”). You can contact us by telephoning our customer service team at (1) 844-611-3660 or by writing to us at firstname.lastname@example.org
2.2 If we have to contact you we will do so by telephone or by writing to you at the email address or postal address you provided to us in your order.
2.3 When we use the words "writing" or "written" in these Conditions, this includes emails.
3. Our Contract with you
3.1 The Order you place via the Website constitutes an offer to purchase the Goods in accordance with these Conditions. As the Paint Products are made to your specific order you are responsible for ensuring that the terms of the Order are correct. Please read and check your Order before placing as you will not be able to cancel the Contract with regards to the Paint Products unless there is a fault with the Goods or in accordance with the reasons set out in clause 8.3. If ordering Goods other than Paint Products your right to cancel will not be affected with regard to those Goods.
3.2 The Order shall only be deemed accepted by us when you have paid for the Goods, monies received by us and the Goods have been dispatched. Any email, order confirmation or other electronic acknowledgement by us of receipt of an Order does not constitute legal acceptance by us of your Order. We will confirm our acceptance to you by sending you an email confirming that the Goods have been dispatched, at which point the Contract will come into existence between you and us.
3.3 The only language in which the Contract can be concluded is English.
3.4 If we are unable to accept your order, we will inform you of this in writing and will not charge you for the Goods. This might be because the Goods are out of stock, because of unexpected limits on our resources which we could not reasonably plan for, because a credit reference we have obtained for you does not meet our minimum requirements, because we have identified an error in the price or description of the Goods or because we are unable to meet a delivery deadline you have specified.
3.5 We will assign an order number to your order and tell you what it is when we accept your order. It will help us if you can tell us the order number whenever you contact us about your order.
3.6 When ordering the Goods for delivery outside of the United States you may be subject to import duties and taxes, which are levied once the package reaches the specified destination. Any additional charges for customs clearance must be borne by you; we have no control over these charges. Customs policies vary widely from country to country, so you should contact your local customs office for further information. Additionally, please note that when ordering from us, you are considered the importer of record and must comply with all laws and regulations of the country in which you are receiving the Goods. Please be aware that we do not accept any liability for import and export issues as noted above and consider this to be an Event Outside Our Control. Your privacy is important to us and we would like our international customers to be aware that cross-border deliveries are subject to opening and inspection by customs authorities.
4. Our Goods
4.1 The images of the Goods on our Website are for illustrative purposes only. Although we have made every effort to display the colors accurately, we cannot guarantee that a device's display of the colors accurately reflects the color of the Goods. Your Goods may vary slightly from those images.
4.2 Paint Products are color matched by our software using the information you provide to us. It is therefore essential that you check the information you provide to us before purchasing.
4.3 The packaging of the Goods may vary from that shown in images on our Website.
5. Your rights to make changes
If you wish to make a change to the Goods you have ordered please contact us. We will let you know if the change is possible. If it is possible we will let you know about any changes to the price of the Goods, the timing of supply or anything else which would be necessary as a result of your requested change and ask you to confirm whether you wish to go ahead with the change. If we cannot make the change or the consequences of making the change are unacceptable to you, you may want to end the Contract (see clause 8 - Your rights to end the Contract).
6. Our rights to make changes
We may change the Goods in order to reflect changes in relevant laws and regulatory requirements or to implement minor technical adjustments and improvements. Also, we will be entitled to adjust agreed prices on the basis of the average change in the cost price of the Goods to be delivered.
7. Providing the Goods
7.1 The costs of delivery will be as displayed to you on our Website.
7.2 The delivery charge for each item is listed on the Goods detail page. When you add Goods to your shopping basket and have chosen the delivery option the appropriate charge will be added automatically.
7.3 During the order process we will let you know when we will provide the Goods to you. Any dates quoted for delivery are approximate only and these dates shall not be construed as falling within the meaning of “time is of the essence”, unless you specified in writing that delivery within the delivery deadline was essential before we accepted your Order. We cannot be held liable for any costs incurred if delivery is delayed.
7.4 We shall have no liability for any delay in delivery of the Goods, or failure to deliver the Goods, where the delay or failure is caused either by an Event Outside Our Control or the Customer's failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. If our supply of the Goods are delayed by an Event Outside Our Control then we may contact you as soon as possible to let you know and we will take steps to minimize the effect of the delay.
7.5 Where the courier is unable to deliver the Goods, they will either attempt to deliver to a neighbor, attempt to redeliver the following day, leave a card for you to rearrange a suitable time for redelivery or leave the parcel at your local Post Office for you to collect.
7.6 If we miss our estimated delivery deadline for the Goods or, in the absence of any estimate being given the date thirty (30) calendar days after the dispatch confirmation, you may cancel your Order straight away if any of the following apply:
(a) we have refused to deliver the Goods; or
(b) you told us before we accepted your Order that delivery within the delivery deadline was essential. If you do not wish to treat the Contract as at an end straight away, or do not have the right to do so under clause 7.6, you can give us a new deadline for delivery, which must be reasonable, and you can treat the Contract as at an end if we do not meet the new deadline.
7.7 If you do choose to treat the Contract as at an end for late delivery when you specified in writing before your ordered the Goods that delivery within the delivery deadline was essential, you can do so for just some of the Goods or all of them, unless splitting them up would significantly reduce their value. If the Goods have been delivered to you, you will have to return them to us or allow us to collect them, and we will pay the costs of this. After you cancel your Order we will refund any sums you have paid to us for the cancelled Goods and their delivery.
7.8 The risk of loss with respect to the Goods shall pass to you at the time of shipment. The method and agency of transportation and routing will be designated by us. In the event you request alternative shipment or routing, the resulting alternative packing, shipping and transportation charges will for your account.
7.9 You own the Goods once we have received payment in full.
8. Your rights to end the Contract
8.1 You may end the contract as follows:
(a) for Paint Products, as these are made-to-order products, you are not allowed to cancel unless the Paint Products are faulty; or
(b) for all other Goods you may cancel within fourteen (14) calendar days of receipt of those Goods.
8.2 Your rights when you end the Contract will depend on what you have bought, whether there is anything wrong with it, how we are performing and when you decide to end the Contract:
(a) If what you have bought is faulty you may have a right to end the Contract (or to get the Goods replaced or to get some or all of your money back), see clause 11; or
(b) If you want to end the Contract because of something we have done or have told you we are going to do, see clause 8.3.
8.3 If you are ending the Contract for a reason set out at (a) to (e) below the Contract will end immediately and we will refund you in full for any Goods which have not been provided. The reasons are:
(a) we have told you about an upcoming change to the Goods or these Conditions with which you do not agree to (see clause 6);
(b) we have told you about an error in the price or description of the Goods you have ordered and you do not wish to proceed;
(c) there is a risk that supply of the Goods may be significantly delayed because of Events Outside Our Control; or
(d) we have suspended supply of the Goods for technical reasons or notify you we are going to suspend them for technical reasons; or
(e) you may end the Contract because of something we have done wrong (including because we have delivered late and you specified in writing before your ordered the Goods that delivery within the delivery deadline was essential (see clause 7.6 b)).
8.4 If you have ordered Goods other than Paint Products you may change your mind within fourteen (14) calendar days and receive a refund.
8.5 Even if we are not at fault, you can still end the Contract before it is completed. If you want to end the Contract before it is completed where we are not at fault, just contact us to let us know. The Contract will end immediately and we will refund any sums paid by you for Goods not already made for you but we may deduct from that refund (or, if you have not made an advance payment, charge you) reasonable compensation for the net costs we will incur as a result of your ending the Contract.
9. How to end the Contract with us (including if you have changed your mind)
9.1 To end the Contract with us, please call our customer services team. Please provide your name, home address, details of the order and, where available, your phone number and email address.
9.2 If you end the Contract for any reason after Goods have been dispatched to you or you have received them, you must return them to us if we ask you to do so. You must either return the Goods in person to where you bought them, post them back to us or (if they are not suitable for posting) allow us to collect them from you. Please call customer services or email us for a return label or to arrange collection. The returned Goods will remain at your own risk.
9.3 We will pay the costs of return:
(a) if the Goods are faulty; or
(b) if you are ending the Contract because we have told you of an upcoming change to the Goods or these Conditions, an error in pricing or description, a delay in delivery due to events outside our control or because you have a right to do so as a result of something we have done wrong such as late delivery when you specified in writing before your ordered the Goods that delivery within the delivery deadline was essential to you.
In all other circumstances (including where you are exercising your right to change your mind) you must pay the costs of return.
9.4 If you are ending the Contract for the reasons in clause 9.3, we will refund you the price you paid for the Goods including delivery costs, by the method you used for payment.
9.5 We will make any refunds due to you as soon as we can.
10. Our rights to end the Contract
10.1 We may end the Contract for Goods at any time by writing to you if:
(a) you do not make any payment to us when it is due and you still do not make payment within fourteen (14) calendar days of us reminding you that payment is due;
(b) you do not, within a reasonable time of us asking for it, provide us with information that is necessary for us to provide the Goods; or
(c) you do not, within a reasonable time, allow us to deliver the Goods to you.
10.2 If we end the Contract in the situations set out in clause 10.1 we will refund any money you have paid in advance for Goods we have not provided but we may deduct or charge you reasonable compensation for the net costs we will incur as a result of your breaking the Contract.
11. If there is a problem with the Goods
11.1 If you have any questions or complaints about the Goods, please contact us.
11.2 If we have exhausted our internal complaints handling procedure and we inform you in writing that we cannot settle your complaint, you have the option of referring your complaint to an Alternative Dispute Resolution ("ADR") provider to deal with the same.
11.3 We are under a legal duty to supply Goods that are in conformity with this Contract.
11.4 In your capacity as consumer, you may have legal rights under the applicable law governing the sale of consumer goods; those legal rights are not affected by these Conditions.
12. Price and payment
12.1 The price of the Goods is the price set out on the Website at the time you submit your Order. All prices are shown in US dollars.
12.2 The price of the Goods does not include delivery charges which will be as advised during the check-out process, before you confirm your Order.
12.3 The price of the Goods does not include any present or future Federal, State or Local property, sales tax, use, excise, license, gross receipts or other taxes or assessments which may be applicable to, imposed upon or result from the purchase of the Goods. The Customer agrees to pay any such taxes or reimburse payment of such taxes by us.
12.4 Offers cannot be used in conjunction with one another. Where more than one offer is available on the same Goods only one discount will apply. The offer giving the greatest saving will be applied in the basket. Equally, voucher code offers cannot be used in conjunction with any other promotional offer.
12.5 We accept payment by most major credit or debit, or by Paypal. We regret that we are unable to accept payment online by cheque, cash, Purchase Orders or any other form of payment. For more information about payment methods, please see our Website.
12.6 Please ensure that the expiry date of your credit or debit card is after the anticipated dispatch date of your Order. Payment will be debited from your account just before the dispatch of your Goods, and if your payment card has expired, we will be unable to take payment and fulfil your Order.
12.7 When an Order is placed a pre-authorization will be made against your account. Payment is not taken at this time. We will endeavor to process any payments at the time of dispatch. On the rare occasion that this process is not successful, we will re-process accordingly. We will not inform you if this delay occurs. We are not liable for any bank charges that may be incurred by the Customer if sufficient funds are not available at the time when payment is taken.
12.8 All credit and debit card holders are subject to validation checks and authorization by the card issuer. If the issuer of your payment card refuses to authorize payment to us, we will not be liable for any delay or non-delivery.
12.9 In addition, to prevent fraudulent use of credit and debit cards, we will validate the names, addresses and other information supplied during the Order process against commercially available records (e.g. Electoral Roll data, Credit Reference Services). A third party may also be instructed to complete these checks. By ordering from the Website you consent to such checks being made. We may need to contact you by letter, telephone or email to verify details before we are able to process and dispatch your Order or we may be unable to accept your Order. Any information given may be disclosed to a registered Credit Reference Agency which may keep a record of the information. All information provided will be treated in accordance with the relevant data protection legislation applicable in Delaware.
13.1 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM AND EXCLUDE ALL TERMS, CONDITIONS AND WARRANTIES IN RELATION TO THE GOODS WHETHER EXPRESS OR IMPLIED BY STATUTE OR OTHERWISE OR ARISING FROM ANY PREVIOUS COURSE OF DEALING OR USAGE OR TRADE PRACTICE UNLESS EXPRESSLY SET OUT IN THESE CONDITIONS.
13.2 PLEASE NOTE THAT WE DO NOT GIVE ANY ASSURANCES AS TO THE QUALITY OF THE WORKMANSHIP NOR THAT THE GOODS WILL REPAIR ALL TYPES OF DAMAGE TO YOUR SATISFACTION.
13.3 NOTHING IN THESE CONDITIONS LIMITS OR EXCLUDES OUR LIABILITY FOR ANY LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW. SUBJECT TO THE PRECEDING SENTENCE, OUR AGGREGATE LIABILITY TO YOU UNDER THESE CONDITIONS FOR ANY ORDER WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES SHALL BE AS FOLLOWS:
(a) FOR DAMAGE TO PROPERTY, OUR LIABILITY SHALL NOT EXCEED $100,000 (ONE HUNDRED THOUSAND US DOLLARS); AND,
(b) FOR ALL OTHER LOSS OR DAMAGE, OUR LIABILITY SHALL NOT EXCEED WHAT HAS BEEN PAID FOR THE GOODS IN YOUR ORDER TOGETHER WITH THE COSTS OF SHIPPING ALSO PAID.
13.4 NOTHING IN THESE CONDITIONS OF SALE LIMITS OR EXCLUDES OUR LIABILITY FOR ANY LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW INCLUDING BUT NOT LIMITED TO:
(a) DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE;
(b) FRAUD OR FRAUDULENT MISREPRESENTATION; AND
(c) DEFECTIVE PRODUCTS UNDER THE UNIFORM COMMERCIAL CODE.
13.5 PLEASE NOTE THAT IN SOME JURISDICTIONS CONSUMER PROTECTION LAWS MAY NOT ALLOW CERTAIN EXCLUSIONS OR LIMITATION OF WARRANTIES OR LIABILITIES, AND CONSEQUENTLY SOME OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY.
14. How we may use your personal information
15. Events Outside Our Control
15.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by an Event Outside Our Control. An Event Outside Our Control means any act or event beyond our reasonable control, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport or any issues as outlined in clause 3.6.
16. Other important terms
16.1 You may only transfer your rights or your obligations under these Conditions to another person if we agree to this in writing. This Contract is between you and us. No other person shall have any rights to enforce any of its terms.
16.2 We amend these Conditions from time to time. Each time you order Goods from us, the Conditions in force at the time of your Order apply to the Contract between you and us.
16.3 Each of the paragraphs of these Conditions operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
16.4 If we do not insist immediately that you do anything you are required to do under these Conditions, or if we delay in taking steps against you in respect of your breaking this Contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. For example, if you miss a payment and we do not chase you but we continue to provide the Goods, we can still require you to make the payment at a later date.
16.5 All intellectual property rights to, ownership of, and interest in all goods, trademarks, trade names, logos, distinctive marks, designs, and other materials created and/or made available by Touch up paint factory hereunder or within the framework of the relationship between you and Touch up paint factory (“Intellectual Property”) are vested exclusively in touchuppaintfactory. You shall not reproduce, modify, transfer, grant, assign, license or use the Intellectual Property, except in accordance with these Conditions. You shall not remove or alter indications concerning intellectual property rights and concerning the confidential nature of information from goods, services, programs, works, distinctive marks, inventions, designs, models and other materials created and/or made available by Touch up paint factory and the Goods delivered. You shall not alter, or have altered, modify, or have modified, adapted or otherwise reconfigured, the Goods, works, distinctive marks, inventions, designs, models and other materials created and/or made available by touchuppaintfactory.
16.6 These Conditions are governed and construed by Delaware law without reference to conflict of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This does not affect the applicable mandatory rights under the law of your country of residence. In the event of a dispute arising from or relating to these Conditions, which is not resolved by negotiation between you and Touch up paint factory, you and Touch up paint factory hereby agree to personal exclusive jurisdiction in the state and federal courts located in Chicago, Illinois.
16.7 Without any restriction to bring proceedings before a court, you and Touch up paint factory will first make reasonable efforts for a period of thirty (30) calendar days to resolve amicably any dispute or failure to agree that may arise out of or relate to the Goods, the Conditions or any breach thereof.