Terms of Purchase
1.0 Purchase Terms & Conditions
BY PLACING AN ORDER FOR PRODUCTS FROM THIS WEBSITE, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS.
YOU MAY NOT ORDER OR OBTAIN PRODUCTS FROM THIS WEBSITE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH DEFCAD, INC., OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE’S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
These terms of online sale (the “Terms”) apply to the purchase and sale of products through www.defcad.com (the “Website”). These Terms are subject to change by DEFCAD, INC. (“Company, “us”, or “we”) without prior written notice at any time, in the Company’s sole discretion. The latest version of these Terms will be posted on this Website, and you should review these Terms before purchasing any product or services that are available through this Website. Your continued use of this Website after a posted change in these Terms will constitute your acceptance of and agreement to such changes.
By agreeing to these terms, you certify that you are a U.S. person as defined at 22 C.F.R. 120.15
1.1 Acceptable Use
DEFCAD is an online information library and CAD model marketplace. We are dedicated to the advancement of, and education concerning, American gunsmithing, and the protection of the Second Amendment. Users, professionals and amateurs alike, are invited to access this site in order to learn more about these topics and to contribute to the online discussion.
Users may also purchase and share small arms technical data from this site subject to these Terms and subject to any and all legal requirements imposed by local, state or federal law.
You understand and agree that CAD models sold, unless otherwise expressly stated, are not created nor materially modified by DEFCAD. As such, CAD models appearing on this site are “information provided by another information content provider” within the meaning of 47 U.S.C. § 230(c)(1).
You understand and agree DEFCAD is not responsible for the accuracy of such models. As explained further herein, DEFCAD does not warrant that such models are suitable or fit for any particular purpose. DEFCAD is not liable for the use of such models by third parties, and cannot be treated as the publisher or speaker of such models or any advertisements offering such models for sale. See, e.g., Gibson v. Craigslist, 2009 WL 1704355, *3 (S.D.N.Y. 2009) (explaining that under federal law, specifically 47 U.S.C. § 230(c)(1), “‘[n]o provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider,’ and that ‘[n]o cause of action may be brought and liability may be imposed under any State or local law that is inconsistent with this section.”)
1.2 Prohibited Use
By purchasing from DEFCAD, you represent that you understand and agree to comply with all local, state and/or federal laws governing your purchase, possession, and/or use of CAD models appearing on DEFCAD, or any physical parts created from such models. Your use of DEFCAD is subject to various United States and international laws, including but not limited to the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR). Accordingly, DEFCAD is currently only accepting orders for CAD models or any other item on DEFCAD from U.S. Persons, as defined at 15 C.F.R. 772.1 and 22 C.F.R. 120.15, and DEFCAD is not currently accepting or fulfilling orders from persons outside the United States or persons behind the Blue Wall. By using DEFCAD, you agree to comply with all domestic and international laws that apply to export-controlled technical data and software. In furtherance of these restrictions, you agree to and or represent and warrant the following:
You further represent and declare (or certify, verify, or state) that each of the following are true and correct under penalty of perjury pursuant to 28 U.S.C. § 1746:
3. Order Acceptance.
You agree that your order is an offer to buy, under these Terms, all products listed in your order. Unless the Company accepts your order, we will not be obligated to sell the products to you. We may choose not to accept any orders in our sole discretion. After having received your order, we will send you a confirmation e-mail with your order number and details of the items you have ordered. Acceptance of your order and the formation of the contract of sale between the Company and you will not take place unless and until you have received your order confirmation e-mail.
4. Returns and Refunds.
WE OFFER NO REFUNDS ON PRODUCTS PURCHASED THROUGH THE WEBSITE. The Company reserves the right, however, to review each order on a case by case basis. After such review, and only upon the express written consent of the Company, some Products may be eligible for return. If no such approval is granted, you agree you shall remain responsible for payment of all Products ordered.
5. Prices and Payment Terms.
6. Shipments; Delivery; Title and Risk of Loss.
7. DISCLAIMER OF WARRANTIES.
Products and services offered by DEFCAD are provided “AS-IS” and without any warranties, express or implied. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY & FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY
THE COMPANY’S LIABILITY TO YOU FOR CLAIMS WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY YOU FOR THE PRODUCT(S) YOU PURCHASED THROUGH THE WEBSITE AND TO WHICH SUCH CLAIMS RELATE, NOR WILL THE COMPANY, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR ANY LOSS
OF PRODUCTION, WORK, DATA, USE, BUSINESS, GOODWILL, REPUTATION, REVENUE OR PROFIT, ANY DIMINUTION IN VALUE, COSTS OF REPLACEMENT GOODS, OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT.
9. Goods Not for Resale or Export.
You agree to comply with all applicable laws and regulations of the various states and of the United States including all Export Regulations, as defined below. You represent and warrant that you are buying products from the Website for your own personal or household use only, and not for resale or export.
Products purchased from the Website may be controlled for export purposes by export regulations, including but not limited to, the Export Administration Act of 1979 (50 U.S.C. 2401-2410), the Export Administration Regulations promulgated thereunder (15 C.F.R. 768-799), the International Traffic in Arms Regulations (22 C.F.R. 120-128 and 130) and their successor and supplemental regulations (collectively, “Export Regulations”).
10. Intellectual Property Use and Ownership.
You acknowledge and agree that:
12. Force Majeure
We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
13. Governing Law and Jurisdiction.
All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Arkansas without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Arkansas.
14. Dispute Resolution and Binding Arbitration.
You and DEFCAD agree to arbitrate any and all disputes and claims that arise out of or relate in any way to: A.) your use of DEFCAD and/or B.) the construction, application, or interpretation of these Terms of Service. This agreement to arbitrate is intended to be broadly interpreted and includes claims brought under any legal theory.
This provision does not preclude any party from seeking an individualized preliminary injunction or temporary restraining order until a claim is arbitrated, or from bringing an individualized action in small claims court, provided that the arbitrator will have exclusive jurisdiction to finally resolve claims not within the jurisdiction of a small claims court. Nothing in this section shall bar any party from bringing issues to the attention of federal, state, or local agencies.
You understand and agree that by entering into this agreement, all parties are waiving their respective rights to a trial by jury or to participate in a class or representative action. The Federal Arbitration Act governs the interpretation and enforcement of this Dispute Resolution Agreement.
With respect to all disputes or claims that arise out of or relate in any way to your use of DEFCAD or the construction, application, or interpretation of these Terms, this provision supersedes any contrary terms regarding dispute resolution in any other agreement between the parties.
If any party intends to seek arbitration of a dispute, that party must provide the other party with notice in writing (“Notice of Dispute”). This Notice of Dispute must be sent to the following address:
DEFCAD, Inc. c/o
1 Riverfront Place Suite 415
North Little Rock, AR 72214
The Notice of Dispute must include a description of the facts giving rise to the dispute and a statement of the relief requested. If the parties are unable or unwilling to resolve the dispute within 60 days after the Notice of Dispute is submitted, the dispute will be resolved by arbitration upon one party sending the other party or parties and the American Arbitration Association (“AAA”) a demand for arbitration. No arbitration demand may be submitted until at least 60 days after submission of the Notice of Dispute.
The arbitration will be governed by the AAA’s Commercial Arbitration Rules ("AAA Rules"), and will be administered by the AAA. Unless the parties agree otherwise, the Expedited Procedures of the AAA Rules will apply to any claim of $75,000 or less. The AAA Rules are available online at adr.org or by calling the AAA at 1-800-778-7879. If the AAA is unavailable, the parties will agree to another arbitration provider or the court will appoint a substitute. To the fullest extent permitted by applicable law, any evidentiary submissions made in arbitration will be maintained as confidential in the absence of good cause for its disclosure. The arbitrator’s award will be maintained as confidential only to the extent necessary to protect either party’s trade secrets or proprietary business information or to comply with a legal requirement mandating confidentiality.
Arbitration hearings will take place in Pulaski County, Arkansas, or such other location as the parties mutually agree.
The AAA’s fee schedule is subject to change and may be found in the AAA Rules (available online at adr.org or by calling the AAA at 1-800-778-7879). Filing fees shall be paid by the party who initially commenced the arbitration subject to later reallocation governed by the AAA Rules.
15. No Waivers.
The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of the Company.
You agree to indemnify and hold DEFCAD harmless from any claim, cause of action, demand or damages related to or arising out of: (a) content that you post or transmit via DEFCAD (including but not limited to CAD models, physical parts created therefrom, and any content that a third-party deems defamatory or otherwise harmful or offensive); (b) activity that occurs through or by use of your account (including, without limitation, all content posted or transmitted and your interactions with others); (c) your use of or reliance on any user content; and (d) your violation of these Terms. This indemnification obligation includes payment of any attorneys' fees and costs incurred by DEFCAD. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you agree to cooperate with our defense of such claims.
18. No Third Party Beneficiaries
These terms constitute a legal agreement between you and DEFCAD. These terms are not intended to be, and shall not be, enforceable by any third party/parties.
If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
20. Entire Agreement
These Terms constitute the entire agreement between you and DEFCAD. These Terms supersede any prior written or oral agreement. If any provision of these Terms is found by a court of competent jurisdiction to be unenforceable, all other provisions remain in full force and effect.
Purchase Terms 1.0 Last Updated: February 25, 2020