1. Acceptance of Terms and Conditions of Sale. By placing an order with Essential Device Company (“ESSENTIAL”), you (“Buyer”) agree to be bound by these Terms and Condition of Sales. ESSENTIAL shall not be bound by any other terms and conditions, regardless of whether Buyer tenders terms and conditions with an order or otherwise. These Terms and Conditions of Sale supersede all prior, contemporaneous or subsequent oral or written communications, proposals and representations with communications between ESSENTIAL and Buyer unless specifically agreed to in writing by ESSENTIAL. These Terms and Conditions can only be modified by a signed written agreement by the parties. As used in these Terms and Conditions of Sale, “Product” or “Products” includes all physical ESSENTIAL Products, individually and collectively.
2. Pricing. All prices are quoted in US dollars unless otherwise expressly stated and are valid for 30 days. Buyer is solely responsible for payment of all taxes, insurance, value added taxes, and any other charge incident to Buyer’s receipt of Products.
3. Payment. All products delivered by ESSENTIAL to Buyers in the United States shall be through Complete Fulfillment, with risk of loss passing to Buyer upon ESSENTIAL’s delivery.
4. Shipping Terms. All Products delivered to Buyers in the United States shall be arranged and paid by ESSENTIAL. Buyer shall provide signature at time of delivery. For all Products delivered by ESSENTIAL outside the United States, Buyer shall be responsible for import tax and fees. Delivery times quoted are estimates only and ESSENTIAL shall not be responsible for delays in delivery.
5. Acceptance by Buyer, Cancelations & Returns.
(a) Acceptance by Buyer. Any discrepancy in shipment quantity or quality must be reported with three (3) days of Buyer’s receipt of shipment, after which time, shipments shall be deemed to be accepted by Buyer.
I. Custom Orders/Product is Noncancelable/Nonreturnable (NCNR): Custom product may not be cancelled once order has been placed. Custom product is non-returnable.
II. Buyer may cancel any stock/standard product order within 24-hours of order submission to ESSENTIAL without incurring any charges prior to shipment. Cancellations after shipment are subject to paragraph (c) below.
(c) Returns. Buyer may return any stock/standard product to ESSENTIAL provided Products are in their original packaging, undamaged, and in a resalable state. Any return shall be subject to a re-stocking fee of 25% of the sale price plus all shipping charges. All returns require a return materials authorization (RMA) number, which will be issued by ESSENTIAL to Buyer. Please see ESSENTIAL Research Limited Warranty for additional details.
6. Compliance with Laws, Rules & Regulations. Buyer shall be responsible for compliance with all laws, rules and regulations pertaining to the use of the Products. ESSENTIAL expressly disclaims compliance with any and all such laws, rules, and regulations. Buyer accepts full and complete responsibility for any such compliance.
7. Limited Warranty. Please see ESSENTIAL Research Limited Warranty
a. ESSENTIAL Research does not provide reimbursement for the replacement of the contents of any cartridges used with a ESSENTIAL Research Device or Cartridge. All 3rd party products, parts, or liquids/oils/gels are excluded from this warranty.
8. Limitation of Liability and Indemnification. In no event shall ESSENTIAL be liable for special, direct, indirect, incidental or consequential damages, including, but not limited to, lost profit or opportunity or any damage which may arise, in whole or in part, from or in connection with the use or misuse of any Product. Buyer’s sole and exclusive remedy shall in no event exceed the repair, replacement or cost paid for the specific Product purchased from ESSENTIAL. Buyer hereby indemnifies ESSENTIAL and its principals, shareholders, officers, employees, independent contractors, agents, manufacturing partners and distributers from and against any and all liabilities, damages, costs and expenses (including reasonable attorney fees, court costs and legal expenses) arising out of or related to: i) Any use of any Product by Buyer or under Buyer’s direction, control or authorization, whether such use is of the Product alone or in conjunction with other products or goods, tangible or intangible; and ii) any breach by Buyer of any warranty, representation, covenant or acknowledgement made by Buyer in these Terms and Conditions of Sale.
9. Copyright Statement. No publication or documentation regarding, accompanying or contained in any Product may be reproduced, in whole or in part, in any form or by any means, or used to make any derivative work, including, without limitation, any transaction or adaptation, without ESSENTIAL’s prior written consent.
10. Force Majeure. Except for the obligations to make payments, neither party shall be bound to meet any obligation if prevented from doing so as a consequence of force majeure.
11. Notice. All notification and communications between the parties relating to these Terms and Conditions or the subject matter hereof shall be made in writing and signed by a person duly authorized to provide such notice.
12. Entire Agreement. These Terms and Conditions of Sale shall not be modified or amended, except in writing and signed by Buyer and an authorized ESSENTIAL representative.
13. Enforceability/Severability. If any provision of these Terms and Conditions of Sale shall be held void, voidable, invalid or inoperative, no other provision hereof shall be affected as a result, and accordingly, the remaining provisions shall remain in full force and effect as though such void, voidable, invalid or inoperative provision had not been contained herein, provided, however, that if such void, voidable, invalid or inoperative provision is a material term or condition, the parties shall be compelled to supply a substitute provision, negotiated in good faith, which comes closest to their original intention.
14. Waiver. No provision of these Terms and Conditions of Sale shall be deemed to have been waived by any act or acquiescence on the part of either party, it being understood that waiver may only occur by an instrument in writing singed by an authorized officer if the party against whom such waiver is sought to be enforced. In the event of a waiver, whether in writing or by operation of law, such waiver shall not constitute a waiver of any other provision or the same provision on another occasion.
15. Rights of Third Parties. Nothing in these Terms and Conditions of Sale shall be construed so as to give any right or remedy to any third party whatsoever.
16. Governing Law. The sale of Products by ESSENTIAL and these Terms and Conditions of Sale, together with all invoice, correspondence and other documents exchanged between ESSENTIAL and Buyer, shall be governed by and construed in accordance with the laws of the State of California, USA, without regard to principles of conflicts of law or to the United Nations Convention on Contracts for the International Sale Of Goods (CISG), which is hereby specifically disclaimed by the parties with respect to all of the foregoing. Any action, suit or proceeding arising out of or related to these Terms and Conditions of Sale, the documents heretofore described and the related subject matter of the forgoing shall be brought only in a federal or state court of competent jurisdiction located in the State of California, USA and the Parties hereby unconditionally and irrevocably consent and submit to such exclusive jurisdiction and waive any objection that either of them now or hereafter with respect thereto.
17. DISPUTE RESOLUTION
ESSENTIAL is committed to working with you in the event of a dispute. If you have a problem or dispute, you must first notify ESSENTIAL and give ESSENTIAL an opportunity to resolve your problem or dispute amicably. This includes you first sending a written description of your problem or dispute using the following:
PO Box 4122 Covina, CA 91723
You and we acknowledge that the Agreement affects interstate commerce and that the Federal Arbitration Act and federal arbitration law apply to arbitrations under the Agreement (despite any other choice of law provision). Arbitration under this Agreement shall be conducted by the American Arbitration Association (the “AAA”). For claims of less than $75,000 USD, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for claims over $75,000 USD, the AAA’s Commercial Arbitration Rules will apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879 (within the USA). Upon your filing of the arbitration demand, we will pay all filing, administration and arbitrator fees for claims that total less than $75,000 USD. For claims that total more than $75,000 USD, the payment of filing, administration and arbitrator fees will be governed by the AAA Commercial Arbitration Rules. You and we agree to pay our own other fees, costs, and expenses, including those for any attorneys, experts, and witnesses. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees. In addition, for claims under $75,000 USD as to which you provided notice and negotiated in good faith with ESSENTIAL as required above before initiating arbitration, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to a recovery of reasonable attorneys’ fees and costs. Except for claims determined to be frivolous, ESSENTIAL agrees not to seek an award of attorneys’ fees in arbitration even if an award is otherwise available under applicable law. As a limited exception to the agreement to arbitrate, you and we agree that you may take claims to small claims court, if your claims qualify for hearing by such court.
YOU HAVE A RIGHT TO OPT-OUT OF THIS ARBITRATION AGREEMENT. IF YOU DO NOT AGREE TO THIS MANDATORY ARBITRATION PROVISION, THEN WITHIN THIRTY (30) DAYS FROM THE DATE OF SUCH INTERACTION, YOU MAY OPT-OUT OF THIS PART OF THE AGREEMENT BY SENDING AN EMAIL TO firstname.lastname@example.org. Any opt-out received after the thirty (30) day time period will not be valid and you must pursue your claim via arbitration pursuant to these Terms.
To the fullest extent permitted by applicable law, NO ARBITRATION OR OTHER CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SITE, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In the event that this CLASS ACTION WAIVER is deemed unenforceable, then any putative class action may only proceed in a court of competent jurisdiction and not in arbitration.
International Visitors: ESSENTIAL makes no representations or warranties that the content or materials of the Service are appropriate or lawful in any countries outside the United States, or that this Agreement complies with the laws of any other country. Those who choose to use ESSENTIAL products from locations outside the United States do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
For any questions or concerns about this policy or the Content herein, please contact us at email@example.com.
2019 ESSENTIAL Research, LLC. All rights reserved. The Products may be protected by U.S. patents, with other patents pending in the USA and elsewhere. ESSENTIAL and other marks indicated on our website and the logo forms of the foregoing marks are trademarks and/or service marks of ESSENTIAL and may be registered in the United States or in other jurisdictions including internationally.