Terms & Conditions
Pergola Kits USA’s Terms of Service Agreement
Thank you for visiting PergolaKitsUSA.com. PergolaKitsUSA.com and its associated services (collectively, the “Website”) are provided by Pergola Kits USA, Inc. a New York corporation (“Pergola Kits USA”). Throughout the Website, the terms “we”, “us” and “our” refer to Pergola Kits USA. Pergola Kits USA offers this website, including all information, tools, services, and products available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.
By visiting our Website, or creating a User Account, or purchasing something from us, or inquiring about a purchase, or inquiring about our products and their use, you engage in our “Services” and agree to be bound by the following terms and conditions (“Terms,” or “Agreement”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. This Agreement applies to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.
Please read this Agreement carefully before accessing or using our Website. By accessing or using any part of the site, you agree to be bound by this Agreement, and your use of our Website is expressly made conditional upon your acceptance of the terms and conditions of this Agreement. If you do not agree to all the terms and conditions of this Agreement, then you may not access the Website, purchase products from the Website, or use our Services.
Any new products, and any new web features or tools, which are added to the current Website will also be subject to the Terms in this Agreement. You can review the most current version of this Agreement at any time on this page. We reserve the right to update, change, or replace all or any part of the Terms of this Agreement by posting updates and/or changes to our Website. Upon any update or change to this Agreement, we will provide notice to you via email, if your email address is on file with us. If your email address is not on file with us, or if you have opted out of email communications from us, it is your responsibility to check this page periodically for changes. Your continued use of or access to the Website following the posting of any changes constitutes your manifestation of assent to and acceptance of those changes.
Pergola Kits USA hereby incorporates its Privacy Notice as if fully restated herein. You must review Pergola Kits USA’s Privacy Notice to understand what personal and personally identifiable information we may collect from you when you use the Website, create a User Account, and/or purchase products from the Website, and how we may use that personal or personally identifiable information.
NOTICE OF ARBITRATION. THIS TERMS OF SERVICE AGREEMENT CONTAINS AN ARBITRATION PROVISION AND CLASS ACTION WAIVER THAT APPLIES TO ALL CLAIMS EXCEPT FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT OR THOSE THAT CAN BE BROUGHT IN SMALL CLAIMS COURT. EXCEPT AS OTHERWISE STATED UNDER THE TERMS OF THIS AGREEMENT, AND IF YOU DO NOT OPT-OUT OF ARBITRATION AS SET FORTH BELOW, YOU AGREE THAT ANY AND ALL DISPUTES BETWEEN YOU AND PERGOLA KITS USA WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE YOUR RIGHT TO BRING OR RESOLVE ANY DISPUTE AS, OR PARTICIPATE IN, A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR ARBITRATION.
1. User Eligibility. The Website is open to use to those who are age eighteen (18) or above. By using the Website and otherwise engaging in our Services, you warrant that you are age eighteen (18) or above, are of sound mind, and have the capacity to agree to and uphold the terms and conditions contained within this Agreement. If you use the Website on behalf of a business entity or other third party, you warrant that you express actual authority to act as an agent of that business entity and third party and, as a component of that agency, have the right and ability to agree to the terms of this Agreement on behalf of that third party or business entity. You further warrant that you are not prohibited from entering into this Agreement by the terms of any preexisting agreement.
You may create a User Account by registering your name, providing certain information about yourself, and creating a password. You agree that you will provide complete, current and accurate information about yourself as requested, and that you will keep that information up to date. You are responsible for safeguarding the confidentiality of your username and password that you use to access your member account on the Website. You agree not to disclose your username or password to any third party. YOU AGREE THAT YOU ARE SOLELY AND FULLY RESPONSIBLE FOR ANY ACTIVITIES OR ACTIONS TAKEN UNDER YOUR ACCOUNT, WHETHER OR NOT YOU HAVE AUTHORIZED SUCH ACTIVITIES OR ACTIONS. You will immediately notify Pergola Kits USA of any unauthorized use of your account on any of our Website.
2. Intellectual Property Rights. The Website and its associated trademarks and content are owned and used by Pergola Kits USA, including, but not limited to, Pergola Kits USA’s trademarks:
PERGOLA KITS USA™
and
®.
Any use of the Website, its associated trademarks, or its content without the prior written approval of Pergola Kits USA is prohibited. The selection, arrangement, and layout of the Website is the sole and exclusive property of Pergola Kits USA, and any unauthorized copying, public display, public performance, distribution, or derivation, whether in whole or in part, is expressly prohibited.
3. User Generated Content. Pergola Kits USA may provide you with the ability to upload, contribute, or transmit user-generated content to or through the Website including, but not limited to, product reviews (“User Feedback”). You may also send certain specific submissions per our request (for example, contest entries or promotional submissions) or, if without a request, you may send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (“User Comments”) (User Feedback and User Comments are collectively “User-Generated Content”).
You warrant that your User-Generated Content will not (i) violate any law, statute, regulation, or ordinance, whether local, state, provincial, national, or international, (ii) violate any term or condition of this Agreement, or (iii) violate the rights of third parties, including intellectual property rights and any other personal or proprietary rights.
By submitting User-Generated Content to Pergola Kits USA, you grant us a non-exclusive, irrevocable, royalty free, worldwide, and perpetual license to use your User-Generated Content for the customary and intended purposes of the Services. By submitting User-Generated Content to us, you waive all moral rights or rights of publicity or privacy with respect to the User-Generated Content submitted to us. When posting User Feedback to the Website, you warrant that your User Generated Feedback will be accurate, truthful, non-deceptive, and complete.
You agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any User Comments that you forward to us. We are and shall be under no obligation (1) to maintain any User Comments in confidence; (2) to pay compensation for any User Comments; or (3) to respond to any User Comments.
Pergola Kits USA assumes no responsibility, and cannot be held liable for, User-Generated Content or the conduct of any users that submits User-Generated Content to us.
4. Acceptable Use Policy. When you use the Website, you agree to use it only for its customary and intended purposes and as permitted by the terms of this Agreement and any applicable law, regulation, statute, or ordinance. Additionally, you agree that you are responsible for any breach of your obligations under the terms of this Agreement and for any losses suffered by Pergola Kits USA for such a breach, including, but not limited to, monetary damages, costs, and attorneys’ fees. You are expressly prohibited from using the Website to violate any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national, or international, or to violate the rights of a third party, including, but not limited to, intellectual property rights, privacy rights, rights of publicity, or other personal or proprietary rights. Additionally, you are expressly prohibited from:
a. Attempting to access the Website other than through a standard web browser unless you have been permitted to do so by Pergola Kits USA through a separate, written agreement (this restriction does not apply to search engines that comply with Pergola Kits USA’s robots.txt file);
b. Accessing or attempting to access the Website through automated means (this restriction does not apply to search engines that comply with Pergola Kits USA’s robots.txt file);
c. Circumventing the technological protection measures of the Website;
d. Posting or transmitting content intended to collect personal or personally identifiable information from users of the Website or third parties;
e. Disrupting or otherwise interfering with the Website or its associated servers or networks;
f. Scraping, reproducing, republishing, selling, reselling, duplicating, or trading the Website or its content;
g. Diverting or attempting to divert customers of the Website to another website or service;
h. Sending unsolicited or unauthorized communications to users of the Website or third parties;
i. Transmitting content to the Website that is false, inaccurate, misleading, tortious, defamatory, vulgar, obscene, libelous, invasive, hateful, or otherwise objectionable;
j. Reverse engineering, decompiling, translating, or disassembling the Website or its content; and
k. Encouraging or assisting any other party to do anything in violation of the terms of this Agreement.
Pergola Kits USA reserves the right to modify, amend, or terminate the Website or its associated content at any time and without prior notice. We also reserve the right to refuse service or access to the Website to any person or business entity at any time and without notice.
5. Pricing and Product Availability. Certain products or services may be available exclusively online through the Website. These products or services may have limited quantities and may not be available from time to time. Most products displayed on this Website can be ordered and delivered within the contiguous United States . In the event that you place an order that cannot be delivered in whole or part, you will be notified via email.
We have made every effort to display as accurately as possible the colors and images of our products that appear on our Website. We cannot guarantee that your computer monitor’s display of any color will be accurate. When using our software to design your own, custom product, you understand and agree that the product you receive will not look identical to the digital rendering displayed by the software. We retain the right to adjust the price of custom designed orders up until the point of sale, and the initial quote displayed on the screen—which will adjust itself as you design your product—may not be the final cost of the custom product at the time of purchase.
All descriptions of products or product pricing are subject to change at anytime without notice, at the sole discretion of Pergola Kits USA. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this Website is void where prohibited.
All prices quoted on this Site are in United States Dollars. We have no control over and make no guarantees with regard to exchange rates and fees that may be used by financial institutions outside the continental United States for orders placed through them.
6. Product Use. All of the products purchased from us should be used in accordance with our and the manufacturer’s instructions, precautions, and guidelines. Parents or legal guardians of all minors should consult the minor’s physician prior to allowing their minor child to use products or services from Pergola Kits USA. Reference to or presentation or sale of any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by Pergola Kits USA.
We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers, or distributors.
7. Ordering and Payment. Payment for all orders placed through the Website or otherwise communicated to us must be made at the time of ordering. You understand and agree that the prices quoted on the Website are an invitation to deal and that no contract will be formed between you and Pergola Kits USA until Pergola Kits USA accepts your invitation to deal by performance, specifically, by shipping the ordered goods. This includes quotes based on custom designs you create to order using our design software. Pricing errors will not constitute a contract between you and Pergola Kits USA, and Pergola Kits USA strives to quickly correct any pricing errors on the Website when discovered. All costs and fees are quoted and payable in United States Dollars and you acknowledge and agree that Pergola Kits USA is not responsible for any foreign transaction fees or other fees charged to you by your financial institution or by Pergola Kits USA payment processor. You agree that you will not initiate any chargebacks to Pergola Kits USA unless otherwise authorized by Pergola Kits USA in writing. You understand and agree that you will be responsible and required to pay for any costs associated with any chargebacks that you have initiated against Pergola Kits USA.
It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to any item purchased through our Website including but not limited to any applicable zoning or building codes. It is your responsibility to have your kit/structure engineered to withstand the wind, snow, seismic, and other forces and conditions possible at the location where you will assemble it. By placing an order, you represent that the products ordered will be used only in a lawful manner.
8. Taxes. You agree that You will pay all taxes assessed by governmental bodies, whether local, state, provincial, national, or international, associated with your use of and/or purchase of goods through the Website.
9. Shipping. Pergola Kits USA ships to the 48 contiguous United States. Shipping rates will be calculated at checkout. For more details regarding Pergola Kits USA’s shipping practices and current rates, please visit our Shipping and Returns page, which is incorporated into this Agreement in full.
Title and risk of loss for any purchases pass to you upon our delivery to our carrier.
10. Refunds and Exchanges. For more details regarding our return and exchange policies, please see our Shipping and Returns page, which is incorporated into this Agreement in full.
PLEASE NOTE: CUSTOM DESIGNED PRODUCTS ARE NOT ELIGIBLE FOR RETURN OR REFUNDS.
11. Accuracy of Billing and Account Information. Pergola Kits USA reserves the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made.
You agree to provide current, complete, and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
12. Electronic Communications. You agree to receive communications from us electronically (via email). You agree that all agreements, notices, disclosures, and other communications we provide to you electronically satisfy any and all legal requirements that such communications be in writing.
13. Third-Party Websites. You acknowledge and agree that the Website may contain links to third-party websites or content that we do not own or control. You are advised to review the terms and conditions of any third-party websites or content linked to through the Website, and you agree that we will not be responsible for websites not under the ownership or control of Pergola Kits USA.
14. Errors and Omissions. Occasionally there may be information on our Website or our packaging that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times, and availability. We reserve the right to correct any errors, inaccuracies, or omissions, and to change or update information or cancel orders if any information in the Services or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
15. Term and Termination. The term of this Agreement will begin upon your first accessing of the Website and will continue until the earlier of the following: (i) Pergola Kits USA terminates your access to the Website; or (ii) you cease using the Website. We reserve the right to terminate the Website or your access to the Website in our sole and absolute discretion and without prior notice.
16. Disclaimer of Warranties and Limitation of Liability.
a. YOU ACKNOWLEDGE AND AGREE THAT THE WEBSITE AND THE PRODUCTS SOLD THROUGH THE WEBSITE ARE PROVIDED ON AN “AS-IS” BASIS AND, EXCEPTING THE LIMITED PRODUCT WARRANTIES IDENTIFIED IN SECTION 16.B, WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, AND NON-INFRINGEMENT. WHEREVER PERMITTED BY LAW, YOU ACKNOWLEDGE THAT PERGOLA KITS USA WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CLAIMS, DAMAGES, JUDGMENTS, CHARGES, OR FEES ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO THE WEBSITE, OR YOUR USE OR MISUSE OF PRODUCTS PURCHASED THROUGH THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, COSTS AND ATTORNEYS’ FEES, DAMAGES ARISING OUT OF ERRORS OR OMISSIONS, AND DAMAGES ARISING OUT OF THE UNAVAILABILITY OF THE WEBSITE OR DOWNTIME. YOU ACKNOWLEDGE THAT YOUR USE OF THE WEBSITE AND THE PRODUCTS PURCHASED THROUGH THE WEBSITE ARE AT YOUR SOLE RISK. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH SERVICES IS TO STOP USING THE SERVICES, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH PRODUCTS IS TO OBTAIN A REFUND IN ACCORDANCE WITH THESE TERMS WHERE AVAILABLE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF PERGOLA KITS USA ARISING OUT OR IN CONNECTION WITH THE PROVISION OF OR FAILURE TO PROVIDE ANY PRODUCTS OR SERVICES SHALL BE THE ACTUAL PRICE PAID BY YOU FOR SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IF YOU ARE LOCATED IN SUCH A JURISDICTION, YOU ARE ADVISED TO SEEK LEGAL ADVICE TO DETERMINE IF THIS EXCLUSION APPLIES TO YOU.
b. PERGOLA KITS USA OFFERS LIMITED WARRANTIES ON ALL OF ITS PRODUCTS. MORE DETAILS REGARDING THOSE WARRANTIES CAN BE FOUND ON THE INDIVIDUAL PRODUCT’S WEBPAGE OR BY CONTACTING PERGOLA KITS USA FOR QUALIFYING PRODUCTS.
c. EXCEPTING THE LIMITED PRODUCT WARRANTIES DETAILED IN SECTION 16.B, PERGOLA KITS USA WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY, WHETHER IN WARRANTY, CONTRACT, STRICT LIABILITY, TORT, OR NEGLIGENCE, FOR ANY DAMAGES, CLAIMS, INJURIES, JUDGMENTS, COSTS, OR LIABILITIES OF ANY KIND ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF PRODUCTS PURCHASED THROUGH THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, DAMAGE TO PROPERTY, LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE.
17. Indemnification. You agree to indemnify, defend, and hold harmless Pergola Kits USA, its officers, shareholders, directors, employees, subsidiaries, affiliates, and representatives from any and all losses, including, but not limited to, costs and attorneys’ fees, arising out of or related to (i) your use of the Website, (ii) your purchase of products through the Website; (iii) your use or misuse of products obtained through the Website; (iv) your violation of any term or condition of this Agreement; (v) your violation of the rights of third parties, including, but not limited to, intellectual property rights or other personal or proprietary rights; and (vi) your violation of any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national, or international. Your obligation to defend Pergola Kits USA will not provide you with the ability to control Pergola Kits USA’s defense, and Pergola Kits USA reserves the right to control its defense, including its choice of counsel and whether to litigate or settle a claim subject to indemnification.
18. Choice of Law and Stipulation to Jurisdiction.
a. You and Pergola Kits USA agree that any dispute arising out of or related to this Agreement or your use of the Website, including, but not limited to, your purchase of goods through the Website, will be governed by the laws of the State of New York, without regard to its conflict of laws rules. Specifically, the validity, interpretation, and performance of this Agreement will not be governed by the United Nations Convention on the International Sale of Goods. Except for claims that may be brought in small claims court, claims of intellectual property infringement, or claims for injunctive relief by either party, you and Pergola Kits USA agree that any dispute or controversy arising out of, in relation to, or in connection with this Agreement, your use of any products purchased through the Website, or your use of the Website including, without limitation, any and all disputes, claims (whether in tort, contract, statutory, or otherwise), or disagreements concerning the existence, breach, interpretation, application, or termination of this Agreement, will be resolved by final and binding arbitration pursuant to the Federal Arbitration Act in Nassau County, New York or, at the option of the party seeking relief, by telephone, online, or via written submissions alone, and be administered by the American Arbitration Association (“AAA”) under the then in force Commercial Arbitration Rules by one arbitrator appointed in accordance with such rules. Such arbitration will be independent and impartial. If the parties fail to agree on the arbitrator within twenty (20) calendar days after the initiation of the arbitration hereunder, AAA will appoint the arbitrator.
b. This arbitration will be conducted in the English language. The decision of the arbitrator will be final and binding on the parties and judgment on any award(s) rendered by the arbitrator may be entered in any court having jurisdiction thereof. Nothing in this section will prevent either party from seeking immediate injunctive relief from any court of competent jurisdiction, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. The parties undertake to keep confidential all awards in their arbitration, together with all confidential information, all materials in the proceedings created for the purpose of the arbitration and all other documents produced by the other party in the proceedings and not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in legal proceedings before a court or other judicial authority. The arbitrator shall award all fees and expenses, including reasonable attorney’s fees, to the prevailing party. Any judgment rendered by the arbitrator may be entered in any court of competent jurisdiction.
c. ANY DISPUTE RESOLUTION PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE USE OF THE WEBSITE, OR THE PURCHASE OR USE OF PRODUCTS FROM OR THROUGH THE WEBSITE, WHETHER IN ARBITRATION OR OTHERWISE, SHALL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, AND YOU AND PERGOLA KITS USA EXPRESSLY AGREE THAT CLASS ACTION AND REPRESENTATIVE ACTION PROCEDURES SHALL NOT BE ASSERTED IN NOR APPLY TO ANY ARBITRATION PURSUANT TO THESE TERMS.
d. Any claims must be brought within one year of each applicable purchase or will otherwise be barred, excepting claims regarding product warranties, which must be brought within 45 days from the date the defect or failure arises.
e. Any claims not subject to arbitration under this Agreement must be brought in Nassau County in the State of New York and will be governed by the laws of the State of New York, without regard to its conflict of laws rules. By using the Website and agreeing to these terms, you waive any argument regarding improper venue.
19. Force Majeure. Pergola Kits USA will not be responsible for any delay or failure in performance of the Website or its associated products arising out of any cause beyond Pergola Kits USA’s control, such as acts of God, war, riots, fire, terrorist attacks, pandemics, power outages, severe weather, or other accidents.
20. Survivability. The representations, warranties, duties, and covenants made by you under this Agreement will survive the termination of this Agreement or the Website, including, but not limited to, your duty to indemnify and defend Pergola Kits USA.
21. Interpretation. This Agreement will be deemed to have been drafted by both parties, and the terms and conditions of this Agreement will not be interpreted against its drafter.
22. Assignment. You are expressly prohibited from assigning your rights and duties under this Agreement. Pergola Kits USA reserves the right to assign its rights and duties under this Agreement, including in a sale of Pergola Kits USA or its Website.
23. Waiver and Integration. No term or condition of this Agreement or breach of this Agreement will be deemed to have been waived or consented to unless said waiver is writing and signed by the party to be charged. This Agreement is the entire agreement between the parties and supersedes all previous agreements or representations between the parties.