The distance selling of products bearing the trademarks “Diesel”) (the (“Products”), owned by the company Diesel USA Inc. (the “Seller”), through telephone and/or WhatsApp and/or via email is governed by these general sale conditions (the “General Conditions”).
The distance selling of such Products, by means of the above-mentioned methods, is made directly by Diesel USA Inc., with registered office in 220 West 19th Street, New York, NY 10011, USA (hereinafter the “Seller”) according to the provisions set out below in these General Conditions. Each customer may request additional information from the sales staff of the retail store with whom the former interacts for the completion of the sale. Each customer, who has purchased Products through this method, may also obtain information on orders and shipments, refunds and returns of said Products. Users are also reminded of the right to contact the Seller directly, also by e-mail, at the e-mail address of the retail store.
IMPORTANT NOTICE: PLEASE NOTE, EXCEPT WHERE PROHIBITED BY LAW (INCLUDING THE PROVINCE OF QUEBEC), THE ARBITRATION REQUIREMENT AND CLASS ACTION WAIVER SET FORTH IN ARTICLE 10 OF THESE GENERAL CONDITIONS REQUIRES YOU TO ARBITRATE CLAIMS YOU MAY HAVE AGAINST US ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY.
1. THE SELLER'S COMMERCIAL POLICY
1.1 The Seller offers the Products available at certain retail stores through telephone, and/or WhatsApp video call/chat and/or email ordering (“Distance Selling Program”). The Seller offers its Distance Selling Program exclusively to customers who purchase the Products available in the applicable retail stores through the methods above described and who qualify as "consumers" ("Purchasers" and each of them "Purchaser"). “Consumers” means exclusively the natural persons who enter a purchase contract for the satisfaction of everyday life needs and unrelated to the entrepreneurial or professional activity that he or she may carry out; on the other hand, anyone who enters the contract in the exercise of any entrepreneurial or professional activity or for a related purpose shall be considered a “professional” and not a “consumer.”
1.2 If the customer, i.e., potential Purchaser, does not fall within the definition of "consumer" but, on the contrary, qualifies as a “professional” and, therefore, is not acting as defined under article 1.1 above, he/she is not permitted to purchase products via the Seller’s Distance Selling Program.
1.3 In consideration of its commercial policy, the Seller reserves the right not to complete orders from persons who, in the Seller’s discretion, do not fall within the definition of "consumer" and/or, in any case, orders that do not comply with its commercial policy and/or are not in line with these General Conditions.
1.4. These General Conditions represent the entire agreement between the Seller and Purchasers with respect to the purchase of the Seller’s Products via the Distance Selling Program (the "Orders").
1.5 Certain areas, features, or functionality of the Distance Selling Program may be subject to different or additional terms, rules, guidelines or policies (“Additional Rules”), and we may provide such additional rules to you via postings, pop-up notices, links, or other means at the time that you access or use the relevant area, feature or functionality. From time to time, such additional rules may conflict with these General Conditions. In the event of such a conflict, the Additional Rules will control. Any reference to the “General Conditions” in this agreement includes the Additional Rules.
2. TERMS OF EXECUTION OF THE CONTRACT WITH THE SELLER
2.1 Only persons who have reached the age of 18 or the age of majority in their jurisdiction of residence (whichever is greater)and who are not in conditions of legal incapacity may place Orders. The Purchaser, to enter into a contract with the Seller, for the purchase of one or more Products in the manner described above and to complete the sale (the "Contract"), must agree to these General Conditions and follow the instructions that will be sent to him electronically, in the various phases guiding to the execution of the Contract. The Seller will send a copy of the General Conditions by email/WhatsApp, as applicable, attaching it to the summary of the terms of the offer, for the Purchaser’s future reference. By using the Distance Selling Program you, the Purchaser, are signalling your agreement to these General Conditions.
3. DESCRIPTION OF THE PRODUCTS AND SPECIFICATION OF PRICES
3.1 Only original Products are offered via the Distance Selling Program.
3.2 The Seller does not sell used Products via the Distance Selling Program.
3.3 The Seller will explain the essential characteristics of the Products, including the price, by email/WhatsApp and/or by telephone, prior to finalizing the Order.
3.4 The prices of the Products include applicable taxes or duties but do not include the shipment costs, if any. The total price of the chosen Products, including all charges, will be indicated in the offer’s summary message that will be sent by the Seller, via WhatsApp or email, to the Purchaser.
3.5 The Purchaser may only purchase Products that are available in the retail store with which Purchaser is communicating. The Seller will endeavour to confirm that the Product in question is available prior to finalizing any Order. If, however, after the finalization of the Order or payment by the Purchaser, the Product is no longer available, the Seller will notify the Purchaser as soon as possible and refund any amounts paid by the latter as soon as possible.
4.1 Purchasers who are not satisfied with any purchased Products can receive a full refund by returning the Products to the Seller in within 30 (thirty) days of receipt of the Product, in accordance with the requirements in these General Conditions.
4.2 In order to exercise this right, the Purchaser must send a communication expressing his desire to initiate a return. Specifically, the Purchaser must send a request to the applicable retail store either by email or by registered mail. As indicated in Article 8, the contact information for the applicable retail store will be provided to the Purchaser through the course of the Distance Selling Program.
4.3 In exercising the return option, the Purchaser shall return the goods to the Seller without undue delay and in any event within 30 (thirty) days from the date on which it communicated its decision to exercise such right. The term is met if the Purchaser ships the goods before the expiration of the 30 (thirty) day period. The goods do not need to be received by the Seller prior to the expiration of the 30 (thirty) day period. The Products must be returned to the retail store from which the purchase was made, at the address indicated in the message to the Purchaser stating the return policy. For any doubts regarding the procedures for returning the Products, the Purchaser may contact the Seller in the manner indicated in Article 8 below.
4.4 After a successful return, the Purchaser will be refunded all payments made, including the delivery costs, except for any additional costs that result where the Purchaser has expressly chosen a type of delivery other than the least expensive type offered by the Seller. Costs incurred by the consumer in returning the goods shall remain his burden.
4.5 Such refunds will be made using the same means of payment used by Purchaser for the initial transaction, unless the Purchaser has expressly agreed otherwise. Refunds will only be issued once the returned goods have been received by the Seller and the Seller has determined that all applicable return requirements have been met, including those pertaining to the condition of the goods found in Article 4.6.
4.6 In the event the Purchaser initiates a return, the Seller has the right to refuse the return of the Products or to deny reimbursement in full of the sums paid by the Purchaser for the purchase of those Products which, as returned, have no relevant tag and/or which have been altered and/or damaged in any way. All such determinations will be made by the Seller in its sole discretion.
5. WARRANTY & PRODUCT INFORMATION
5.1 Upon discovery of a defect in the Product, the Purchaser shall have the right to request repair or replacement of the Product, at the Purchasers’ option and without charge in either case, unless the remedy requested is objectively impossible or unduly burdensome compared to the other. All determinations as to whether a Product is defective, and as to the availability of remedies, shall be made by the Seller, in its sole discretion.
5.2 Should replacement and repair prove to be excessively burdensome or impossible for the Seller, as determined in the Seller’s sole discretion, the Purchaser may request termination of the contract (with refund of the purchase price by the Seller, subject to return of the Product by the Purchaser) or reduction of the purchase price. Any decisions regarding the appropriate price reductions shall be made by the Seller in its sole discretion.
5.3 The warranty described in this Article 5 is valid for 2 (two) years from the date of delivery of the Product to the Purchaser. It is understood that the Purchaser will lose this right if he does not report the conformity defect to the Seller within the term of 2 (two) months from the date in which he discovered the defect. The Purchaser must keep the receipt as original proof of purchase of the Product, which must be attached to activate the warranty.
5.4 The Seller strives to be as accurate as possible and eliminate errors in connection with the Distance Selling Program. However, there may be information presented that contains typographical errors, inaccuracies or omissions that may relate to Product descriptions, pricing, promotions, offers, or availability, or other information pertaining to the Distance Selling Program. Certain Products advertised may have limited quantities and may not always be available. The prices displayed are quoted in U.S. Dollars, and are subject to change without notice. We reserve the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice (including after the Purchaser has submitted an Order), and the Purchaser’s sole remedy in the event of such error is to cancel the Order.
5.5 The Seller strives to display the colors of the Products as accurately as possible, but the Seller cannot guarantee that the Purchaser’s device will display any of these colors in an accurate manner. The Seller does not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations. If a non-defective Product is not as described or pictured, or otherwise does not meet the Purchaser’s expectations, the Purchaser’s sole remedy is to return it in an unused condition for a refund, in accordance with Article 4 above.
6.1 For the payment of the Products’ price and the shipping and delivery charges, if any, the Purchaser will receive a link containing the instructions to complete the payment by email and/or via WhatsApp.
7. SHIPPING AND DELIVERY OF PRODUCTS
7.1 The Purchaser, at his/her own discretion, may decide either to receive the Products it has purchased at an address of its choice or to collect the purchased Products from the retail store chosen for the purchase among those indicated in the preamble. Such choice shall be communicated in writing to the Seller, via WhatsApp and/or by email, prior to executing the sale.
7.2 In the event that the Purchaser has chosen to receive the Products at the address indicated, delivery will be made within 7 working days from the sending of the email/WhatsApp message confirming the shipment.
7.3 Delivery is made by professional courier. Shipping costs, if any, are not included in the price but are indicated separately before finalizing the Order.
7.4 The Purchaser will receive by email/via WhatsApp the details of the shipment and courier. The Purchaser acknowledges and agrees that, to the maximum extent permitted by applicable law, the Seller shall have no liability for any damage to the goods that occurs during transportation of the goods by the Seller’s appointed courier.
8. CUSTOMER SERVICE
8.1 The Purchaser may request any information through the assistance services activated by the Seller at the retail store by contacting the interested retail store. The contact information for the applicable retail store will be provided to the Purchaser during the course of the Purchaser’s participation in the Distance Selling Program.
9. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
9.1 These General Conditions set forth all of Seller’s obligations and responsibilities with respect to the Distance Selling Program.
9.2 TO THE FULLEST EXTENT PERMITTED UNDER LAW, THE DISTANCE SELLING PROGRAM AND ALL PRODUCTS ARE PROVIDED "AS IS." EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THESE GENERAL CONDITIONS, THE SELLER MAKES NO REPRESENTATION, WARRANTY, OR CONDITIONS OF ANY KIND WHATSOEVER TO YOU OR ANY OTHER PERSON RELATING IN ANY WAY TO THE DISTANCE SELLING PROGRAM, THE CONTENT OR COMMUNICATIONS OF THE SAME, ANY WEBSITE OR OTHER CONTENT OR SERVICE THAT MAY BE ACCESSIBLE DIRECTLY OR INDIRECTLY THROUGH THE DISTANCE SELLING PROGRAM, OR ANY PRODUCTS OFFERED THROUGH THE DISTANCE SELLING PROGRAM, TO THE EXTENT PERMITTED BY LAW. THE SELLER DISCLAIMS IMPLIED WARRANTIES AND CONDITIONS THAT THE DISTANCE SELLING PROGRAM, THE SOFTWARE, CONTENT, SERVICES, AND INFORMATION DISTRIBUTED THROUGH THE DISTANCE SELLING PROGRAM, AND ANY PRODUCTS OFFERED THROUGH THE DISTANCE SELLING PROGRAM ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, TIMELY, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE SELLER OR A REPRESENTATIVE SHALL CREATE A WARRANTY.
THE SELLER DOES NOT GUARANTEE THAT THE DISTANCE SELLING PROGRAM OR ANY PRODUCTS OFFERED THROUGH THE DISTANCE SELLING PROGRAM WILL MEET THE PURCHASER’S REQUIREMENTS. WE DO NOT GUARANTEE THAT THE SERVICES THAT MAY BE OBTAINED FROM THE USE OF THE DISTANCE SELLING PROGRAM, INCLUDING ANY SUPPORT SERVICES, WILL BE EFFECTIVE, RELIABLE, AND ACCURATE OR MEET YOUR REQUIREMENTS. WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE DISTANCE SELLING PROGRAM (EITHER DIRECTLY OR THROUGH THIRD-PARTY NETWORKS) AT ALL TIMES OR LOCATIONS OF YOUR CHOOSING.
FURTHER, THE SELLER DOES NOT ENDORSE AND MAKES NO WARRANTY REGARDING THE ACCURACY OR RELIABILITY OF ANY OPINION, INFORMATION, ADVICE OR STATEMENT CONVEYED TO THE PURCHASERS IN CONNECTION WITH THE DISTANCE SELLING PROGRAM. UNDER NO CIRCUMSTANCES WILL THE SELLER BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A PURCHASER’S RELIANCE ON INFORMATION OBTAINED THROUGH THE DISTANCE SELLING PROGRAM. IT IS THE PURCHASER’S RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION, OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE DISTANCE SELLING PROGRAM.
SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
9.3 TO THE FULLEST EXTENT PERMITTED UNDER LAW, THE SELLER WILL HAVE NO OBLIGATION OR LIABILITY (WHETHER ARISING IN CONTRACT, WARRANTY, TORT, INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE) FOR ANY DAMAGES OR LIABILITIES, INCLUDING DIRECT, INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL (INCLUDING ANY LOSS OF DATA, REVENUE OR PROFIT OR DAMAGES ARISING FROM PERSONAL INJURY/WRONGFUL DEATH) ARISING WITH RESPECT TO YOUR USE OF THE DISTANCE SELLING PROGRAM, INCLUDING ANY PRODUCTS PURCHASED THROUGH THE SAME, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO DAMAGES ARISING FROM (i) USE OF OR INABILITY TO USE THE DISTANCE SELLING PROGRAM, (ii) COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS BY THIRD PARTIES, (iv) THIRD PARTY CONTENT MADE AVAILABLE TO YOU THROUGH THE SITES, OR (v) ANY OTHER MATTER RELATING TO THE DISTANCE SELLING PROGRAM. IN ADDITION, WHEN USING THE DISTANCE SELLING PROGRAM, INFORMATION WILL BE TRANSMITTED OVER A MEDIUM WHICH IS BEYOND THE CONTROL AND JURISDICTION OF THE SELLER, ITS PARTNERS, ADVERTISERS, AND SPONSORS. ACCORDINGLY, THE SELLER ASSUMES NO LIABILITY FOR OR RELATING TO THE DELAY, FAILURE, INTERRUPTION, OR CORRUPTION OF ANY DATA OR OTHER INFORMATION TRANSMITTED IN CONNECTION WITH USE OF THE DISTANCE SELLING PROGRAM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
9.4 The Purchaser agrees to defend (at the Seller’s option), indemnify, and hold the Seller harmless from and against any and all liabilities, claims, damages, costs, and expenses, including attorneys’ fees and costs, arising from or related to the Purchaser’s misuse of the Distance Selling Program or any breach by the Purchaser of these General Conditions. The Seller reserves the right, at the Seller’s expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by the Purchaser and, in any case, the Purchaser agrees to cooperate with the Seller if and as requested by the Seller in the defense and settlement of such matter.
10. DISPUTE RESOLUTION; AGREEMENT TO ARBITRATE; APPLICABLE LAW
10.1 By using the Distance Selling Program, the Purchaser and the Seller agree that, if there is any controversy, claim, action, or dispute arising out of or related to the Purchaser’s use of the Distance Selling Program, including the purchase or use of any Products, or the breach, enforcement, interpretation, or validity of these General Conditions or any part of them (“Dispute”), both parties shall first try in good faith to settle such Dispute by providing written notice to the other party describing the facts and circumstances of the Dispute and allowing the receiving party thirty (30) days in which to respond to or settle the Dispute. Notice shall be sent to:
The Seller, at Diesel USA Inc., 220 West 19th Street, New York, NY 1011, USA or
The Purchaser, at the contact information we have on file for you.
EXCEPT WHERE PROHIBITED BY LAW (INCLUDING THE PROVINCE OF QUEBEC), both the Purchaser and the Seller agree that this dispute resolution procedure is a condition precedent that must be satisfied before initiating any litigation or filing any claim against the other party.
EXCEPT WHERE PROHIBITED BY LAW (INCLUDING THE PROVINCE OF QUEBEC), IF ANY DISPUTE CANNOT BE RESOLVED BY THE ABOVE DISPUTE RESOLUTION PROCEDURE, THE PURCHASER AGREES THAT SUCH DISPUTE WILL BE DECIDED EXCLUSIVELY BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT THE PURCHASER WILL NOT HAVE, AND HEREBY WAIVES, THE RIGHT FOR A JUDGE OR JURY TO DECIDE ITS CLAIMS, AND THAT THE PURCHASER MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY. Other rights that the Purchaser and the Seller would otherwise have in court will not be available or will be more limited in arbitration, including discovery and appeal rights.
All such Disputes shall be exclusively submitted to JAMS (www.jamsadr.com) for binding arbitration under its rules then in effect, before one arbitrator to be mutually agreed upon by both parties. The arbitration shall be conducted in accordance with the JAMS Consumer Arbitration Minimum Standards (https://www.jamsadr.com/consumer-minimum-standards/) if these standards are deemed by JAMS or the arbitrator to be applicable to the Dispute. The location of any hearings will be determined by the applicable JAMS rules, provided that if the claim is for $10,000 or less, the Purchaser may choose to have the arbitration conducted (1) solely on the basis of the documents submitted to the arbitrator or (2) through a non-appearance based hearing by teleconference or videoconference.
The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any Dispute arising under or relating to the interpretation, applicability, enforceability, or formation of these General Conditions, including any claim that all or any part of these General Conditions are void or voidable. For the avoidance of doubt, the Purchaser and the Seller agree that the arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of this arbitration agreement or the arbitrability of any claim or counterclaim. The arbitrator may award (on an individual basis) any relief that would be available in a court. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.
Notwithstanding the foregoing, in lieu of arbitration either the Purchaser or the Seller may (1) bring an individual claim in small claims court in the United States consistent with any applicable jurisdictional and monetary limits that may apply and (2) file an individual claim in court to enjoin the infringement or other misuse of its intellectual property rights, provided that any such claim is brought and maintained on an individual basis.
10.2 For US residents: These General Conditions have been made in and shall be construed in accordance with the laws of the United States (including federal arbitration law) and the state of New York, without giving effect to any conflict of laws principles. Except for disputes or claims properly lodged in a small claims court in the United States, any disputes or claims not subject to the arbitration provision discussed above shall be resolved by a court located in the state of New York and the Purchaser agrees and submits to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action. The Purchaser further agrees that any such claims will be brought solely on an individual basis and not as part of any class, consolidated, or representative capacity.
The Purchaser and the Seller acknowledge that these General Conditions evidence a transaction involving interstate commerce. Any arbitration conducted pursuant to these General Conditions shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).
For Canadian residents: These General Conditions have been made in and shall be construed in accordance with the laws of your Canadian jurisdiction of residence, without giving effect to any conflict of laws principles.
11.1 Should any provision of these General Conditions be deemed invalid, void or for any reason unenforceable, such provision shall not affect the validity and enforceability of the others.
11.2 If the Seller fails to invoke any provision of the General Conditions at any time, this shall not be construed as a waiver of the right to invoke such provision (or any other provision of these General Conditions) at a later time.
11.3 Any event of force majeure will result in the suspension of the obligations contained in these General Conditions that are affected by the event of force majeure and the party affected by the event of force majeure will not be liable for the inability to perform these obligations.
11.4 These General Conditions do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Purchaser and the Seller.
11.5 Notice to California Residents. The Purchaser may reach the Seller as directed in Article 8 of these General Conditions. California residents may also reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
11.6 The Seller reserves the right to modify these General Conditions at any time. More generally, the Seller may change, restrict access to, suspend or discontinue the Distance Selling Program, or any portion of the Distance Selling Program, at any time and at the Seller’s sole discretion.