INSPIRSTAR INC. STANDARD TERMS AND CONDITIONS OF SALE
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ORDER ACKNOWLEDGMENT
THESE TERMS AND CONDITIONS APPLY TO ALL USA SALES BY INSPIRSTAR, INC. (“INSPIRSTAR”) OF THE MICROCURRENT STIMULATION DEVICES, AND ALL ACCESSORIES AND SERVICES RELATED THERETO (“PRODUCT”). IT IS INTENDED THAT THESE TERMS AND CONDITIONS FORM A BINDING CONTRACT. READ THIS DOCUMENT CAREFULLY. IT CONTAINS IMPORTANT INFORMATION INCLUDING A LIMITATION OF WARRANTY, AND AN ARBITRATION PROVISION. BY ACCEPTING DELIVERY OF THE PRODUCT, THE CUSTOMER IS BOUND BY THESE TERMS AND CONDITIONS.
NOTE: THE PRODUCT IS A CLASS II MEDICAL DEVICE. IT MUST ONLY BE USED IN ACCORDANCE WITH THE DIRECTIONS OF AND UNDER THE SUPERVISION OF A LICENSED MEDICAL PRACTITIONER.
PAYMENT TERMS: Payment must accompany the Customer’s order, or the order will be shipped COD. All credit sales must be approved in writing in advance, and then, the invoice is due and payable 30 days, by credit card, check, cash or wire transfer upon delivery of the Product. Interest will be charged on all overdue accounts at the rate of one and one half percent (1½%) per month or at the highest rate allowed by applicable law. Returned or dishonored checks shall be charged a processing fee of $50 per check. In the event that Customer fails to pay any invoice when due, INSPIRSTAR reserves the right in its sole and exclusive discretion, to refuse to ship any future order to Customer.
SHIPPING AND TAXES: All shipping is FOB INSPIRSTAR’s facility. Shipping and handling are additional unless otherwise expressly indicated at the time of sale. Shipping and handling will be shown on the invoice(s) or other documentation. Loss or damage that occurs during shipping by a carrier selected by Inspirstar is Inspirstar’s responsibility. Loss or damage that occurs during shipping by a carrier selected by Customer is Customer’s responsibility. Customers are responsible for all shipping and sales taxes.
CUSTOMER’S ACCEPTANCE OF PRODUCT: All Product shipped to Customer shall be deemed accepted by Customer unless INSPIRSTAR is notified in writing of the Customer’s refusal and the reasons therefore within 3 days of receipt. No Product may be returned without prior written authorization of INSPIRSTAR, and then shall be subject to 25% restocking fee. The Product is made for use in the United States of America only and the Customer agrees not to resell or ship the Product out of the United States to any entity or person whatsoever.
LIMITATIONS: Customer agrees that all actions, claims, and disputes arising under this Agreement, shall be brought, if at all, within three (3) months of the date the Product is received.
ACCEPTANCE OF CUSTOMER’S Purchase Order: Customer agrees that its Purchase Order is accepted with this Order Acknowledgment or order shipment, and that such Purchase Order is subject to all the terms and conditions contained herein. To the extent that the Customer’s Purchase Order contains terms and conditions which are contrary to, or inconsistent with the terms and conditions contained herein, these terms and conditions shall control.
CANCELLATION: Customer agrees that once Customer’s Purchase Order is accepted by INSPIRSTAR, Customer cannot cancel its Purchase Order without the INSPIRSTAR’s written consent. INSPIRSTAR may accept or reject the Customer’s Purchase Order in its sole discretion.
LIMITED WARRANTIES: INSPIRSTAR warrants that the Product is manufactured in accordance with the specifications contained in the Purchase Order. The Product may be replaced with the same or a substitute product within a limited period of time which is provided in the document with the Product. There is no warranty of merchantability nor of fitness for a particular use. The Product is marketed under section 510(K) of the Federal Food, Drug and Cosmetic Act as a device substantially equivalent to a device in commerce. INSPIRSTAR expressly disclaims any claim that the Product can treat or cure any medical condition or illness. The user must consult with his or her physician as to the recommended use. The Product may only be used under the direct supervision of a licensed medical care provider. There are no other warranties, express or implied. INSPIRSTAR’s sole liability hereunder is to replace the Product with the same or a substitute product; or refund the purchase price. In no event shall INSPIRSTAR be liable for personal injury or death of any person using or misusing the Product.
INDEMNITY TO INSPIRSTAR: Customer agrees to the fullest extend permitted by law Customer will indemnify, defend and hold Inspirstar, including Inspirstar’s partners, officers, directors, agents, employees, subsidiaries, affiliates, parents, successors and assigns, harmless from any claim, demand, cause of action, debt or liability (including reasonable attorneys fees, expenses and court costs) arising from: (a) Customer’s modification(s) of and/or addition(s) to Product(s); and (b) Customer”s breach of this Agreement, (c) Ciustomer’s omissions, misrepresentations, or negligence. Customer agrees to indemnify and hold Inspirstar harmless if any of the Products sold by Customer,injure or damage a third party due to any (a) modification of and/or addition to the Products, misuse or abuse of the Products, negligence or breach of any provision in this Agreement (b) Customer’s failure to abide by all applicable laws, rules, regulations and orders that affect the Products; (c) Customer’s omission, misrepresentation, or negligence, or (d) Customer’s intentional harm to any person or property.
Trademarks and Copyrights for Wholesale: Customer may use the “Inspirstar” name and Inspirstar’s product names solely for the purpose of accurately identifying the Inspirstar-branded Products Customer markets and/or sells under this Agreement. Customer agrees to change or correct, at Customer’s own expense, any material or activity that Inspirstar decides is inaccurate, objectionable or misleading or a misuse of Inspirstar’s name, trademarks, service marks, or Inspirstar’s logos or copyrighted works. Customer may not use the Inspirstar name and Inspirstar’s product names for any other purpose. Customer may not use other Inspirstar trademarks or service marks, or Inspirstar’s logos or copyrighted works, at any time. Customer is prohibited from referring to itself as an authorized reseller of Inspirstar, implying that it and Inspirstar are partners.
FORCE MAJEURE: INSPIRSTAR shall not be responsible for any failure to ship the Product if such failure is due to causes beyond its reasonable control. These causes include, without limitation, government action, fire, flood, explosion, earthquake, strike, labor disputes, labor shortages, picketing, lockouts, transportation embargo or failure or delays in transportation, inability to secure materials by reasons of strike or labor disputes affecting supplies, acts of God, riots or insurrection, acts of any government or agency thereof, or judicial acts. In no event shall INSPIRSTAR be responsible for any loss or damages, including consequential, lost profits, fees, fines or punitive damages.
GOVERNING LAW: This Agreement shall be interpreted and governed by the laws of the State of Arizona.
BINDING AGREEMENT: This Agreement supersedes all previous agreements of the parties whether oral or written with respect to the work to be performed hereunder. This Agreement shall be binding upon the parties hereto, their legal representatives, successors, and assigns.
MODIFICATIONS: This Agreement constitutes the sole and complete understanding of the parties and neither this Agreement nor any provision contained herein may be modified, waived, discharged or terminated except in writing and signed by the parties hereto.
ARBITRATION: Customer and INSPIRSTAR agree that all disputes arising hereunder shall be submitted to binding arbitration in Phoenix Arizona, before a single arbitrator in accordance with the rules and regulations of the American Arbitration Association.
ATTORNEY’S FEES: In the event of any claim, dispute, arbitration or litigation arising out of this contract, the prevailing party shall be entitled to recover , in addition to its costs and expenses, all attorney’s fees, irrespective of whether the matter actually results in litigation or arbitration.