Thank you for visiting orders.navieninc.com and purchasing Navien, Inc.’s (“Navien”) units, products or related parts (collectively referred to as the “product(s) or items(s)”). The following General Terms & Conditions of Sale, along with our Terms of Use and Privacy Policy, govern your purchase (collectively, the “General Terms & Conditions of Service”). By purchasing Navien products on orders.navieninc.com or a related mobile application operated by Navien (a “Website” or “Websites”), you agree to be bound by these General Terms & Conditions of Sale and you represent and warrant that you have the right, authority, and capacity to contract with Navien for the purchase of the products and consent to these General Terms & Conditions of Sale in their entirety, and have read, understand, and agree to be bound by these General Terms & Conditions of Sale, including, but not limited to, the Dispute Resolution - Mandatory Arbitration and Class Action Waiver provision.
1. Users/COPPA (Children Online Privacy Protection Act).Individuals under the age of 18 are not eligible to use our Websites. Any user using, visiting, browsing, or making a purchase on a Website is certifying that he/she is over the age of 18. By using, visiting, browsing, or making a purchase on a Website or providing information on behalf of a company or other legal entity, you represent that you have the authority to bind that entity to these General Terms & Conditions of Sale. In that situation, “you” and “your” will refer to both you and that entity. We are committed to protecting the privacy of children. The Website is not designed or intended to attract individuals under the age of 18, and we do not knowingly collect personal information online from visitors under the age of 18. If you are a parent or guardian and you are aware that your child has violated these General Terms & Conditions of Sale and provided us with personal information, please contact us so that we may take steps to remove that information from our servers. If we become aware that we have collected information from children without verification of parental consent, we will take steps to remove that information from our servers.
2. Definitions
a) “Sales Order” means the receipt for your purchase of Navien products that is emailed to you and describes, among other things, the price and type of products purchased.
b) “You”, “you” or “your” means a company or individual who initiates, facilitates, or completes the transaction for the purchase of Navien products from a Website, and anyone acting on her/his behalf.
3. Orders. After the issuance of the order through the Website, Navien shall have the right to accept or reject the order received through the Website within 5 (five) business days after the receipt of the order.
4. Payment. Payment of the full purchase price, without any deduction, offset or credit, is due on the net thirty (30) days term after shipment from Navien which shall be FOB shipping from Navien’s warehouse location where the products were shipped or terms pursuant to your Navien sales agreement. You shall pay any and all shipping, transportation, freight, rigging, delivery and/or drayage costs, as well as any and all other costs associated with the shipping and/or delivery of the products purchase herein. A late charge equal to 1 ½% of the amount of the invoice per month, or the highest lawful rate which may be charged to you shall apply to late payments. You hereby grant to Navien a purchase money security interest under the Uniform Commercial Code (UCC) in products until such time as full payment is received by Navien.
5. Taxes. The sale price specified on the invoice does not include any amount for present or future sales, use, excise or other similar tax which may be applicable to the sale of the products. You agree to pay such taxes, including taxes applicable to manufacture, sale, delivery, or use of the products furnished herein, as well as interest and penalties therein. If Navien is required to pay such taxes to a taxing authority, you will promptly reimburse Navien for the amount paid.
6. Shipped Orders. You may be notified of the approximate delivery and arrival date(s) of the products ordered, but Navien does not guarantee nor warrant a particular day of delivery. Delivery of the products to a common carrier, licensed trucker, or vessel shall constitute delivery to you, and title to the products and risk of loss shall pass to you upon Navien’s delivery of the products to such common carrier, licensed trucker, or vessel. Navien shall not be liable for any delivery or shipping delays which arise from but which are limited to the following: fire, explosion, flood, storm, acts of God, government acts, orders and regulations, hostilities, civil disturbance, strike, labor difficulties, machinery breakdown, transportation contingencies, difficulty in obtaining supplies or shipping facilities or delays of carrier.
If your order arrives with damage, please contact Navien so we may assist you with a replacement order or refund. If you discover at the time of delivery broken or damaged items, refuse to accept the broken or damaged items with the carrier and, when applicable, note the damage on the delivery receipt. Any damaged or missing items must be reported to Navien within 5 (five) days of delivery.
7. Order Cancellation. If for some reason you need to cancel an order made using a Website, please contact Navien. An order cannot be canceled after the order is boxed for delivery and your order may not be eligible for return, and may be subject to a restocking fee.
Navien also reserves the right to cancel an order if it, in its sole discretion, suspects that there has been any misconduct, including, but not limited to, fraud.
8. Missing Orders. Missing orders and missing items must be reported to Navien within 48 hours of the carrier’s confirmation that the order was delivered.
9. Returns. Returns are subject to Navien’s Return Policy which was previously given to you and as available at www.navieninc.com. Unless Navien shall have authorized or permitted the return of any products pursuant to an Sales Return Authorization (“SRA”), Navien shall not be obligated to accept any returns, exchanges or provide any credits for any products. Unauthorized returns shall be subject to restocking charge equal to 20% of the products’ purchase price plus shipping fees. Returns without SRA will not be accepted. Before attempting to return the products, you must first contact Navien to confirm that the products are eligible for return and to learn Navien’s procedure for returning the products. If the products purchased by you are eligible for return, you may return them by shipping them back to Navien. If you ship the products back to Navien for a refund, you are responsible for all shipping costs.
Special orders are not eligible for return, and some returns will be subject to a restocking fee. Please contact Navien for more information.
All returns permitted under these General Terms and Conditions of Sale must include:
b) the products in their original packaging
c) all original materials supplied with the products; and
d) the products must be uninstalled and in new and unused condition.
All returns must be completed within 30 days of your receipt of the products.
10. Credit. If a return or exchange is accepted by Navien, any credit due will be issued via the payment method used for the purchase.
11. Re-stocking Fees/Resale. Where applicable a fixed fee or percentage of the total price of the products, excluding any shipping costs and sales tax, will be charged by Navien as a re-stocking fee. For more information, contact Navien before you complete your purchase. The products should be installed by a qualified installer as stated in the installation manual of the Navien products. If you need a copy of the installation manual as to a specific product, please contact Navien. The products shall not be resold by you or anyone via online. Unauthorized sale of Navien products to consumer through internet or any other e-commerce channel are strictly prohibited. You may not sell Navien products to anyone who does not follow Navien’s Resale Policy which you acknowledge that you have received and are available online at www.navienresources.com.
12. Claims & Inspection. You are solely responsible for inspecting the products for any visible damage or defects prior to installation. You must notify Navien of all claimed damage or defects within 5 (five) days of your receipt of the products. You agree that your failure to provide written notice to Navien within said time period shall constitute your unequivocal acceptance of the products and acknowledgment that there is no nonconformity, defect or problem with the products.
If you fail to inspect or notify Navien, you will be deemed to have accepted the products and to have waived any claim for defect(s). In the event of installation the products with a visible defect, Navien will not consider any claims related to the products.
13. Warranty & Exclusion of Warranties. Although its goal is to have a 100% error-free Website, to the full extent permissible by applicable law, Navien do not guarantee that content on a Website is accurate or complete, including price information and product specifications. If Navien discovers price errors or product information errors, Navien will correct it on its Website and in its systems. To the full extent permissible by applicable law, Navien reserves the right to revoke any stated offer and to correct any errors, inaccuracies or omissions.
To the full extent permissible by applicable law, Navien otherwise does not make any warranties to you regarding the products, except for the warranties which comes with the products from the manufacturer offered to its end users, if any, shall be passed through to you, and Navien must be contacted directly if a warranty claim related to the products arise. EXCEPT AS SET FORTH ABOVE, TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, NAVIEN SPECIFICALLY DISCLAIMS AND EXCLUDES ALL OTHER EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND SUITABILITY FOR ANY PURPOSE. YOU SHALL PROVIDE NAVIEN’S LIMITED WARRANTY AGREEMENT TO INSTALLERS WITH INSTRUCTIONS TO PROVIDE SUCH WARRANTY INFORMATION TO END USERS.
14. NAVIEN’s Rights. Except as provided for in the Dispute Resolution - Mandatory Arbitration and Class Action Waiver provision herein, to the full extent permissible by applicable law, Navien reserves all rights and remedies available to it in law or equity. Waiver by Navien, or inaction by Navien with respect to your breach of any provision of these General Terms & Conditions of Sale or Navien’s Terms of Use or Privacy Policy, or failure of Navien to enforce any provision of these General Terms & Conditions of Sale or Navien’s Terms of Use or Privacy Policy, will not be deemed a waiver of future compliance therewith or a course of performance modifying such provision, and such provision will remain in full force and effect as written.
15. Limitation of Liability. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED IN THESE GENERAL TERMS & CONDITIONS OF SALE, YOUR SOLE AND EXCLUSIVE REMEDY AGAINST NAVIEN FOR ANY LIABILITY WITH RESPECT TO THE PRODUCTS, WHETHER ANY CLAIM FOR RECOVERY IS BASED UPON OR ARISES OUT OF THEORIES OF CONTRACT, NEGLIGENCE, TORT OR OTHERWISE, WILL BE NAVIEN’S REPLACEMENT OF THE PRODUCTS ON THE SALES ORDER WITH THE SAME OR EQUIVALENT PRODUCTS, AT NAVIEN’S OPTION, AS LONG AS YOU HAVE COMPLIED WITH THE MANUFACTURER’S INSTALLATION INSTRUCTIONS (INCLUDING, BUT NOT LIMITED TO INSTALLATION BY A QUALIFIED INSTALLER AS STATED IN THE INSTALLATION MANUAL) AND GRANT NAVIEN A REASONABLE OPPORTUNITY TO INSPECT, REMOVE FOR TESTING AND/OR EXAMINE THE PRODUCTS IN QUESTION. IN NO EVENT WILL NAVIEN BE LIABLE FOR DAMAGES IN EXCESS OF THE PURCHASE PRICE OF THE PRODUCTS ON THE SALES ORDER OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSSES ARISING FROM THIS SALE OF THE PRODUCTS, EVEN IF NAVIEN HAS BEEN ADVISED, OR IS OTHERWISE AWARE, OF THE POSSIBILITY OF SUCH DAMAGES. YOU MIGHT HAVE ADDITIONAL RIGHTS AND WE WILL HONOR THOSE RIGHTS ACCORDING TO APPLICABLE LAW.
16. Indemnity. To the full extent permissible by applicable law, you agree to indemnify and hold harmless Navien and its parent, subsidiaries, affiliates, partners, officers, employees, contractors and subcontractors, venders, fulfillment and carrier partners, insurers, successors, agents, assignees, or trustee in bankruptcy from any and all claims, damages, losses, costs (including without limitation reasonable attorneys’ fees and costs) or other expenses that arise directly or indirectly out of or from (a) your breach of any provision of these General Terms & Conditions of Sale; (b) your activities in connection with Navien or a Website; or (c) unsolicited information you provide to Navien. In the event the products are sold by you in the same exact manner you received the products from Navien and/or manufacturer to your customers, and defect issues arise related as a result of the products that is not due to your fault, Navien will indemnify you with respect to the same.
17. Product Recalls. The Consumer Product Safety Commission (CPSC) periodically announces a recall on products (“Recall Announcement”). If we learn that a product that you have purchased is the subject of such a Recall Announcement, we may send an email to the email address you provided during your purchase with the information on the recalled product and the steps you should take if you own such a product, or we may this information on a Website. You may also visit the CPSC Website at www.cpsc.gov for additional information or call their 24 hour Toll-Free Consumer Hotline at 1-800-638-2772.
18. Governing Law/Venue. These General Terms & Conditions of Sale and the contractual relationship between Navien and you shall be governed by and construed under the laws of the State of California (without regard to California conflicts of law principles). The venue for any dispute shall be Orange County, California.
19. Dispute Resolution - Mandatory Arbitration and Class Action Waiver.
THIS SECTION REQUIRES YOU TO ARBITRATE DISPUTES BETWEEN YOU AND NAVIEN AND ANYONE ACTING ON NAVIEN’S BEHALF, AND LIMITS THE MANNER IN WHICH RELIEF CAN BE SOUGHT BY EITHER PARTY.b) Arbitration Notice. THESE GENERAL TERMS & CONDITIONS OF SALE CONTAIN A BINDING ARBITRATION CLAUSE. PLEASE READ THIS PROVISION CAREFULLY, AS IT AFFECTS YOUR LEGAL RIGHTS. IT PROVIDES THAT ANY CLAIM RELATING TO YOUR PURCHASE OF THE PRODUCTS FROM NAVIEN MAY BE RESOLVED EXCLUSIVELY THROUGH BINDING ARBITRATION. YOU ARE ENTITLED TO A FAIR HEARING, BUT THE ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN A COURT, AND ARBITRATION DECISIONS ARE SUBJECT TO VERY LIMITED REVIEW
CLAIMS MAY BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS. YOU EXPRESSLY WAIVE ANY RIGHT THAT YOU MAY HAVE TO ARBITRATE CLAIMS ON BEHALF OF ANYONE ELSE, I.E., A CLASS ACTION. IF EITHER PARTY CHOOSES TO ARBITRATE A CLAIM, NEITHER PARTY WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR TO HAVE A JURY TRIAL ON THAT CLAIM, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO SUCH CLAIM.
c) Acknowledgment of Binding Arbitration Clause. Your purchase of the products from Navien is expressly conditioned upon your acceptance of the following binding Arbitration clause. By completing your purchase of the products from Navien, you acknowledge that you are giving up the right to litigate “Claims,” defined below, if either party elects Arbitration of the Claims pursuant to this clause, except as otherwise expressly provided herein, and you hereby knowingly and voluntarily waive the right to trial of all Claims subject to this binding Arbitration clause. You further acknowledge that you have read this Arbitration provision carefully, agree to its terms, and are completing your purchase of the products from Navien voluntarily and not in reliance on any promises or representations whatsoever except those contained in these General Terms & Conditions of Sale and this binding Arbitration clause.
d) Arbitration of Claims. Except as expressly provided herein, any claim, dispute or controversy (whether based upon contract; tort, intentional or otherwise; constitution; statute; common law; or equity and whether pre-existing, present or future), including initial claims, counter-claims, cross-claims and third-party claims, arising from or relating to (i) a Website; (ii) the products purchased from Navien; (iii) any marketing of any products by Navien; (iv) these General Terms & Conditions of Sale, including the validity, enforceability, interpretation, scope, or application of these General Terms & Conditions of Sale and this binding Arbitration provision; (v) delivery of any products, and (vi) any other agreement or instrument relating to the products, Navien, or a Website (collectively, a “Claim”) shall be decided, upon the election of you or Navien (or Navien, Navien’s parent, subsidiaries, affiliates, partners, officers, employees, contractors and subcontractors, venders, fulfillment and carrier partners, insurers, successors, agents, assignees, or trustee in bankruptcy) by binding Arbitration pursuant to this Arbitration clause and the applicable rules and procedures of the Arbitration administrator in effect at the time the Claim is filed.
The American Arbitration Association (“AAA”) shall serve as the Arbitration administrator. You may obtain copies of the current rules, forms, and instructions for initiating an Arbitration with the AAA by contacting the AAA as follows: on the web at www.adr.org or by writing to AAA at 1633 Broadway, 10th Floor, New York, NY 10019.
e) Other Claims Subject to Arbitration. In addition to Claims brought by either you or Navien, any claim, dispute or controversy (whether based upon contract; tort, intentional or otherwise; constitution; statute; common law; or equity and whether pre-existing, present or future), including initial claims, counter-claims, cross-claims and third-party claims made by or against anyone acting on Navien’s behalf, including, but not limited to, Navien’s parent, subsidiaries, affiliates, partners, officers, employees, contractors and subcontractors, venders, fulfillment and carrier partners, insurers, successors, agents, assignees, or trustee in bankruptcy, shall be subject to Arbitration as described herein.
f) Exceptions. Claims that are excluded from this Arbitration provision are actions seeking injunctive relief and disputes related to Navien’s intellectual property. You and Navien further agree not to invoke the right to arbitrate any individual Claim that you bring in small claims court or an equivalent court so long as the Claim is pending only in that court and remains pending only in that court (the “Small Claims Court Exception”).
g) Individual Claims Only. It is the intent of the parties to require all Claims to be submitted to Arbitration on an individual basis only. Claims subject to this Arbitration provision may not be joined or consolidated in Arbitration with any Claim of any other person or be arbitrated on a class basis, in a representative capacity on behalf of the general public, or on behalf of any other person, unless otherwise agreed to by you and Navien in writing. Navien and its parent, subsidiaries, affiliates, partners, officers, employees, contractors and subcontractors, venders, fulfillment and carrier partners, insurers, successors, agents, assignees, or trustee in bankruptcy are considered as “one person.”
h) Arbitration Fees/Deposits. All Arbitration fees and deposits will be governed by AAA’s then applicable rules, including, but not limited to, who is responsible for payment of any fees and deposits.
i) Procedure. A single arbitrator will resolve the Claims. The arbitrator will be a lawyer with at least ten year’s experience or who is a former or retired judge. The Arbitration shall follow the rules and procedures of the Arbitration administrator in effect on the date the Arbitration is filed, except when there is a conflict or inconsistency between the rules and procedures of the Arbitration administrator and this Arbitration provision, in which case this Arbitration provision shall govern.
Any in-person Arbitration hearing for a Claim shall take place within the federal judicial district in which you live or at such other reasonably convenient location as agreed by the parties. The arbitrator shall apply applicable substantive law consistent with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”) and shall honor all claims of privilege and confidentiality recognized at law. All statutes of limitations that would otherwise be applicable shall apply to any Arbitration proceeding. The arbitrator shall only be empowered to grant relief that would be available in court under law or in equity. The arbitrator shall not be empowered to disregard the law to do equity.
At the request of any party, the arbitrator will provide a written explanation of the basis for the disposition of each claim, including written findings of fact and conclusions of law. This Arbitration provision is made pursuant to a transaction involving interstate commerce, and shall be governed by the FAA.
20. Assignment. You may not assign these General Terms & Conditions of Sale, by operation of law or otherwise, without Navien’s prior express written consent. Navien reserves the right to freely assign these General Terms & Conditions of Sale, and the rights and obligations hereunder, to any third party, including, but not limited to, a successor, without notice or consent. Subject to the foregoing, these General Terms & Conditions of Sale will be binding on, inure to the benefit of, and be enforceable against you and your respective heir(s) or successor(s).
21. Entire Agreement; Terms are Exclusive. These General Terms & Conditions of Sale, along with our Terms of Use and Privacy Policy, constitute the complete and final agreement between you and Navien regarding your purchase of the products from Navien. Any ambiguity shall not be construed or interpreted against either party. In the event of a legal proceeding/arbitration to enforce terms of this Agreement, prevailing party shall be entitled to attorney’s fees and costs.
22. Severability. If any of the provisions of these General Terms & Conditions of Sale are deemed invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions will in no way be affected or impaired thereby.
23. Contact. If you have questions about these General Terms & Conditions of Sale, please contact Navien as follows:
Navien, Inc.
20 Goodyear
Irvine, CA 92618
Tel: 1-800-519-8794
24. Difficulty Accessing Our General Terms & Conditions of Sale. Individuals with disabilities who are unable to usefully access these General Terms & Conditions of Use on a Website may contact us at the above-listed contact information to inquire how they can obtain a copy of our General Terms & Conditions of Use in another, more easily readable format.
