1. Definitions: The following definitions apply.
1.1 “Terms” means Living Essentials, LLC’s and Innovation Ventures, LLC’s Terms and Conditions of Supply, as may be modified from time to time and posted to www.5hourenergy.com
1.2 “Seller” means all of the following: Living Essentials, LLC (“LE”) and Innovation Ventures, LLC (“Innovation Ventures”) and each of their respective past and present officers, directors, members, managers, agents, representatives, shareholders, principals, employees, consultants, affiliates, subsidiaries, parents, divisions, attorneys, partners, joint venturers, predecessors, successors, assigns, licensors, and entities owned or controlled, directly or indirectly by LE or Innovation Ventures (whether either is now existing or having been dissolved or terminated).
1.3 “Buyer” means the person(s) or entity(ies) requesting extension of credit from Seller incident to purchases of products from Seller or the person(s) or entity(ies) requesting supply of Sellers’ products without applying for credit.
1.4 “Products” means any good sold by or offered for sale by Seller.
1.5 “Claim” means any and all claims, demands, causes of action, actions, suits, rights, defenses, counterclaims, requests for contribution or indemnity, debts, dues, duties, sums of money, accounts, reckonings, covenants, bonds, bills, specialties, contracts, agreements, promises, variances, trespasses, damages, judgments, extents, executions, controversies, liabilities, obligations, setoffs, and the like, both known and unknown, suspected and unsuspected, and liquidated and unliquidated, of every kind and nature whatsoever in law, admiralty, equity, or otherwise, under the laws of any local, state, provincial, regional, federal or national governing authority.
2. The Contract: The delivery of Seller’s Products to Buyer (whether delivered by Seller directly or indirectly through one or more intermediaries) or Seller’s offer of credit to Buyer as to Buyer’s payment for Products constitutes an offer by Seller to form a binding contract with Buyer which includes all of these Terms in exchange for Buyer’s ability to use or re-sell the Products or purchase the Products upon credit, respectively (collectively, the “Contract”). Seller’s offer to sell Products to Buyer is accepted by Buyer’s receipt of delivered Products, unless Buyer returns all of the delivered Products, Unopened (“Unopened” means that shipping packaging may be opened but none of the cartons or bottles of Product may be opened), within a time based on Seller’s reasonable discretion. If Buyer does not agree to these Terms and the parties have not otherwise entered into a separate written agreement on the same subject matter, no Contract is formed and Buyer must return all of the delivered Products, Unopened, within thirty days. Returns of all delivered, unopened Products may be subject to a restocking fee of 15%. Approved returns will be issued a credit within 4 to 6 weeks to the Buyer’s accounts. Seller’s offer to provide credit to Buyer is accepted by Buyer if Buyer submits the credit application and the application is approved. The parties’ Contract is limited to and expressly conditional upon Buyer’s acceptance of all of these Terms exclusively, along with price, delivery, and quantity terms specified in the order for Products. Any additional or different terms proposed by Buyer are unacceptable to Seller, are expressly rejected by Seller, will not become part of the Contract, are invalid, and are non-binding. Any modification of these Terms must be expressly agreed in a separate agreement mutually signed by authorized representatives of the parties. The parties have agreed and it is their intent that the battle of the forms Section 2-207 of the Uniform Commercial Code shall not apply to these Terms or to any invoice or acceptance form of Seller relating to these Terms. It is the parties’ intent that these Terms shall exclusively control the relationship of the parties, and in the event of any inconsistency between Buyer’s offer and these Terms, these Terms shall control.
3. Incorporation of the Terms and Indemnification: In the event Buyer is authorized to re-sell or otherwise convey the Products to another party, Buyer shall incorporate these Terms into its transaction and the party with whom Buyer is transacting (the “Sub-Buyer”) shall accept and agree to be bound by these Terms. The definition of Sub-Buyer does not include persons or entities that purchase Products in order to consume the Products and not in order to re-sell or re-convey the Products to any other person or entity, also known as, for example, consumers or end-users. In the event the Sub-Buyer rejects these Terms, then Buyer is not authorized to re-sell or convey the Products to Sub-Buyer. If Buyer re-sells or conveys the Products to Sub-Buyer without Sub-Buyer’s acceptance and agreement to be bound by these Terms, Buyer will, to the fullest extent permitted by law, indemnify, defend, and hold Seller harmless from any and all direct and indirect Claims; all litigation or arbitration costs, including but not limited to attorneys’ fees, liabilities, damages, and settlements in any litigation or arbitration between Seller and Sub-Buyer (on an individual, joint, collective, or representative basis); and any other harms arising from or related to any such lack of acceptance or agreement by Sub-Buyer. To the fullest extent permitted by law, the obligation to defend and indemnify under this section will apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability, statute or otherwise. Seller has the right to be represented by and actively participate through its own counsel in the defense and resolution of any matters subject to indemnification, at Buyer’s expense.
4. No Grant of Intellectual Property Rights: No express or implied rights are granted to Buyer or Sub-Buyer under any of patent, trademark, service mark, logo, copyright, trade secret, confidentiality, or other intellectual property rights owned, used, held or licensed by Seller.
5. Termination: Seller may terminate all or any part of the Contract, without Seller incurring liability to Buyer or Sub-Buyer, if Buyer or Sub-Buyer: (i) repudiates, breaches or threatens to breach any of the terms of the Contract; (ii) makes a false representation on the credit application; or (iii) enters or offers to enter into a transaction that includes a sale of a substantial portion of its assets or a merger, sale or exchange of stock or other equity interests that would result in a change in control of Buyer or Sub-Buyer. Buyer or Sub-Buyer will notify Seller within ten (10) days after entering into any negotiations that could lead to the situation specified in (iii) above. In addition to any other rights of Seller to cancel or terminate the Contract, Seller may, at its option and in its sole discretion, terminate all or any part of the Contract at any time and for any or for no reason, by giving at least fourteen (14) days’ written notice to Buyer. Further, Buyer or Sub-Buyer may at its option and in its sole discretion, terminate all or any part of the Contract at any time and for any or for no reason, by giving at least fourteen (14) days’ written notice to Seller and by returning all Product, Unopened, to Seller.
6. Release: In consideration for the extension of credit by Seller, the shipment of Seller’s Products to Buyer or Sub-Buyer and/or the sale of Seller’s Products to Buyer or Sub-Buyer, or all of the above, which the parties agree is good and valuable consideration, and to the fullest extent permitted by law, Buyer and Sub-Buyer hereby forever release and agree to hold harmless Seller from any and all Claims and demands for attorneys’ fees and costs which Buyer or Sub-Buyer and any predecessor(s) and/or successor(s) ever had or now has or in the future may have against Seller relating to any activity, action or non-action of any kind or manner occurring on or before: the date of Seller’s extension of credit and Buyer and/or Sub-Buyer’s acceptance of each and every shipment of Products. It is specifically agreed that the release set forth in this paragraph shall be interpreted broadly, but shall not relieve the Seller of its obligations to perform the obligations created by the Contract. This document is intended to provide a comprehensive release of liability, but is not intended to assert any claims or defenses which are prohibited by law.
7. Claims by Buyer or Sub-Buyer; Agreement to Arbitration and Class Action Waiver:
7.1 Any Claim brought by Buyer or Sub-Buyer shall be submitted for adjudication by binding arbitration in front of a single arbitrator and be governed by the Federal Arbitration Act. The arbitration process for Buyer or Sub-Buyer’s claims shall be commenced by submitting a written demand for arbitration to Seller. The parties will confer and agree on the identity of a single arbitrator within 30 days of Seller receiving the demand. The arbitration will be governed by the Federal Arbitration Act and the parties agree to using the Commercial Rules of the American Arbitration Association in effect at the time the arbitration demand is made (available at www.adr.org), except that discovery will be governed by Rules 26-34 of the Federal Rules of Civil Procedure. Each party will bear equally the costs and expenses of the arbitrator and any arbitration administration agency in the event they agree to use one, except the prevailing party in any arbitration shall be awarded its attorneys’ fees, costs, and expenses incurred in connection with the arbitration. The arbitration shall take place at a location in the Metro-Detroit area, Michigan. Any issues which relate to the validity, enforceability, arbitrability (including, but not limited to, issues relating to the class action waiver), and scope of arbitration shall be determined by the arbitrator. The award of the arbitrator will be enforceable in any court of competent jurisdiction.
7.2 Buyer and Sub-Buyer, after consulting with, or having the opportunity to consult with, counsel of their choice, knowingly, voluntarily, and intentionally agrees not to (a) bring any Claim, against Seller on a collective basis or as a class plaintiff, class claimant, or class representative; (b) join any action in any court, administrative body or arbitration as a class member or collective party, (c) participate as an adverse party in any way in any collective action or class action lawsuit, proceeding or arbitration against Seller, or (d) join or consolidate in the arbitration with claims or Claims brought by or against any other person or entity unless otherwise agreed to in writing by all parties. Nothing in this paragraph, however, limits Buyer’s or Sub-Buyer’s rights to bring any Claim or arbitration against Seller on a non-class, non-representative or non-collective basis. Seller, after consulting with, or having the opportunity to consult with, counsel of their choice, knowingly, voluntarily, and intentionally agrees not to (a) bring any Claim, against Buyer or Sub-Buyer on a collective basis or as a class plaintiff, class claimant, or class representative; (b) join any action in any court, administrative body or arbitration as a class member or collective party, (c) participate as an adverse party in any way in any collective action or class action lawsuit, proceeding or arbitration against Buyer or Sub-Buyer, or (d) join or consolidate in the arbitration with claims or Claims brought by or against any other person or entity unless otherwise agreed to in writing by all parties. Nothing in this paragraph, however, limits Seller’s rights to bring any Claim or arbitration against Buyer or Sub-Buyer on a non-class, non-representative or non-collective basis.
7.3 SELLER, BUYER, AND SUB-BUYER ACKNOWLEDGE THAT THE RIGHT TO A JURY TRIAL IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. BUYER AND SUB-BUYER, AFTER CONSULTING WITH, OR HAVING THE OPPORTUNITY TO CONSULT WITH, COUNSEL OF ITS CHOICE, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO HAVE A JURY TRIAL ON THE CLAIM(S) SUBJECT TO ARBITRATION. THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING. NOTE THAT OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY NOT BE AVAILABLE IN ARBITRATION.
8. Time for Buyer or Sub-Buyer to Bring Claims: The arbitration demand by Buyer or Sub-Buyer as to any Claim must be commenced no later than one year after the first breach or other event giving rise to a Claim occurs, or Buyer or Sub-Buyer becomes aware of the existence (or facts and circumstances giving rise to the existence) of such claim, whichever occurs first.
9. Claims by Seller: Notwithstanding Section 7, the parties acknowledge and agree that Seller owns, licenses, controls, holds, or has the right to protect intellectual property rights associated with the Product, including, but not limited to, trade mark, trade dress, copyright, patent, trade secrets, and confidential information. In order to protect these rights including to prevent irreparable harm, Seller may bring a lawsuit against Buyer, Sub-Buyer, or both, including for the purpose of seeking immediate injunctive and/or equitable relief in addition to other relief and may obtain trial by jury for all claims so triable. If a lawsuit is brought, the parties irrevocably and unconditionally agree and consent to the exclusive jurisdiction of the appropriate State and Federal courts located within the State of Michigan, provided that Seller may elect to bring an action against Buyer or Sub-Buyer in any court having jurisdiction over Buyer or Sub-Buyer.
10. Remedies: The rights and remedies reserved to Seller in each Contract will be cumulative with and in addition to all other or legal or equitable remedies. Buyer or Sub-Buyer will reimburse Seller for any incidental, consequential or other damages (including lost profits) caused or required by Buyer’s or Sub-Buyer’s breach. Seller’s damages include, without limitation, reasonable attorneys’ fees and other professional fees, settlements and judgments incurred by Seller and other costs associated with Seller’s administrative time, labor and materials. In any action brought by Seller to enforce Buyer’s or Sub-Buyer’s obligations in connection with the Contract, Buyer and Sub-Buyer each acknowledges and agrees that monetary damages are not a sufficient remedy for any actual, anticipatory or threatened breach of the Contract and that, in addition to all other rights and remedies that Seller may have, Seller shall be entitled to specific performance and injunctive equitable relief as a remedy for any such breach, plus Seller’s reasonable attorneys’ fees and costs. Further, the prevailing party in any litigation or arbitration shall be awarded its attorneys’ fees, costs, and expenses incurred in connection with the litigation. The prevailing party shall include the party who obtained a greater relief in the action whether obtaining affirmative relief on the Claim(s) at issue or defending against such Claim(s).
11. Disclaimer of Warranty; Limitation of Liability: All Products provided by Seller to Buyer or Sub-Buyer are provided on an “as is,” “where is,” and “where available” basis. Seller makes no representations or warranties of any kind, express or implied, as to the Products. Seller expressly disclaims all warranties of any kind, express or implied, to the fullest extent permissible under applicable law, with respect to the Products, including warranties of merchantability, quality, title, and fitness for a particular purpose.
IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, MULTIPLE OR OTHER INDIRECT DAMAGES, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. TO THE EXTENT THAT LIMITATION OF LIABILITY IS PERMITTED BY LAW, SELLER’S LIABILITY TO BUYER OR SUB-BUYER IS LIMITED TO THE PURCHASE PRICE OF THE PRODUCTS GIVING RISE TO ANY CLAIM.
12. Relationship of Parties. Seller, Buyer, and Sub-Buyer are independent contracting parties and nothing in the Contract will make any party the employee, agent or legal representative of any other party for any purpose. The Contract does not grant any party any authority to assume or to create any obligation on behalf of or in the name of any other. Buyer and Sub-Buyer will be solely responsible for all employment and income taxes, insurance premiums, charges and other expenses it incurs in connection with its performance of the Contract, except as expressly provided in a written agreement signed by the parties. All employees and agents of Buyer or Sub-Buyer or their respective contractors are employees or agents solely of Buyer or Sub-Buyer, respectively, or such contractors, and not of Seller, and are not entitled to employee benefits or other rights accorded to Seller’s employees. Seller is not responsible for any obligation with respect to employees or agents of Buyer or Sub-Buyer or their contractors.
13. Prevalence of Terms: In the event there is a conflict between these Terms and any other agreement between Buyer and Seller, these Terms prevail.
14. No Assignment: The following may not be assigned or delegated, in whole or in part, without Seller’s prior written consent: the Contract; any right, obligation, interest, or privilege under the Contract; and any Claim related to the Contract.
15. Governing Law: The Contract and the entire relationship between or among Seller, Buyer, or Sub-Buyer, including the enforceability of each of the Contract provisions and arbitrability, shall be governed by the laws of the State of Michigan, without reference to its conflicts of laws provisions, and the United States of America.
16. Severability; No Implied Waiver: If any provision herein or any part thereof is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, it may be reformed or deleted, as the case may be, but only to the extent necessary to comply with applicable law. If reformed, the reformed provision shall conform as closely as possible to the original intent of the parties. The remaining provisions of the Terms will remain in full force and effect. The failure of either party at any time to require performance by the other party of any provision of the Terms or the Contract will not affect the right to require performance at any later time, nor will the waiver of either party of a breach of any provision of the Terms or the Contract constitute a waiver of any later breach of the same or other provision of the Terms or the Contract.
17. Survival. Termination or expiration of this Agreement shall not affect the rights and obligations of the parties which arose prior to any such termination or expiration (unless otherwise provided herein) and such rights and obligations shall survive any such termination or expiration.
18. Entire Agreement: The Contract constitutes the entire agreement between or among Seller, Buyer, or Sub-Buyer and may not be modified except with a written amendment signed by authorized representatives of each party or by Seller’s modification of these Terms which may occur from time to time and which will be posted on Seller’s website, identified above.
Revised January 4, 2019
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