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THE TERMS AND CONDITIONS SET FORTH ON THIS FORM (THE ‘TERMS’), IN THE INSTRUCTIONS FOR USE AND CARE DELIVERED WITH ANY PRODUCT AND ANY WRITTEN AGREEMENT EXECUTED BY BUYER AND SLEEPING WELL, (‘‘LLC AGREEMENT”) CONSTITUTE THE ENTIRE AGREEMENT BETWEEN SLEEPING WELL, LLC D/B/A ZQuiet, BY AND ON BEHALF OF ITS SUBSIDIARIES AND AFFILIATES, (“ZQuiet”) AND BUYER (“BUYER”). ZQuiet WILL NOT BE BOUND BY ANY ADDITIONAL OR DIFFERENT TERMS ON BUYER’S ORDER OR OTHER DOCUMENTS THAT ARE INCONSISTENT WITH THESE TERMS. ACCEPTANCE BY BUYER OF THESE TERMS MAY BE MADE BY 1) WRITTEN ACCEPTANCE, 2) USE OF ZQuiet’s ONLINE OR TELEPHONE ORDERING SYSTEM OR 3) RECEIPT BY BUYER OF DELIVERY OF ANY PRODUCTS FROM ZQuiet , WHICHEVER FIRST OCCURS.
Buyer will submit orders for products and services through ZQuiet ’s online ordering system for anti-snoring devices, located on the World Wide Web at ZQuiet.com or by ZQuiet ’s telephone ordering system. These Terms apply to all orders for products and services accepted by ZQuiet. Acceptance of Buyer’s order by ZQuiet will be made only on the express understanding and condition that insofar as these Terms conflict with any terms and conditions in Buyer’s order, these Terms shall govern. No order shall be binding upon ZQuiet until ZQuiet sends Buyer confirmation of such order through electronic mail, facsimile, or other written communication.
Prices, Taxes, Payment
All prices quoted, all orders accepted, and all billings rendered are exclusive of all federal, state and local withholding, excise, sales, use and similar taxes, fees, or charges imposed by any governmental authority on this transaction. All prices presented on the site are subject to change at any time and without notice. Buyer will reimburse ZQuiet for any such tax, fee or charge, at the time of sale or thereafter, that ZQuiet is required to pay. Terms of payment are Net 30 days unless otherwise stated at time of order and on confirmation. In the event that payment is not received within the time period specified in the payment terms, any unpaid balance shall bear interest at the rate of 1.5% per month, or the maximum amount allowed by law, if lower. At its discretion ZQuiet may extend credit to Buyer, and any amount of credit extended by ZQuiet to Buyer may be changed or withdrawn completely by ZQuiet at any time without prior notice. On any order for which credit is not extended by ZQuiet, shipment or delivery shall require, at ZQuiet’s election, cash with order (in whole or in part), or C.O.D. or sight draft attached to the bill of lading or other shipping documents, and all costs of collection shall be paid by Buyer. If any proceeding is brought by or against Buyer under bankruptcy or insolvency laws, ZQuiet shall be entitled to cancel any order by Buyer then outstanding without prior notice.
RETURNS, CHANGES AND CANCELLATIONS
Cancellations of and changes to orders for products and services, and returns of products by Buyer, will be subject to ZQuiet’s then-existing return, change and cancellation fees. Upon the request of Buyer, ZQuiet will use commercially reasonable efforts to inform the Buyer of the return, change, and cancellation policies existing at the time of Buyer’s request. ZQuiet reserves the right to modify its return, change, and cancellation policies and fees at any time and without notice to Buyer. Buyer agrees to pay all charges resulting from such returns, changes and cancellations, and including, without limitation, storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, and any other cost resulting from cancellations, changes or returns.
TITLE, DELIVERY, AND ACCEPTANCE
All sales of products are made F.O.B. the shipping point. Buyer will be responsible for all shipping and insurance charges, and will reimburse ZQuiet for all shipping and insurance costs ZQuiet incurs. Title and risk of loss of or damage to the products shall pass to Buyer on the date the products are delivered to a common carrier at the shipping point (“Shipment Date”). In the event of any default by Buyer, ZQuiet may decline to make further shipments without in any way affecting its rights. ZQuiet will not be liable for delay or non-delivery of the products, resulting or arising from any cause beyond the reasonable control of ZQuiet. The products will be deemed accepted on the Shipment Date.
Until full payment has been received, ZQuiet reserves a purchase money security interest in the products sold. Buyer agrees to execute any document appropriate or necessary to perfect the security interest of ZQuiet , or in the alternative, ZQuiet may file these Terms as a financing statement and/or chattel mortgage.
USE OF PRODUCTS
The products sold by ZQuiet are not intended for human consumption. Buyer acknowledges that the products may not have been tested for safety and efficacy in commercial use. ZQuiet provides instructions with the shipment of products. Buyer shall review the instructions, and shall provide them to any third party authorized by Buyer to use products purchased hereunder by Buyer, prior to the handling and use of the products. Buyer shall ensure that use of the products is strictly in accordance with the instructions and any warnings on the labels of the products; and Buyer shall obtain assurances from such third party that the third party will at all times use the products strictly in accordance with the instructions and any warnings on the labels of the products.
Buyer shall indemnify, defend, and hold harmless ZQuiet and its employees, agents, successors, officers, managers, members and assigns, from any suits, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that ZQuiet may sustain or incur arising from (a) Buyer’s improper use of the products (including without limitation to storage, handling, and transportation of products), (b) use of the products by a third party with Buyer’s authorization, (c) use of the products by a third party without Buyer’s authorization, where such unauthorized use is due to Buyer’s negligent act or omission, or willful misconduct, (d) Buyer’s failure to comply with any applicable laws and regulations or to obtain any licenses or approvals necessary to purchase and use the products, or (e) the Buyer’s breach of any of its obligations set forth in these Terms, in the Instructions for Use and Care or in any Agreement. ZQuiet will provide Buyer with: (i) prompt written notice of such claim of which ZQuiet is aware; (ii) control over the defense and settlement of such claim; and (iii) proper and full information and assistance at Buyer’s expense to settle and/or defend any such claim. Notwithstanding the foregoing, Buyer shall not settle any such claim, suit or proceeding without the written consent of ZQuiet , which shall not be unreasonably withheld.
WARRANTIES AND DISCLAIMERS
Manufacturer’s Warranty and Disclaimers.
The availability of products or services not manufactured by us but offered through our Site does not indicate an affiliation with or endorsement of any product, service or manufacturer. Accordingly, we do not provide any warranties with respect to the products or services offered on our Site that are not manufactured by us. However, the products and services offered on our Site are covered by the manufacturer’s warranty as detailed in the product’s description on our Site and included with the product. To obtain warranty service for defective products, please follow the instructions included in the manufacturer’s warranty.
Products and Services Manufactured by Us
All products and services manufactured by us and offered through our Site are subject to a limited product warranty.THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.THIS LIMITED WARRANTY CAN ALSO BE FOUND IN THE DOCUMENTATION WE PROVIDE WITH THE PRODUCTS.
THIS LIMITED WARRANTY STARTS ON THE DATE OF YOUR PURCHASE OF THE PRODUCT AND/OR SERVICE AND LASTS FOR NINETY DAYS (“WARRANTY PERIOD”). THE WARRANTY PERIOD IS NOT EXTENDED IF WE REPAIR OR REPLACE A WARRANTED PRODUCT OR RE-PERFORM A WARRANTED SERVICE. WE MAY CHANGE THE AVAILABILITY OF THIS LIMITED WARRANTY AT OUR DISCRETION, BUT ANY CHANGE WILL NOT BE RETROACTIVE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
WE WARRANT THAT DURING THE WARRANTY PERIOD, THE PRODUCTS MANUFACTURED BY US AND PURCHASED FROM THE SITE WILL BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP.
WE LIMIT THE DURATION AND REMEDIES OF ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE DURATION OF THIS LIMITED WARRANTY.
THIS LIMITED WARRANTY DOES NOT COVER ANY DAMAGES DUE TO (I) TRANSPORTATION, (II) STORAGE, (III) IMPROPER USE, (IV) FAILURE TO FOLLOW THE PRODUCT INSTRUCTIONS OR TO PERFORM ANY PREVENTIVE MAINTENANCE, (V) MODIFICATIONS, (VI) COMBINATION OR USE WITH ANY PRODUCTS, MATERIALS, PROCESSES, SYSTEMS, OR OTHER MATTER NOT PROVIDED OR AUTHORIZED IN WRITING BY US, (VII) UNAUTHORIZED REPAIR, (VIII) NORMAL WEAR AND TEAR, OR (IX) EXTERNAL CAUSES SUCH AS ACCIDENTS, ABUSE, OR OTHER ACTIONS OR EVENTS BEYOND OUR REASONABLE CONTROL.
TO OBTAIN WARRANTY SERVICE, YOU MUST CALL [TELEPHONE NUMBER] OR EMAIL OUR CUSTOMER SERVICE DEPARTMENT AT [EMAIL ADDRESS] DURING THE WARRANTY PERIOD.
WITH RESPECT TO ANY DEFECTIVE PRODUCTS DURING THE WARRANTY PERIOD, WE WILL, IN OUR SOLE DISCRETION, EITHER (I) REPAIR OR REPLACE THE PRODUCT (OR THE DEFECTIVE PART) FREE OF CHARGE, OR (II) REFUND THE PURCHASE PRICE OF SUCH PRODUCT.
OUR RESPONSIBILITY FOR DEFECTIVE PRODUCTS IS LIMITED TO REPAIR, REPLACEMENT OR REFUND AS SET FORTH IN THIS WARRANTY STATEMENT. NEITHER ANY PERFORMANCE OR OTHER CONDUCT, NOR ANY ORAL OR WRITTEN INFORMATION, STATEMENT OR ADVICE PROVIDED BY US OR ANY OF OUR SUPPLIERS, AGENTS OR EMPLOYEES WILL CREATE A WARRANTY, OR IN ANY WAY INCREASE THE SCOPE OR DURATION OF THIS LIMITED WARRANTY.
Products and Services Not Manufactured by Us
ALL PRODUCTS AND SERVICES OFFERED ON THIS SITE, EXCEPT THOSE MANUFACTURED BY ZQuiet, ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
YOU AFFIRM THAT WE SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY BREACH OF WARRANTY CLAIMS OR FOR ANY DAMAGES ARISING OUT OF A MANUFACTURER’S FAILURE TO HONOR ITS WARRANTY OBLIGATIONS TO YOU.
IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE,
LIMITATION OF LIABILITY
ZQuiet SHALL NOT BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, NOR FOR ANY LOSS OF BUSINESS, LOSS OF USE OR OF DATA, INTERRUPTION OF BUSINESS, LOST PROFITS OR GOODWILL, OR OTHER INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF ANY AGREEMENT, EVEN IF ZQuiet HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD PARTY CLAIMS AGAINST BUYER. ZQuiet’S TOTAL LIABILITY UNDER ANY AGREEMENT WITH RESPECT TO ANY PRODUCT OR SERVICE SOLD HEREUNDER SHALL IN NO EVENT EXCEED THE PRICE PAID BY BUYER FOR SUCH PRODUCT OR SERVICE.
ZQuiet reserves the right to modify any programs, policies, information, products and services offered by ZQuiet or contained on ZQuiet’s website at any time and without notice to Buyer. These Terms and performance by the parties hereunder shall be construed in accordance with the laws of the State of Vermont, without regard to provisions on the conflicts of laws. Buyer and ZQuiet consent to the exclusive venue in, the state and federal courts of the State of Vermont. Buyer shall not assign (a) any order for products and/or services placed through ZQuiet’s website or telephone ordering system, or (b) any interest in or any rights under such order, without the prior written consent of ZQuiet . These Terms, the Instructions for Use and Care and any Agreement constitute the entire agreement between ZQuiet and Buyer and supersede all previous communications, representations and agreements, whether oral or written, between Buyer and ZQuiet with respect to the subject matter hereof. These Terms may not be modified, supplemented, qualified, or interpreted except in writing signed by Buyer and ZQuiet . The failure by ZQuiet to enforce at any time any of the provisions in these Terms will in no way be construed as a waiver of such provisions. If any provision of these Terms shall be deemed illegal or unenforceable, such illegality or unenforceability shall not affect the validity and enforceability of any other legal provisions hereof which together shall then be construed as if such illegal and unenforceable provision or provisions had not been inserted herein, unless such illegality or unenforceability shall destroy the underlying business purpose of these Terms.
Specific Provisions Regarding Use of ZQuiet’s Website
ACCESS AND USE OF INFORMATION
Access to this site is limited to viewing the linked pages solely for legitimate business purposes to access the information provided by ZQuiet at this site. Any access or attempt to access other areas of the ZQuiet computer systems or other information contained on the system for any purposes is strictly prohibited. You may not use any information contained on this site other than in connection with a legitimate business purpose.
Information About You and Your Visits to the Website
Links from the Website
If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
The owner of the Website is based in the State of Vermont in the United States. We provide this Website for use only by persons located in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
ACCURACY OF INFORMATION
The information on ZQuiet’s website is believed to be complete and reliable; however, the information may contain typographical errors, other inadvertent errors or inaccuracies. ZQuiet reserves the right to make changes to any content or information without obligation to issue any notice of such changes.
ZQuiet’s website contains many ZQuiet and third-party trademarks and service marks. All marks are the property of their respective companies. All rights in the intellectual property contained in ZQuiet’s website including copyright, trademarks, trade secret and patent rights are reserved. Access to ZQuiet’s website does not constitute a right to copy or use any of the third parties’ intellectual property of ZQuiet or its suppliers. Statutory notice contained herein represents trademark status in the United States.
All materials contained on ZQuiet’s website are subject to the ownership rights of Sleeping Well, LLC and its suppliers. ZQuiet hereby authorizes you to make a single copy of the content herein for your use in learning about, evaluating, or acquiring ZQuiet services or products. You agree that any copy made must include ZQuiet copyright notice. No other permission is granted to you to print, copy, reproduce, distribute, transmit, upload, download, store, display in public, alter, or modify the content contained herein.
All remarks, suggestions, ideas, graphics or other information communicated to ZQuiet will forever be the property of ZQuiet. Unless otherwise specified in writing, all material submitted to ZQuiet will be presumed to be public and ZQuiet will not be required to treat the information as confidential. ZQuiet shall have exclusive ownership of all present and future existing rights in the information, without compensation to the person sending the information.
QUESTIONS REGARDING TERMS AND CONDITIONS
Any questions regarding ZQuiet ‘s Terms and Conditions should be directed to ZQuiet at firstname.lastname@example.org.