TERMS AND CONDITIONS OF SALE
1. TERMS AND CONDITIONS. These Terms And Conditions Of Sale (these “Terms”) herein apply to all orders by customer (“Customer”) and all products (“Products”) to be provided by Life Startup Essentials LLC, an Arizona limited liability company (“Life Startup”) to Customer. As used herein, “Product Purchase Agreement” means, collectively, these Terms and all Life Startup customer order acknowledgments (each an “Order Acknowledgment”) accepted by Customer.
Customer acknowledges and agrees that the Product Purchase Agreement shall supersede any additional, inconsistent, or different terms and conditions contained in any order, purchase order, order acknowledgement, agreement or correspondence created or sent by or on behalf of Customer (collectively, “Customer Documentation”), even though such additional, inconsistent, or different terms and conditions are issued subsequent to the date of these Terms or any Order Acknowledgment. Life Startup expressly limits acceptance of each Order Acknowledgement to the terms and conditions contained herein, and any additional, inconsistent, or different terms and conditions contained in any Customer Documentation are expressly rejected. Trade usage and course of dealing or performance shall not be employed to vary, explain or supplement the terms of the Product Purchase Agreement.
2. ACCEPTANCE AND CANCELLATION. Life Startup has no obligation to accept any order, in whole or in part, from Customer. An order will only be deemed to have been accepted by Life Startup when Life Startup receives from Customer an express acceptance of such Order Acknowledgment for such order. Upon Life Startup’s receipt of Customer’s express acceptance of such Order Acknowledgment, such order is a binding contract subject to these Terms and those set forth in such Order Acknowledgment, and may not be cancelled without Life Startup’s written consent (which may be withheld in Life Startup’s sole and absolute discretion).
3. CHANGES. All orders must be approved and accepted by Life Startup pursuant to an Order Acknowledgment. All requests for changes to any order must be made to Life Startup in writing. Life Startup may accept or reject such proposed changes in Life Startup’s sole and absolute discretion. Any changes to a given order will only be made pursuant to an amended or supplemented Order Acknowledgment issued by Life Startup and signed by Customer.
4. PAYMENT TERMS. For each order, Customer agrees to pay the full amount shown in the Order Acknowledgment (including applicable sales tax, shipping and handling, and other charges) pursuant to the payment terms set forth in such Order Acknowledgment. Tax-exempt Customers must furnish a certificate of exemption or pay sales tax. In the event Customer fails to make payment when due, Life Startup may suspend or cancel any further shipments, and Customer will reimburse Life Startup for any fees, costs or expenses Life Startup incurs in attempting to collect such amounts due from Customer, whether by lawsuit or otherwise (including, without limitation, attorneys’ fees and collection fees). In the event that payment for a shipment is not timely made, Life Startup, may, in addition to all other available remedies at law and at equity, take possession of such shipment, in whole or in part, at any time, including entering onto Customer’s premises or the premises of a third party where such shipment is stored or located. Life Startup may also assess a 1.5% monthly interest charge (or the maximum charge allowed by applicable law) on the entire unpaid balance of the account for any monthly period during which any payment is more than 30 days late. If, in the sole judgment of Life Startup, the financial condition of Customer at any time does not justify continuance of shipment, Life Startup may require full or partial payment in advance at any time.
5. SHIPPING. All Products will be delivered as indicated on the Order Acknowledgment for a given order. Customer will be responsible for unloading the Products from Life Startup’s carrier at the terminal/port set forth on the Order Acknowledgment for such order. Once Life Startup’s carrier makes the Products available to Customer at the designated terminal/port set forth in the Order Acknowledgment, risk of damage to/loss off and title to such Products will pass to Customer. Customer will bear all risk of damage to/loss off the Products while unloading of the Products from Life Startup’s carrier and at all times thereafter. Unless otherwise noted on the Order Acknowledgment for a given order, delivery will be via transportation as Life Startup deems appropriate in Life Startup’s sole and absolute discretion. Life Startup is not responsible for delays caused by carriers.
6. DELIVERY, INSPECTION AND ACCEPTANCE. Customer must be present at time of delivery to inspect, sign for, and acknowledge the quantity and condition, of the Products. If, within five (5) day after the date of delivery, Customer believes that any of the Products do not confirm to the warranties (if any) set forth in the applicable Order Acknowledgment, then Customer must provide Life Startup with a notice containing (a) a detailed description of all such alleged defects and (b) color photographs of all such alleged defects. All Products for which Customer does not provide a notice within such five (5) day period will be conclusively presumed to be accepted by Customer and will then be subject only to the applicable manufacturer’s warranty (if any) as set forth in the related Order Acknowledgment. Upon receipt of any Customer notice alleging product defects, Life Startup will determine, in its sole and absolute discretion, whether to have Customer dispose of, or return to Life Startup, any such allegedly defective products.
7. SCHEDULING AND DELAYS. Shipping and delivery dates set forth in the Order Acknowledgment are only estimates. Life Startup will endeavor to meet estimated delivery dates, but Life Startup will not be liable to Customer or any third party for any delay in delivery of Products. Without limiting the generality of the foregoing, Life Startup will be excused from performance and will not be liable for any delay in delivery or non-delivery attributable in whole or in part to (a) any Event of Force Majeure (as defined below); or (b) Customer’s fault or negligence.
8. LIMITED WARRANTIES; LIMITATIONS OF LIABILITY; REMEDY.
(a) LIFE STARTUP PROVIDES ONLY THE PRODUCT WARRANTIES WHICH ARE EXPRESSLY SET FORTH IN, AND ATTACHED TO, THE APPLICABLE ORDER ACKNOWLEDGMENT(S). SUCH PRODUCT WARRANTIES RUN SOLELY TO CUSTOMER AND WILL NOT BE ENFORCEABLE BY ANY THIRD PARTY.
(b) EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN SECTION 8(a) ABOVE, LIFE STARTUP MAKES NO WARRANTY, REPRESENTATION, GUARANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF THE TRADE, WARRANTIES OF NON-INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THE PRODUCT PURCHASE AGREEMENT AND ANY PRODUCTS PROVIDED TO CUSTOMER.
(c) UNDER NO CIRCUMSTANCES WILL LIFE STARTUP BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLE DAMAGES ARISING OUT OF OR RELATED TO (i) THE PRODUCT PURCHASE AGREEMENT, AND (ii) THE PRODUCTS (INCLUDING, WITHOUT LIMITATION, THE DESIGN, MANUFACTURE, LABELING, PACKAGING, SALE, SHIPPING, DELIVERY, HANDLING, STORAGE, INSTALLATION, USE AND PERFORMANCE OF THE PRODUCTS), REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH CLAIM IS BASED (WHETHER BASED IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY), EVEN IF LIFE STARTUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WHICH INCLUDE, BUT ARE NOT LIMITED TO, DAMAGES RELATED TO DELAYS, PERSONAL INJURY OR DEATH, DAMAGE TO OR LOSS OF PROPERTY, LOST PROFITS, LOST PRODUCTION, LOST EFFICIENCY, LOST USE OF FACILITY OR EQUIPMENT, AND THE CLAIMS OF THIRD PARTIES).
(d) LIFE STARTUP IS NOT PROVIDING ANY SERVICES TO CUSTOMER, AND WILL HAVE NO LIABILITY OF ANY KIND TO CUSTOMER WITH RESPECT TO THE INSTALLATION, LABELING, PACKINGING, USE, STORAGE, HANDLING, OR MAINTENANCE OF THE PRODUCTS.
(e) WITHOUT LIMITING THE FOREGOING, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND LIFE STARTUP’S SOLE AND EXCLUSIVE LIABILITY, WITH RESPECT TO PRODUCT PURCHASE AGREEMENT AND THE PRODUCTS WILL BE THOSE REMEDIES SET FORTH IN THE EXPRESS WARRANTIES PROVIDED IN SECTION 8(a) ABOVE, AND LIFE STARTUP WILL HAVE NO FURTHER LIABILITY TO CUSTOMER OF ANY KIND.
(f) CUSTOMER ACCEPTS THE RESTRICTIONS ON CUSTOMER’S RIGHT TO RECOVER ADDITIONAL DAMAGES AS PART OF ITS BARGAIN WITH LIFE STARTUP, AND CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT, WITHOUT SUCH RESTRICTIONS, THE PRODUCT PRICES WOULD BE HIGHER.
(g) IF ANY JURISDICTION DOES NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY SET FORTH ABOVE, LIFE STARTUP’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW AND, IN ANY CASE, LIFE STARTUP’S LIABILITY WITH RESPECT TO THE PRODUCT PURCHASE AGREEMENT AND THE PRODUCTS WILL NOT EXCEED AN AMOUNT EQUAL TO THE PURCHASE PRICE ACTUALLY PAID BY CUSTOMER TO LIFE STARTUP FOR THE PRODUCTS SUBJECT TO THE CUSTOMER’S CLAIM (WHICH AMOUNT WILL EXCLUDE ALL TAXES, SHIPPING AND HANDLING CHARGES, AND OTHER THIRD PARTY FEES AND COSTS ADVANCED, COLLECTED, INCURRED AND/OR PAID BY LIFE STARTUP).
9. INDEMNIFICATION. Customer will defend, indemnify and hold harmless Life Startup and its affiliates, officers, directors, members, managers, equity holders, employees, insurers, legal counsel, representatives, and agents (each an “Indemnitee”) from and against any and all claims (including, without limitation, any investigation, action or other proceeding, whether instituted by a third party against an Indemnitee or by an Indemnitee for the purpose of enforcing its rights), damages, losses, liabilities, costs and expenses (including, without limitation, attorneys’ fees and court costs) that constitute, or arise out of or in connection with (a) any breach by Customer of Customer’s representations, warranties, agreements and covenants set forth in the Product Purchase Agreement; or (b) Customer’s purchase, installation, use, storage, handling, or maintenance of the Products; or (c) use of the Products by Customer’s customers, renters or lessees.
(a) Counterparts; Facsimile. The Product Purchase Agreement may be executed simultaneously in one or more counterparts, but all such counterparts taken together will constitute one and the same agreement. The exchange of copies and of signature pages by facsimile transmission or .pdf delivered via email will constitute effective execution and delivery of the Product Purchase Agreement and may be used in lieu of the original Agreement for all purposes.
(b) Entire Agreement. The Product Purchase Agreement constitutes the entire agreement of Life Startup and Customer, and supersedes all prior and contemporaneous written and oral agreements, representations and communications between Life Startup and Customer relating to such transactions.
(c) Amendment. The Product Purchase Agreement may be amended, supplemented, or otherwise modified only upon the written consent of Life Startup. Life Startup may amend these Terms from time to time in Life Startup’s sole and absolute discretion; provided, that (i) an amendment (unless agreed to in writing by Customer) will not apply to Products for which an Order Acknowledgment has been accepted by Customer, and (ii) an amendments will apply to all Products ordered by Customer for which an Order Acknowledgment is not accepted by Customer prior to the date of such amendment.
(d) Expenses. Except as may otherwise be specifically provided in the Product Purchase Agreement, each of Life Startup and Customer is responsible for expenses incurred in connection with the negotiation, preparation, execution, delivery, and performance of the Product Purchase Agreement.
(e) Force Majeure. Except as otherwise expressly provided in the Product Purchase Agreement, Life Startup will not be liable to Customer for any delay in or failure of its performance under the Product Purchase Agreement resulting from any act of God; fire, flood, explosion or other natural disaster; actions or impositions by federal, state or local authorities; strike; labor difficulties or disputes; vandalism, riot, commotion, act of public enemies, war, terrorism, blockage or embargo; pandemics, failure of or delay in delivery by Life Startup’s suppliers or carriers; commercial impracticability (irrespective of conjectural foreseeability at time of contracting); shortages of energy, raw materials, labor, or equipment; inadequate yield of Product despite Life Startup’s reasonable efforts; or any other cause beyond the reasonable control of Life Startup (“Event of Force Majeure”).
(f) Governing Law; Consent to Jurisdiction. The Product Purchase Agreement is governed by, and will be construed and enforced in accordance with, the laws of the State of Arizona, without giving effect to any conflict of laws rules, and Life Startup and Customer irrevocably submit to the exclusive jurisdiction of the federal and state courts located in Phoenix, Arizona for the purposes of any action or proceeding arising out of or relating to the Product Purchase Agreement. Life Startup and Customer hereby waive any objection based on forum non conveniens and waive any objection to venue of any action instituted under the Product Purchase Agreement. If any legal action or any arbitration or other proceeding is brought in connection with the Product Purchase Agreement, the prevailing party will be entitled to recover reasonable attorneys’ fees, accounting fees, and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled. The phrase “prevailing party” means the party who is determined in the proceeding to have prevailed or who prevails by dismissal, default, judgment, or otherwise. LIFE STARTUP AND CUSTOMER ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THE PRODUCT PURCHASE AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE PRODUCT PURCHASE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.
(g) No Third Party Beneficiaries. Except as set forth under Section 9 above with respect to the Indemnitees, there are no third party beneficiaries to the Product Purchase Agreement. No third party will have any rights under the Product Purchase Agreement, and Life Startup will not have any obligation or liability to any third party with respect to the Product Purchase Agreement.
(h) Notices. Any notice, demand, or communication required or permitted to be given by any provision of the Product Purchase Agreement will be deemed to have been sufficiently given or served for all purposes if (i) delivered personally to an authorized representative of Life Startup or Customer, (ii) sent by facsimile or electronic mail transmission, or (iii) sent by registered or certified mail, postage prepaid. Except as otherwise provided herein, any such notice will be deemed to be given (i) on the date on which the same was personally delivered, (ii) on the date on which the notice was transmitted by facsimile or electronic mail transmission if confirmation thereof is obtained, or (iii) if sent by registered or certified mail, on the third (3rd) day after such notice was deposited in the United States mail addressed as aforesaid.
(i) Severability. Any provision of the Product Purchase Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions thereof or affecting the validity or enforceability of such provision in any other jurisdiction.
(j) Successors and Assigns. Customer may not assign its rights or delegate or cause to be assumed its obligations under the Product Purchase Agreement without the prior written consent of Life Startup (which consent may be given or withheld in Life Startup’s sole and absolute discretion). Life Startup may assign its rights or delegate or cause to be assumed its obligations under the Product Purchase Agreement in Life Startup’s sole and absolute discretion. Any attempted assignment, delegation or assumption not in accordance with this Section 10(j) will be null and void and of no force or effect whatsoever. The terms and conditions of the Product Purchase Agreement will inure to the benefit of and be binding upon the respective successors and permitted assigns of Life Startup and Customer.
(k) Survival. The provisions of Product Purchase Agreement will survive the delivery of Products to Customer pursuant to a given Order Acknowledgment and the acceptance of such Products by Customer; provided, that the Product warranties described in Section 8(a) above will survive and expire pursuant to their respective terms.
(l) Waivers. The due performance or observance by Life Startup and Customer of their respective obligations under the Product Purchase Agreement will not be waived, and the rights and remedies of such parties will not be affected, by any course of dealing or performance or by any delay or failure of either such party in exercising any such right or remedy. The due performance or observance by Life Startup or Customer of any of its obligations under the Product Purchase Agreement may be waived only by a writing signed by the other party.
*If customer is ordering a custom product/kit and shipping via UPS, the Shipping & Handling cost will be calculated at the time of shipment and invoiced to customer upon receipt of the products.