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Terms and Conditions

PURELIFEBIOTICS, LLC TERMS AND CONDITIONS OF SALE ORDER CONFIRMATIONS AND INVOICES

  1. Scope; Binding Effect. THESE TERMS AND CONDITIONS OF SALE APPLY TO ALL PURCHASE ORDERS ACCEPTED BY PURELIFEBIOTICS, LLC AND ITS AFFILIATED COMPANIES (INCLUDING BUT NOT LIMITED TO APRICITY ENTERPRISES, LLC (d/b/a "AEMS USA") (“SELLER”) AND TO ALL PRICE QUOTATIONS MADE BY SELLER. TO THE EXTENT THAT THESE TERMS AND CONDITIONS CONFLICT WITH OR ARE DIFFERENT FROM THOSE CONTAINED IN ANY PURCHASE ORDER OR OTHER PROCUREMENT DOCUMENTS SUBMITTED BY BUYER, THESE TERMS AND CONDITIONS WILL CONTROL AND ANY ADDITIONAL OR INCONSISTENT TERMS ARE REJECTED BY SELLER. BUYER’S ACCEPTANCE OF OR PAYMENT FOR THE GOODS SHALL CONCLUSIVELY CONFIRM ASSENT TO THESE TERMS.
  1. Taxes. All prices are exclusive of any sales, use, revenue, or excise taxes, and customs duties, or other similar charges, all of which will be paid by Buyer.
  1. Delivery. Unless otherwise agreed to by the parties: (a) delivery is FOB Seller’s plant and (b) title and risk of loss will pass to Buyer upon delivery of Products to the carrier at the shipping point. Seller will follow Buyer’s shipping instructions. Absent such instructions from Buyer, Seller will ship by the method it deems most advantageous. Delivery dates are estimates only. Seller will make commercially reasonable efforts to meet specified delivery dates, but will otherwise not be responsible for delayed deliveries.
  1. Acceptance. All orders for Products are final and may not be canceled by Buyer after acceptance by Seller. Upon commencement of production of any order for Products, Buyer shall be responsible to pay the purchase price and all costs and expenses incurred by Seller with respect to such order. Buyer will accept or reject Products within 60 days of delivery. Failure to notify Seller in writing of nonconforming Products within such period shall be deemed an unqualified acceptance. Any use of the Products by Buyer which is not related to acceptance testing shall constitute acceptance.
  1. Credit Sales. Prior credit approval and non-delinquent status are necessary before Seller will ship on an open account basis. If at any time the financial responsibility of Buyer, or the credit risk involved, shall become unsatisfactory to Seller, Seller may require cash or satisfactory security prior to shipments or deliveries hereunder. With respect to any credit sale, Buyer grants to Seller a purchase money security interest in the Products sold, and any proceeds thereof, as security for Buyer’s obligation to pay the purchase price, and Buyer agrees to execute any financing statement or other instrument required to perfect such security interest.
  1. Credit Memos. Unapplied cash, credit memos or other discounts against future purchases issued by Seller in connection with Products returned by Buyer must be used by Buyer within 90 days of issuance by Seller, and unless applied by Buyer against the purchase of additional Products within such 90-day period, shall expire.
  1. Warranty. Products are warranted to conform to agreed or Seller’s published specifications, subject to customary tolerances, and to be free from defects in material or workmanship that materially impair use. Seller will repair or replace, at its option, any Product found to be defective or nonconforming, provided that: (a) Buyer gives prompt written notice of the defect or nonconformity; (b) Seller has provided written return authorization to Buyer and Buyer has returned the nonconforming Product to Seller, freight prepaid by Seller, and; (c) Seller has reasonably verified Buyer’s claim that the Products are defective or nonconforming. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR OBLIGATIONS EXPRESS OR IMPLIED. SELLER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Buyer acknowledges and agrees that the remedies set forth in Section 8 are Buyer’s exclusive remedies for the delivery of defective or nonconforming Products.
  1. Remedies for Nonconforming Goods. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion: (a) replace such Nonconforming Goods with conforming Goods; or (b) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller's facility located in Katy, Texas. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer's shipment of Nonconforming Goods, ship to Buyer, at Buyer's expense and risk of loss, the replaced Goods to the Delivery Point. Buyer acknowledges and agrees that the remedies set forth in this Section 7 are Buyer's sole and exclusive remedies for the delivery of Nonconforming Goods. Except as provided under this Section 8, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
  1. Hazard Communications. Upon request, seller will provide or make available to Buyer a Material Safety Data Sheet (“MSDS”) for all Products. The Buyer agrees to read and understand the MSDS before using the Products. Buyer will hold Seller harmless from any damage, loss, expense, or claim resulting, directly or indirectly, from use of Products.
  1. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER IN AN AMOUNT EXCEEDING THE PURCHASE PRICE OF THE SUBJECT PRODUCT. IN NO EVENT SHALL SELLER BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS OR REVENUES, LOSS OF CUSTOMERS, OR PLANT DOWNTIME) SUSTAINED FROM ANY CAUSE OR ARISING OUT OF ANY LEGAL THEORY, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT TORT LIABILITY, OR OTHERWISE. These limitations include any liability that may arise out of third-party claims. Any lawsuit by Buyer against Seller shall be filed within one year from delivery of the subject Product by Seller. These limitations shall apply notwithstanding any failure of essential purpose or of any limited remedy provided herein. Any technical advice furnished or recommendation made by Seller or any Seller representative concerning any use or application of any Product is believed to be reliable but Seller makes no warranty, either express or implied, as to its accuracy or completeness or of the results to be obtained. With regard to any processing of any Product, Buyer assumes full responsibility for quality control, testing, storage and for use of Products provided by Seller in combination with items provided or manufactured by Buyer or by others.
  1. Buyer Indemnity. Buyer assumes full liability and responsibility for compliance with all information and precautions provided to Buyer, and with all laws, statutes, ordinances and regulations of any governmental authority applicable to the processing, transportation, delivery, unloading, discharge, storage, handling, sale and use of each Product and United States export control laws. Buyer further agrees to protect, defend and hold harmless Seller from and against all claims, demands, causes of action, damages, losses, liabilities, costs, expenses (including reasonable attorneys’ fees), penalties, and judgments associated with the processing, transportation, delivery, unloading, discharge, storage, handling, sale or use of any Product after delivery which is (i) inconsistent with any Information provided to Buyer; (ii) in violation of any applicable law, statute, ordinance or regulation of any governmental authority or (iii) not the result of Seller’s negligence or willful misconduct.
  1. Intellectual Property Infringement. Seller will defend or settle any claim or action brought against Buyer to the extent that it is based upon a claim that Products formulated by Seller and provided by Seller to Buyer infringe any United States patent, and Seller will pay all costs, damages and attorney’s fees finally awarded against Buyer in any such action; but such defense, settlements, and payments are expressly conditioned on the following: (a) that Seller is promptly notified in writing by Buyer of any such claim; (b) that Seller is granted in writing sole control of the defense of any such claim and of all negotiations for settlement or compromise; (c) that Buyer cooperates with Seller in a reasonable way to facilitate the settlement or defense of the claim; and (d) that the claim does not arise from modifications not authorized in writing by Seller. Should Products become, or in Seller’s opinion be likely to become, the subject of such a claim of infringement, Buyer will permit Seller, at Seller’s option and expense, to procure for Buyer the right to continue using the Products, or to replace or modify the Product so that it becomes non-infringing and substantially equivalent in function, or to refund to the Buyer the purchase price of the Product. THE FOREGOING IS SELLER’S EXCLUSIVE OBLIGATION WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
  1. Force Majeure. Seller shall not be responsible for delays caused by acts of God, fires, floods, strikes, war, riot or civil unrest, accidents, delay by suppliers of material or shortages of material, inability to obtain necessary labor, manufacturing facilities, utilities, or transportation, or any other causes beyond Seller’s reasonable control. In the event of Seller’s inability, for any reason, to supply the quantities of Product contemplated by the Agreement, Seller may allocate its available supply among its customers, including affiliates, departments and divisions of Seller, on such basis as Seller may deem commercially reasonable, without liability to Buyer for any failure of performance that may result therefrom.
  1. Confidentiality; Intellectual Property. Proposals, formulations, inventions, developments, drawings, specifications, pricing and technical data furnished to Buyer by Seller shall: (i) be retained in confidence; (ii) remain the exclusive property of Seller; (iii) not be disclosed by Buyer to third parties or used in any manner not authorized by Seller; and (iv) be returned to Seller upon request. Seller does not by entering into or performing this Agreement transfer, license, or assign to Buyer or any other person or entity any right, title, interest, or license to or in any of Seller’s intellectual property, including, without limitation, patents, trade secrets and trademarks, and all such rights, titles and interests are reserved by Seller. Unless otherwise agreed by the parties in writing, any and all developments and improvements to Products made or implemented by Seller shall be the sole and exclusive property of Seller, regardless of Buyer’s participation therein.
  1. Additional Terms. The rights and liabilities of the parties arising out of or relating to this Agreement will be governed by the laws of the State of Texas, excluding application of its conflicts of laws principles and excluding all provisions of the United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods. Venue in any lawsuit between the parties will lie exclusively in state or federal courts in the State of Texas, and the prevailing party in such litigation will be entitled to recover all reasonable costs, fees and other expenses (in addition to statutory “costs” of litigation), including attorneys’ fees and expenses in connection with any trial, appeal, or petition for review. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTIES EXPRESSLY WAIVE TRIAL BY JURY IN ANY ACTION ARISING UNDER THE AGREEMENT. This Agreement may not be assigned by Buyer without Seller’s prior written consent. No waiver of any violation or nonperformance of this Agreement in one instance shall be deemed to be a waiver of any subsequent violation or nonperformance. All waivers must be in writing. If any term or provision of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and each term and provision of the Agreement shall be valid and enforced to the fullest extent permitted by law. Nothing in this Agreement shall be construed as creating any direct or beneficial right in or on behalf of any third party. THIS IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS, UNDERSTANDINGS, OR REPRESENTATIONS WITH RESPECT TO THE SUBJECT MATTER HEREOF. THIS AGREEMENT MAY NOT BE MODIFIED OR AMENDED EXCEPT IN A WRITING SIGNED BY BOTH PARTIES.

GENERAL TERMS AND CONDITIONS FOR PRIVATE LABEL AND CONTRACT MANUFACTURING SERVICES

  1. DEFINITIONS. For purposes of this Agreement:

“Agreement” means the Private Label or Contract Manufacturing Agreement and Statement of Work, including these Terms and Conditions and all exhibits and schedules hereto.

“Seller” refers to PURELIFEBIOTICS, LLC and its affiliated companies.

“Confidential Information” means any and all confidential or proprietary information disclosed by Seller to Customer, before or after the Effective Date, either in writing, orally, by inspection or in any other form or medium, and related to the past, present or future business or technology of Seller, including without limitation information constituting or concerning processes and methodologies; know-how and data; and marketing, sales and business development plans and strategies, including, without limitation, any and all information relating to the Services to be provided hereunder, including the Work Product (as defined below), and, for the avoidance of doubt, any and all information provided by employees or other representatives of Seller or a Customer. The relationship between the parties and the substance of this Agreement shall also be Confidential Information. Regardless of whether marked or identified as confidential or proprietary, any information identified herein as constituting Confidential Information or that Customer knew or should have reasonably known was considered confidential or proprietary by Seller will be considered Confidential Information of Seller under this Agreement.

“Customer Materials” means the trademarks, service marks, trade names, brand names, corporate names, logos, copyrights, works of authorization, artwork, images and other materials provided or made available by Customer.

“Effective Date” means the date set forth on the first page of this Agreement.

“PURELIFEBIOTICS Marks” means the trademarks, service marks, trade names, brand names, corporate names and logos owned and/or controlled by Seller.

“Intellectual Property Rights” means all current and future worldwide patents and other patent rights (including patent applications and disclosures), utility models, trademarks, trade dress, copyrights, works of authorship, moral rights, mask work rights, trade secrets, know-how, improvements, derivative works and all other intellectual property rights.

“Provider” means the person or entity designated or assigned by Seller to provide Services pursuant to this Agreement.

“Services” means any services to be performed by Provider as described in this Agreement.

“Work Product” means all materials, deliverables, Intellectual Property Rights, notes, records, content, media or other work product developed, conceived, created or provided by Provider in connection with the performance of the Services, as well as any suggestions, ideas, recommendations, or other feedback provided by Provider or its representatives that relate to the Customer’s business operations generally.

  1. SCOPE OF THE AGREEMENT.

2.1 Services and Work Product. Customer approves, authorizes and agrees to the Services and the Work Product as set forth in this Agreement and the scope and timeline set forth in this Agreement. Provider shall be responsible for performing all Services using reasonable care and diligence and in accordance with relevant professional standards and applicable law.

2.2 Delegation and Subcontracting. Customer approves Seller delegation of the Services to Provider, and Provider shall be responsible for the Services and the Work Product. Except as expressly approved by Seller in advance in writing, Customer may not delegate or subcontract any of its duties or obligations hereunder to any third party.

2.3 Relationship of Parties. It is the parties’ intention that (i) Seller shall be an independent contractor of Customer and (ii) Provider shall be an independent contractor of Seller under this Agreement. This Agreement will not be construed as a partnership or joint venture between the parties, and Seller will not be liable for any obligations incurred by Customer. Furthermore, except upon the prior written consent of Seller, neither Customer nor Provider will have any authority to bind or commit Seller in any manner. Customer will not represent to any person that it is an agent, officer or employee of Seller, or that it is otherwise authorized to bind Seller to any transaction.

2.4 Expenses. Except as otherwise expressly set forth in this Agreement, Customer shall be responsible for all expenses incurred in connection with this Agreement, including but not limited to, license fees, memberships and dues; and all salary, expenses, and other compensation paid to employees or contract personnel of Customer (to the extent permitted hereunder) or required by Customer.

  1. TERM AND TERMINATION.

3.1 Term. The term of this Agreement will commence on the Effective Date and will expire within thirty (30) of delivery of the Work Product, unless earlier terminated in accordance with the terms of this Agreement; provided, however, the parties hereto acknowledge and agree that (i) all provisions under this agreement requiring payment of compensation for Work Product and (ii) Sections 1, 3, 5, 6, 7, 9 and 11 of this Agreement will survive any termination or expiration of this Agreement. Once commenced, the Services cannot be canceled by Customer without Seller’s written consent.

3.2 Termination for Convenience. Seller shall have the right to terminate this Agreement at any time in its sole discretion, with or without cause.

3.3 Termination for Breach. In the event that a party is in material breach under this Agreement and fails to cure such breach within thirty (30) days of written notice from the other party specifying the nature of such material breach, then the non-breaching party may immediately terminate this Agreement upon written notice to the breaching party. Notwithstanding the expiry or termination of this Agreement, those provisions of this Agreement which by their nature should survive shall survive termination of this Agreement and continue in full force and effect.

  1. REPRESENTATIONS AND WARRANTIES.

4.1 Mutual Representations. Each party represents and warrants to the other that: (a) it is duly incorporated or organized, validly existing and in good standing under the laws of the state of its incorporation or organization, and has full power and authority to execute, deliver and perform this Agreement; and (b) this Agreement has been duly and validly executed and constitutes the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

4.2 Customer Representations. Customer hereby warrants and represents that: (a) Customer has and will have all rights, titles, licenses, Intellectual Property Rights, permissions and approvals which are necessary for Provider’s performance of the Services and delivery of the Work Product, including all rights to Customer Materials; (b) Customer has not entered into, and shall not enter into, any agreement that would interfere with its ability to perform the Services for Seller hereunder; and (c) no copyright, patent, trade secret, trademark, or other Intellectual Property Rights of a third party will be infringed by the Customer Materials or the Services or Work Product provided to Customer under this Agreement.

  1. LIMITATION OF LIABILITY. IN NO EVENT SHALL SELLER BE LIABLE TO CUSTOMER OR TO ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING ANY LOST DATA, LOST PROFITS, LOST REVENUES OR LOST SAVINGS, EVEN Seller HAS BEEN ADVISED, KNOWS OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT. IN NO EVENT SHALL Seller’S LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT, UNDER ANY THEORY OF LAW, EXCEED IN THE AGGREGATE THE AMOUNT ACTUALLY PAID BY CUSTOMER TO SELLER PURSUANT TO THIS AGREEMENT.
  1. OWNERSHIP AND LICENSES.

6.1 Ownership of Seller Marks. Customer acknowledges that Seller, its affiliates or licensors (“Seller Entities”) are the owners of the Seller Marks and all goodwill associated with the Seller Marks and that use of the Seller Marks in relation to the Services will not create any right, title or interest in such Seller Marks in Customer. Customer agrees that any use of the Seller Marks, and all goodwill associated with such use, shall inure to the benefit of and be on behalf of the Seller Entities.

6.2 Ownership of Work Product. In addition, Customer shall solely and exclusively own all Work Product and all of the Work Product created by Provider pursuant to this Agreement for such Customer shall be deemed to have been created or prepared for Customer as a “work made for hire” pursuant to the Copyright Act of 1976. The assignment of the Work Product under this Agreement includes all rights of paternity, integrity, attribution and withdrawal and any other rights known as, or substantially similar to, “moral rights.” Provider shall be responsible for such assignment of Work Product to Customer.

6.3 Infringement. Customer shall have the sole right and discretion to bring, prosecute and settle infringement, unfair competition and similar proceedings with regard to the Work Product delivered to such Customer.

6.4 Restrictions on Use of Work Product. Customer will have the exclusive and unlimited right to (or to decline to) use, control, claim ownership of, edit, combine with other items, modify, translate, adapt and exploit all Work Product.

  1. INDEMNIFICATION.

7.1 Customer Indemnity. Customer shall, upon notice, indemnify, defend, and hold harmless Seller and its officers, directors, employees and agents (each, an “Indemnified Party”) from and against any third party claims, damages, liabilities, costs and expenses (including court costs and reasonable counsel fees) arising out of (a) any breach by Customer of its representation, warranties, or obligations hereunder; (b) negligence or willful misconduct of Customer; (c) any claims that the Work Product infringes any third party Intellectual Property Rights or other rights; or (d) sale, resale or marketing of any products of Customer in violation of any applicable law, statute, ordinance or regulation of any governmental authority. Customer assumes full liability and responsibility for compliance with all laws, statutes, ordinances and regulations of any governmental authority applicable to the processing, transportation, delivery, unloading, discharge, storage, handling, sale, resale, marketing and use of products of Customer and United States export control laws.

7.2 Indemnification Procedures. If any Indemnified Party makes an indemnification request to Customer, the Indemnified Party may, in its discretion, permit Customer to control the defense, disposition or settlement of the matter at its own expense; provided that Customer shall not, without the consent of the Indemnified Party, enter into any settlement or agree to any disposition that imposes any conditions or obligations on the Indemnified Party. The Indemnified Party shall notify Customer promptly of any claim for which Customer is responsible and shall reasonably cooperate with Customer to facilitate defense of any such claim. An Indemnified Party shall at all times have the option to participate in any matter or litigation, including but not limited to participation through counsel of its own selection, if desired, the hiring of such separate counsel being at Indemnified Party’s own expense.

  1. COMPENSATION.

8.1 Compensation. Compensation will be as set forth in this Agreement. In the event of a dispute involving any Customer payment, Seller may resolve such dispute at its discretion. Customer will pay each invoice to Seller within fifteen (15) days of the date of the invoice or in accordance with the agreed upon payment term, to the address designated by Seller.

  1. CONFIDENTIALITY.

9.1 Use and Disclosure Restrictions. Customer agrees not to use Confidential Information except as necessary for the performance or enforcement of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such employee and subcontractor is bound by a written agreement that contains use and nondisclosure restrictions no less restrictive than the terms set forth in this Section. Customer will employ all reasonable steps to protect the Confidential Information from unauthorized use or disclosure, including, but not limited to, all steps that it takes to protect its own information of like importance.

9.2 Return of Confidential Information. Upon Seller’s written request, or upon termination of this Agreement, whichever is earlier, Customer will deliver to Seller, or, at Seller’s option certify the destruction of, all Confidential Information received by Customer from Seller pursuant to this Agreement, including all reproductions or copies thereof.

9.3 Injunctive Relief. The parties agree that any breach by Customer or any of its officers, directors, or employees, of any provision of this Section may cause immediate and irreparable injury to Seller and that, in the event of such breach, the injured party will be entitled to seek injunctive relief as well as any and all other remedies available at law or in equity.

  1. FORCE MAJEURE. Neither Seller nor Provider shall be held liable for any delay or failure in performance of its obligations under the Agreement from any cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of civil or military authority, government regulations, government agencies, delay or failure to receive government approvals, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, power blackouts affecting facilities, unusually severe weather conditions, inability to secure products or services of other persons or transportation facilities, acts or omissions of transportation carriers, or delays associated with visa, immigration and/or custom problems, unavailability of or interruption or delay in telecommunications or third party services (including wireless services), virus attacks or hackers and failure of third party software.
  1. MISCELLANEOUS.

11.1 Notices. Any notices required or permitted to be given hereunder shall be given in writing and shall be delivered (a) in person and notice shall be effective upon delivery; (b) by certified mail, postage prepaid, return receipt requested and notice shall be effective upon delivery or attempted delivery; (c) by email and notice shall be effective when email is delivered; (d) facsimile and notice shall be effective upon delivery as evidenced by sender’s confirmation receipt; or (e) by a commercial overnight courier that guarantees next day delivery and provides a receipt,and notice shall be effective upon delivery or attempted delivery. All such above-referenced notices shall be sent to the address set forth on this Agreement to such other address as any party may from time to time specify in writing to the other party.

11.2 Non-Solicitation. During the Term of this Agreement and for a period of twelve (12) months thereafter, Customer shall not, without the prior written consent of Seller, solicit for employment or hire, whether as a full-time or part-time employee, consultant or otherwise, any employee, consultant or officer from Seller or Provider.

11.3 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Texas, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.

11.4 Assignability. Customer shall not be allowed to assign, transfer or delegate this Agreement in whole or in part without the prior written consent of Seller, which may be withheld in Seller’s sole discretion. Any assignment in violation of this Section 11.4 is null and void.

11.5 Severability. In the event any one or more provisions of this Agreement shall for any reason be held to be invalid, illegal, or unenforceable, that provision(s) will be limited or eliminated to the minimum extent necessary so that the provisions of this Agreement shall remain valid and enforceable and of full force and effect.

11.6 Waiver. Neither the failure of any party to insist upon or enforce strict performance by the other party of any provision of this Agreement, nor the failure, delay or omission by any party in exercising any right with respect to any term of this Agreement, shall be construed as a waiver or relinquishment to any extent of any party’s right to assert or rely upon any such provision or right in that or any other instance.

11.7 Construction. The parties intend that this Agreement should not be construed in favor of or against any party by reason of the extent to which any party or its professional advisors participated in their preparation or drafting.

11.8 Headings. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.

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