Terms & Conditions
YOUR PURCHASE OF THIS PRODUCT IS SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS (the Agreement). PLEASE READ THE FOLLOWING TERMS CAREFULLY. Confirm that you agree to be bound by these terms by clicking on the “I agree to these terms and conditions” button below. If you click to accept these terms, they will constitute a binding contract.
Limitation of liabilities. Aggrieved buyers of goods have a number of types of damages they can collect should the product not conform to their expectations, including both direct and indirect damages. Direct damages are those that flow necessarily from the breach. Indirect damages include damages that do not flow necessarily from the breach but are foreseeable results of the breach. In some states, parties are permitted to agree to limit that indirect liability in the event of a breach as part of a sale. We recommend you do so using the following language:
Limitation of Liability
To the extent permitted by law, Str8organics SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES WHETHER RESULTING FROM NON-DELIVERY OR FROM THE USE, MISUSE, OR INABILITY TO USE THE PRODUCT OR FROM DEFECTS IN THE PRODUCT OR FROM THE NEGLIGENCE OR OTHER TORT OF Str8organics. THIS EXCLUSION COVERS, without limitation, damages for LOSS OF USE, REVENUE, OR PROFIT; COST OF SUBSTITUTE EQUIPMENT; ADDITIONAL COSTS INCURRED BY DISTRIBUTOR; AND CLAIMS BY BUYER’S CUSTOMERS OR OTHER THIRD PARTIES.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
Maximum liability. Some states permit sellers to cap their liability for certain losses caused by defective products at the price of the goods. This provision should read as follows:
Str8organics’S AGGREGATE LIABILITY (WHETHER IN TORT, CONTRACT, OR OTHERWISE AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE—WHETHER ACTIVE, PASSIVE, OR IMPUTED—PRODUCT LIABILITY, OR STRICT LIABILITY OF Str8organics) FOR ALL LOSSES AND DAMAGES THAT DO NOT INVOLVE PERSONAL INJURY AND ARISE UNDER THIS AGREEMENT OR FROM ANY PRODUCTS OR OTHER ITEMS FURNISHED UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID TO Str8organics UNDER THIS AGREEMENT WITH REGARD TO THE PRODUCT AT ISSUE.
Indemnification. This clause requires purchasers to indemnify Str8organics for any third person’s injury or damage to property where that injury or damage was caused by the purchaser’s own negligence:
Agreement to Indemnify Str8organics
BUYER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS Str8organics FOR ANY CLAIMS, DAMAGES, LOSSES OR EXPENSES, INCLUDING ATTORNEYS FEES, ARISING FROM OR RELATING TO CLAIMS BROUGHT BY THIRD PARTIES AGAINST Str8organics FOR INJURIES, DAMAGES, OR LOSSES CAUSED IN WHOLE OR IN PART BY BUYER’S OWN CONDUCT WITH RESPECT TO THE PRODUCT, INCLUDING NEGLIGENT, GROSSLY NEGLIGENT, OR RECKLESS OPERATION OR USE OF THE PRODUCT. In no event shall Buyer’s indemnity obligation include that portion of a claim resulting from the negligence, intentional misconduct, or other tortious fault of Str8organics.
Arbitration. Although not strictly a disclaimer, including an arbitration clause in the contract can help reduce product liability risk by potentially limiting the ability of the buyer to sue Str8organics in court. Here is some sample language:
Dispute Resolution and Binding Arbitration
(a) YOU AND Str8organics ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS FROM Str8organics, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
(b) The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section 12. (The AAA Rules are available at www.adr.org/ or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
(c) You may elect to pursue your claim in small-claims court rather than arbitration if you provide us with written notice of your intention do so within 60 days of your purchase. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy.
(d) You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR Str8organics WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
Exclusive remedies clause. As discussed above, this clause would be included in the warranty, and outlines the exclusive remedy for breach of that warranty. In the absence of an exclusive remedy clause, a buyer can choose among several types of remedies permitted by law for breach of warranty. The language below is just an example of what you might include. We should discuss the specifics of the warranty program you had in mind. Here is the sample language:
Exclusive Remedy for Breach
If the Product fails to conform to the preceding warranty, Buyer must notify Str8organics within a reasonable time and in no event more than thirty (30) days after the discovery of the nonconformity and must provide information that Str8organics reasonably requests and follow Str8organics’s instructions, which may include returning the Product to Str8organics at a location to be specified by Str8organics. Buyer shall be responsible for and must prepay any shipping expense for return of the Product. Str8organics will investigate and, in the event of a breach of warranty, will provide, at its sole option and within a reasonable period of time:
repair of any nonconforming Product or components;
replacement of any nonconforming Product or components with a conforming Product or components;
shipment to Buyer of conforming components to replace nonconforming components; or
if a replacement Product of the same model is not reasonably available, replacement of any nonconforming Product with a substantially similar product.