 All sales by Elemental Gourmet, LLC (the "Company") are expressly conditioned upon the terms and conditions set forth below. Any additional or different terms or conditions set forth in the purchase order of purchaser or in any similar communication are hereby objected to by the Company and shall not be binding nor effective unless assented to in writing by an authorized representative of the Company. Price and Terms: Unless otherwise stated, all orders will be invoiced at the Company's prices in effect on the date of shipment, which purchaser agrees to pay. Prices do not include sales, use, excise, value added or similar taxes. Payment will be authorized at the time of purchase, and will be captured at the time of shipping. Delivery: Title to and risk of loss of all goods sold hereunder shall pass to purchaser upon their delivery, F.O.B. Ladera Ranch, California. Inspection: If upon receipt of the goods by purchaser the same shall appear not to conform to the purchase order, purchaser shall within forty-eight (48) hours after receipt thereof notify the Company of such condition and afford the Company a reasonable opportunity to inspect the goods and make any appropriate adjustment or replacement. The remedies afforded purchaser under the paragraph entitled "WARRANTY" shall be the exclusive remedies for the defective goods whether or not discovered upon inspection by purchaser. Purchaser shall not delay payment for the goods pending their inspection. Warranty: The Company warrants that all Company products (the "Product") will perform in accordance with its specifications. The Company agrees to correct or replace any defects or errors in the Product for a period of ten years from the initial date of retail purchase from the Company or an authorized Company dealer. All shipping costs incurred in shipping Product to the Company for warranty repair will be borne by the purchaser. The Company's sole liability and the exclusive remedy shall be, at the Company's option, the repair or replacement of the Product. The Company makes no additional representations or warranties, express or implied, regarding the Product and/or its use. By way of example, but not of limitation, the Company makes no representations or warranties of merchantability or fitness for a particular purpose. THE COMPANY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO THE PRODUCT. Purchaser assumes the responsibility for the selection of the Product as being adequate for and appropriate for purchaser's purposes. IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The foregoing warranty extends to all purchasers or owners of the Product during the warranty period. The warranty does not extend to defects to (i) the Product arising out material or workmanship not provided or furnished by the Company, (ii) the Product resulting from abnormal use of the Product or use in any manner other than as specified in the Product's operating manual, or (iii) components or parts warrantied by another party. Returns: Any return will be for credit or purchase money refund, whichever the purchaser prefers. Product must be in new, saleable condition and must have been purchased within 60 days of the date of return. Final decision to accept any return will be made after the Company has inspected the returned Product. Limitation Of Liability: IN NO EVENT WILL ELEMENTAL GOURMET, LLC, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SPONSORS, ADVERTISERS, PARENTS, AFFILIATES, SUCCESSORS OR ASSIGNS, BE LIABLE TO ANY PARTY (i) FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER DAMAGES ARISING IN ANY WAY OUT OF THE AVAILABILITY, USE, RELIANCE ON, OR INABILITY TO USE THE WEB SITE, EVEN IF ELEMENTAL GOURMET OR ITS AGENTS SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE; OR (ii) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN, OR DESTRUCTIVE PROPERTIES OF THE WEB SITE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, ELEMENTAL GOURMET'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. Indemnification: Upon a request by the Company, you agree to defend, indemnify and hold the Company, its affiliates, officers, directors and employees harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys' fees, arising in any way from your use or misuse of the My Pro Kitchen website, or the uploading, posting, publishing, emailing, reproduction, distribution or transmission of any Content or other materials by you or users authorized by you or any violation of these Terms and Conditions by you. The Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with the Company in asserting any available defense. Copyrights And Copyright Agent: We respect the intellectual property rights of others, and require that the people who use the My Pro Kitchen website do the same. Applicable Laws / Jurisdiction: You agree that the laws of the State of California, without regard to its conflicts-of-law rules, shall govern these Terms and Conditions. Please note that your use of the My Pro Kitchen website may be subject to other local, state, national, and international laws. You expressly agree that exclusive jurisdiction for any claim or dispute with the Company resides in the courts of the State of California, and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of the State of California, in connection with any such dispute and including any claim involving the Company or its affiliates, subsidiaries, employees, contractors, officers, directors, suppliers, and content providers. Any inquiries concerning these terms and conditions of use should be directed to info@MyProKitchen.com Provisions unenforceable or invalid If any part of this agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Assignment You shall not transfer, assign, sublicense nor pledge in any manner whatsoever, any of your rights or obligations under this Agreement. The Company may transfer, assign sublicense or pledge in any manner whatsoever, any of its rights and obligations under this agreement to a subsidiary, affiliate, or successor thereof or to any third party whatsoever, without notifying you or receiving your consent. |