Terms & Conditions
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 www.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discretion ZQuiet® may extend credit to Buyer, and any amount of credit extended by ZQuiet® to Buyer may be changed or withdrawn completely by ZQuiet® at any time without prior notice.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
All information appearing in ZQuiet®’s documentation or on ZQuiet®’s website is provided “AS IS” and without warranties of any kind with respect to its correctness, accuracy, reliability or otherwise. ZQuiet® provides no warranty with respect to the contents of its documents or website or with respect to the products and/or services sold hereunder, except those products directly manufactured by ZQuiet® and services directly provided by ZQuiet®. For products not directly manufactured by ZQuiet® and services not directly provided by ZQuiet®, Buyer receives a warranty on such products or services, if any, directly from the manufacturer of those products or provider of those services to the extent such “pass-through” warranties are available. Upon the request of the Buyer, ZQuiet® will use commercially reasonable efforts to inform the Buyer of the warranty policy of a particular manufacturer or service provider, or to direct Buyer to a source of such information. ZQUIET® MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ZQUIET®’S WEBSITE OR THE PRODUCTS AND SERVICES SOLD HEREUNDER. ZQUIET® EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. ZQUIET® DOES NOT WARRANT THAT OPERATION OF ZQUIET® ONLINE WILL BE UNINTERRUPTED OR FREE FROM ERRORS, THAT DEFECTS WILL BE CORRECTED OR THAT ZQUIET®’S WEBSITE OR ITS SERVER ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
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.
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.