Terms and Conditions
PLEASE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS OF SALE.
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TERMS AND CONDITIONS OF SALE
This is a legal agreement between you and TherRex Innovations LLC (“Company”) stating the terms that govern your purchase of the TherRexTM board (the “Product”). BY PURCHASING A PRODUCT FROM THE COMPANY, YOU ARE CONSENTING TO BE BOUND BY THESE TERMS. IF YOU DO NOT UNDERSTAND AND AGREE TO ALL OF THE TERMS IN THIS AGREEMENT, DO NOT PURCHASE THE PRODUCT. No terms, conditions, or warranties other than those identified herein shall be binding on the Company unless specifically made in writing and signed by an authorized representative of the Company.
SHIPMENT; TITLE; RISK OF LOSS. Company will ship the Products within a reasonable time after receiving Customer’s order, subject to availability. The delivery date provided by Company is only an estimate and is based upon prompt receipt of Customer’s shipping information and Customer’s selection of shipping option. Company will not be liable for any delays, loss, or damage in transit, and failure to deliver within the time estimated will not be a material breach on the Company’s part. Title to and risk of loss of the Product purchased shall pass to Customer upon delivery to a common carrier for shipment to the Customer. Customer shall inspect all shipments upon arrival and shall notify Company in writing of any shortages or other failures to conform to this Agreement which are reasonably discoverable upon arrival.
PAYMENT TERMS: Unless otherwise agreed, payments for all Products not paid for in full at the time of order shall be due and payable in full thirty (30) days after shipment. Company reserves the right to charge interest at the rate of 1% per month, or any part of a month, during which any amount due remains unpaid.
LIMITED WARRANTY AND WARRANTY CLAIMS. Company warrants the grip tape on top of the Product to be free from defects in material and workmanship for sixty (60) days following the date of delivery of the Product, and the remainder of the Product to be free from defects in material and workmanship for lifetime following the date of delivery. Company does not warrant the Products against normal wear and tear. THIS LIMITED WARRANTY IS EXPRESSLY CONDITIONED UPON (A) CUSTOMER’S PAYMENT IN FULL OF THE PURCHASE PRICE FOR THE PRODUCTS, (B) CUSTOMER GIVING WRITTEN NOTICE OF THE DEFECT, REASONABLE DESCRIBED, TO COMPANY WITHIN THIRTY (30) DAYS OF CUSTOMER’S RECEIPT OF THE PRODUCTS, (C) THE STORAGE, HANDLING, AND USE OF THE PRODUCTS IN COMPLIANCE WITH ALL INSTRUCTIONS, (D) CUSTOMER PROVIDING COMPANY WITH A REASONABLE OPPORTUNITY TO EXAMINE THE PRODUCTS (COMPANY MAY REQUEST RETURN OF DAMAGED PRODUCTS FOR INSPECTION, AND RESERVES THE RIGHT TO REFUSE DAMAGE CLAIMS UPON INSPECTION), AND (E) THE ABSENCE OF ANY UNAUTHORIZED MODIFICATION OR REPAIR OF THE PRODUCTS, INCLUDING WITHOUT LIMITATION THE REMOVAL OR ALTERATION OF ANY WARNING SIGNS OR LABELS. In no event shall Company be liable for any warranty claim arising from vandalism, usage that the Product was not originally intended for, failure to follow proper warning labels or instructions, or other misuse, neglect or improper maintenance. Customer must give written notice of a warranty claim hereunder within said 30-day period or Customer will be deemed to have unconditionally accepted said Product. Products returned to Company without Company’s consent will be held at the risk and expense of Customer. NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, THE WARRANTY CONTAINED IN THIS SECTION AND THE EXPRESS WARRANTY OF GOOD TITLE ARE THE ONLY WARRANTIES EXTENDED BY COMPANY IN CONNECTION WITH THE PRODUCTS AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY. COMPANY’S OBLIGATIONS UPON BREACH OF WARRANTY OR OTHER PROVISION HEREOF OR AS IMPOSED BY LAW SHALL BE LIMITED TO THE REPAIR OR REPLACEMENT OF DEFECTIVE PRODUCTS AND IN NO EVENT SHALL COMPANY HAVE ANY LIABILITY WHATSOEVER FOR PAYMENT OF ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR TORT DAMAGES OF ANY KIND, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. IN THE EVENT OF A BREACH OF THE WARRANTY OR OTHER PROVISIONS HEREOF BY COMPANY, COMPANY SHALL HAVE THE OPTION TO REPLACE DEFECTIVE PRODUCTS OR REFUND THE PRODUCT CHARGE PAID THEREFOR AND NO ALLOWANCE SHALL BE MADE FOR ANY EXPENSES INCURRED BY CUSTOMER IN REPAIRING OR REPLACING THE PRODUCTS. COMPANY’S TOTAL LIABILITY HEREUNDER SHALL NOT EXCEED THE PRODUCT CHARGE FOR THE PRODUCTS. ANY CONTROVERSY OR CLAIM ARISING OUT OF, OR RELATED TO, THIS AGREEMENT, OR THE BREACH THEREOF, MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUED.
CHANGES. Company reserves the right to alter, modify, or redesign the Products without any obligation to notify Customer or replace previous shipments to Customer.
SAFE OPERATION INDEMNITY. Customer will, and will require its employees or customers to comply with all directions set forth in any manuals or instructions for the safe operation and use of the Products and shall use, and require its employees or customers to use, reasonable care and all necessary safety precautions in the operation, use and maintenance of the Products. Company shall not be liable to Customer or any third parties for, and Customer expressly agrees to indemnify, defend and hold Company harmless against, all claims, losses, liabilities, damages, penalties, costs and expenses (including reasonable attorneys’ fees and costs of litigation), whether for personal injury, death, damage to property or the environment or otherwise, arising from, connected with or related to any failure of any person to follow any provisions of any manuals and/or instructions for the safe operation, use and/or maintenance of the Products. Customer shall not remove or permit anyone to remove any safety labels or warning signs. If Customer fails to strictly observe each and every obligation set forth above, Customer shall indemnify and hold Company harmless against any and all claims, losses, liabilities, damages, penalties, costs and expenses (including reasonable attorneys’ fees and costs of litigation), whether for personal injury, death, damage to property or the environment or otherwise, arising from, connected with or related to the Products sold hereby.
FORCE MAJEURE. Company shall not be responsible or liable for any loss or damage incurred by Customer herein resulting from causes beyond the reasonable control of Company, including without limitation acts of God, war, invasion, insurrection, riot, the order of any civil or military authority, fire, flood, weather, acts of the elements, delays in transportation, unavailability of equipment or materials, breakdown, sabotage, lock-outs, strikes or labor disputes, faulty castings or forgings, or the failure of Company’s suppliers to meet their delivery promises.
APPLICABLE LAW; DISPUTE RESOLUTION. This Agreement and performance hereunder shall be governed and construed in accordance with the laws of the State of Illinois, without regard to its choice of law provisions. In the event any dispute arising out of or relating to any terms of this Agreement or the breach, termination or validity hereof cannot be resolved within thirty (30) days from notice from one party to the other party, said dispute shall be settled by mediation and, if necessary, legally binding arbitration conducted by a conciliation or alternative dispute resolution service appointed by the parties or if, within ten (10) days after the expiration of said thirty (30) day period, the parties have not agreed on such appointment, as appointed by Company’s counsel. Judgment upon an arbitration decision may be entered in any court otherwise having jurisdiction. The parties understand and agree that these methods shall be the sole and exclusive remedy for any such dispute and expressly waive their right to file a lawsuit in any civil court or proceeding in any administrative body against one another for such disputes, except to enforce an arbitration decision. Any costs of the mediator/arbitrator incurred hereunder shall be paid equally by the parties.
NO STRICT CONSTRUCTION. The parties hereto acknowledge and agree that this Agreement has been freely negotiated by them and the language used herein shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied for or against any party hereto. The parties hereto understand, agree and acknowledge that, in any controversy, dispute or contest over the meaning, interpretation, validity or enforceability of this Agreement, there shall be no inference, presumption or conclusion drawn whatsoever for or against any party hereto by virtue of that party or its agent having prepared this Agreement or any portion hereof.
ENTIRE AGREEMENT. As of the purchase date, this document revokes and supersedes all prior agreements concerning the purchase and sale of the Products and constitutes the full understanding between the parties hereto with reference to the subject matter hereof, and no statements or agreements, oral or written, made prior to or at the signing hereof shall vary or modify the written terms hereof; and neither party shall claim any amendment, modification or release from any provision hereof by mutual agreement, acknowledgement or acceptance of invoices, or otherwise, unless such agreement is in writing and signed by the other party and specifically states that it is an amendment to this Agreement.