2. THIS AGREEMENT INCLUDES AN AGREEMENT TO MANDATORY ARBITRATION, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO THE SITE TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT. IF YOU WANT TO OPT-OUT OF THIS MANDATORY ARBITRATION AGREEMENT, THE DISPUTE RESOLUTION/ARBITRATION PROVISION BELOW DESCRIBES THE PROCEDURES YOU MUST FOLLOW TO DO SO. THE DISPUTE RESOLUTION/ARBITRATION PROVISION ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION. THIS AGREEMENT ALSO INCLUDES A JURY WAIVER.
OWNERSHIP OF THE SITE AND CONTENT
3. All pages within this Site, and any material made available for download, unless otherwise noted, are the property of ESSENTIAL. The Site is protected by United States and international copyright and trademark laws. The content of the Site, including, without limitation, the files, documents, text, photographs, images, audio, and video, and any materials accessed through or made available for use or download through this Site (collectively, the “Content”) may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized or approved by ESSENTIAL in writing.
4. You may view, copy, print and use Content contained on this Site solely for your own personal use and provided that: (1) the Content available from this Site is used for informational and non-commercial purposes only; (2) no text, graphics or other content available from this Site is modified in any way; and (3) no graphics, images, or photographs available from this Site are used, copied or distributed separate from accompanying text or separate from any copyright, trademark or other proprietary notice. Nothing contained herein shall be construed as conferring by implication, estoppel or otherwise any license or other grant of right to use any patent, copyright, trademark or other intellectual property of ESSENTIAL or any third party, except as expressly provided herein.
CODE OF CONDUCT
5. In accessing and using this Site, you agree that you will not:
a. Engage in any fraud or misrepresentation, including, without limitation, impersonating another person or entity, providing us with the personal information of another person without permission, or adopting a false identity if the purpose of doing so is to mislead, deceive, or defraud.
b. Use the Site in any manner which could damage, disable, overburden, or impair or otherwise interfere with the use of this Site or other users’ devices, or cause damage, disruption or limit the functioning of any software, hardware, or telecommunications equipment.
c. Gain or attempt to gain unauthorized access to this Site, accounts, computer systems, or networks connected to Site, through hacking, password mining, or any other means.
d. Obtain or attempt to obtain any materials or information through any means not intentionally made available through this Site, including harvesting or otherwise collecting information about others, such as names or email addresses.
e. Attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization.
f. Interfere or attempt to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the Site, overloading, “flooding,” “spamming,” “mailbombing” or “crashing.”
g. Use or attempt to use any engine, software, tool, agent or other device or mechanism (including, without limitation, browsers, spiders, robots, avatars or intelligent agents) to navigate or search this Site other than the search engine and search agents available from ESSENTIAL on this Site and other than generally available third party web browsers (e.g., Microsoft Explorer, Apple Safari, Mozilla Firefox, or Google Chrome).
h. Violate any applicable law, rule, regulation, or ordinance.
i. Infringe or violate another person’s rights, including privacy and intellectual property rights.
j. Violations of system or network security may result in civil or criminal liability. ESSENTIAL will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.
6. You may be required to create an account to access or use certain areas of the Site, and to purchase products from the Site. If you choose to create an account, you are responsible for maintaining the confidentiality of your account (including your username and password information), and also for restricting access to such information, your account and your device(s). You agree to accept responsibility for all activities that occur under your account or password. Additionally, you agree to notify us immediately of any unauthorized access or use of your account or password, or any other breach of security. We reserve the right to terminate your account at any time.
7. Products and Pricing.
a. All products listed on the Site are subject to change, as is product information, pricing, and availability. ESSENTIAL reserves the right, at any time, to modify, suspend, or discontinue the sale of any product with or without notice.
b. Despite our efforts, the information on the Site may occasionally be inaccurate, incomplete or out-of-date. In the event a product is listed at an incorrect price or with incorrect information, we reserve the right to decline or cancel any such orders.
c. If you receive a product and it is not as described, your sole remedy is to return it in unused condition in accordance with ESSENTIAL’s return policy.
8. Payment Terms. a. For each product you order from an authorized ESSENTIAL representative, you agree to pay the price displayed on the product page or quote at the time of your order (“Product Price”), the delivery fees for the delivery service you select (“Delivery Fees”), and any applicable taxes. ESSENTIAL will automatically bill your credit card submitted as part of the order process for such amounts, and you hereby authorize us to do so. Other payment forms will be managed on a case-by-case basis.
b. Unless it is expressly stated in these terms or on the applicable product page, all payments are non-refundable.
c. ESSENTIAL reserves the right to limit or refuse the return of certain merchandise, such as special or custom orders, assembled or altered components, and personalized items. Please review the Return Policy on our Site for more details.
ACCURACY OF INFORMATION; DISCLAIMER OF WARRANTIES
9. Although ESSENTIAL attempts to ensure the integrity and accurateness of the Site, it makes no representations, warranties or guarantees whatsoever as to the correctness or accuracy of the Site and Content thereon. Information and Content contained on the Site may be changed or updated without notice. ESSENTIAL reserves the right without prior notice to discontinue any products or other items displayed on the Site without incurring any obligations.
10. YOUR USE OF, AND RELIANCE ON, ANY ADVICE OR INFORMATION OBTAINED FROM OR THROUGH THIS SITE IS AT YOUR OWN RISK. ALL CONTENT, INCLUDING PRODUCTS, SERVICES, INFORMATION, TEXT AND RELATED GRAPHICS CONTAINED WITHIN OR AVAILABLE THROUGH THIS SITE ARE PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” BASIS. ESSENTIAL MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS SITE. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ESSENTIAL DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, TITLE, OR NON-INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES. ESSENTIAL DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE WILL BE FREE OF VIRUSES AND/OR OTHER HARMFUL COMPONENTS.
11. ESSENTIAL IS NOT RESPONSIBLE FOR ANY FAILURES CAUSED BY SERVER ERRORS, MISDIRECTED OR REDIRECTED TRANSMISSIONS, FAILED INTERNET CONNECTIONS, OR ANY COMPUTER VIRUS OR OTHER TECHNICAL DEFECT, WHETHER HUMAN OR TECHNICAL IN NATURE.
LIMITATION OF LIABILITY REGARDING USE OF SITE
12. ESSENTIAL AND ANY THIRD PARTIES MENTIONED ON THIS SITE ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, ERRORS OR INACCURACIES, PROPERTY DAMAGE CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE, CONTENT OR INFORMATION CONTAINED WITHIN THE SITE, AND/OR ANY LINKED SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE, SITE-RELATED SERVICES, AND/OR LINKED SITES IS TO STOP USING THE SITE AND/OR THOSE SERVICES.
13. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER, EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, LIABILITIES AND DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, ESSENTIAL’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
MODIFICATION/TERMINATION BY ESSENTIAL
16. ESSENTIAL reserves the right, in its sole discretion, to modify, suspend, or terminate this Site and/or any portion thereof, and/or your use of this Site, or any portion thereof, at any time for any reason with or without notice to you. In the event of termination, you will still be bound by your obligations under this Agreement, including the warranties and indemnification obligations made by you, and by the disclaimers and limitations of liability. Additionally, ESSENTIAL shall not be liable to you or any third party for any termination of your access to the Site.
19. 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 access the Site 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.
20. Governing Law. The use of this website and 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. By using our website, you consent to these Terms and Conditions.
21. Assignment. You may not assign or transfer this Agreement or any or all of your rights hereunder, without the prior written consent of ESSENTIAL, and any attempt to do so is void.
23. 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.
24. 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.
25. Limited Warranty. Please see ESSENTIAL Research Limited Warranty. 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.
26. 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.
27. 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.
28. 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.
29. 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.
30. 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.
31. 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 agree to negotiate with ESSENTIAL in good faith about your problem or dispute. This should lead to resolution, but if for some reason your problem or dispute is not resolved satisfactorily within sixty (60) days after ESSENTIAL’s receipt of your written description of it, you agree to the further dispute resolution provisions below.
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 email@example.com. 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. WE BOTH AGREE THAT, WHETHER ANY CLAIM IS IN ARBITRATION OR IN COURT, YOU AND ESSENTIAL BOTH WAIVE ANY RIGHT TO A JURY TRIAL INVOLVING ANY CLAIMS OR DISPUTES BETWEEN US.
2020 Essential Device Company. 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.