TERMS AND CONDITIONS FOR THE ONLINE ORDERING OF LABORATORY TESTING SERVICES.
1. THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH SOMNIO GLOBAL, LLC DOING BUSINESS AS XPERIENTIAL LABORATORY AND MATERIAL TESTING (XPE”), OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
PLEASE REVIEW THE TERMS AND CONDITIONS BELOW AND INDICATE THAT YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS, BY CLICKING “I AGREE” BELOW.
These terms and conditions (these “Terms”) apply to the purchase and sale of the analytical laboratory testing services (the “Testing Services”) through www.Xperiential.com (the “Site”). These Terms are subject to change by XPE (referred to as “us”, “we”, or “our” as the context may require) without prior written notice at any time, in our sole discretion. The latest version of these Terms will be posted on this Site, and you should review these Terms before purchasing any Testing Services that are available through this Site. Your continued use of this Site after a posted change in these Terms will constitute your acceptance of and agreement to such changes.
2. Order Acceptance and Cancellation. You agree that your order is an offer to buy, under these Terms, all Testing Services listed in your order. All orders must be accepted by us or we will not be obligated to sell the Testing Services to you. We may choose not to accept any orders in our sole discretion. After having received your order, we will send you a confirmation e-mail with your order number and details of the items you have ordered. Acceptance of your order and the formation of the contract of sale between XPE and you will not take place unless and until you have received your order confirmation e-mail. You have the option to cancel your order at any time before we have sent your order confirmation e-mail by calling our Customer Service Department at 248-574-5528.
3. Prices and Payment Terms.
(a) All prices posted on this Site are subject to change without notice. The price charged for a Testing Service will be the price in effect at the time the order is placed and will be set out in your order confirmation e-mail. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes. All such taxes will be added to your merchandise total and will be itemized in your shopping cart and in your order confirmation e-mail. We are not responsible for pricing, typographical,
or other errors in any offer by us and we reserve the right to cancel any orders arising from such errors.
(b) Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. We accept Visa, Mastercard, Discover, American Express and PayPal for all purchases. You represent and warrant that (i) the credit card information you supply to us is true, correct, and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable
taxes, if any.
4. Shipments; Delivery; Title and Risk of Loss.
(a) We will arrange for shipment of the testing kit. Please check the order form for any specific delivery options. You will pay any shipping and handling charges specified during the ordering process.
(b) Title and risk of loss pass to you upon our delivery of the test kit and the test results of Testing Services (as the case may be) to the carrier/delivery. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
5. Disclaimer Regarding Testing Services. You acknowledge that test results are not necessarily indicative of the characteristics of any other sample from the same or other lots, and XPE assumes no responsibility for any purpose which you choose to use test results, irrespective of whether XPE has been informed of such purpose or use. XPE will not be liable under any circumstances for any amount in excess of the cost of the Testing Services.
6. XPE Report; Limitations.
(a) XPE will provide a written report of its findings to you by email (“XPE Report”) as part of the Testing Services, subject to the following conditions and limitations:
(i) you will indemnify and hold harmless XPE, Somnio Global LLC, its officers, employees, agents, and subcontractors for any claim arising out of or relating to any unclear, erroneous, incomplete, misleading or false information provided to XPE or any incorrect or defective materials or samples provided to XPE.
(ii) You will not disclose any XPE Report to any third party, including, without limitation, any regulatory and/or governmental authority, without XPE’s prior written consent, unless required by law or court order and subject to the following terms:
(A) The XPE Report has been commissioned by Customer subject to these Terms;
(B) All rights, including copyrights and other intellectual property rights, in and to the XPE Report and all information and data contained in it, with the exception of information provided by you, are
owned by XPE, and you agree to, and does hereby, assign all such rights to XPE;
(C) The XPE Report has been prepared at your request. You only may disclose the XPE Report to a third party for the purpose for which it requested and the XPE Report was prepared, and XPE shall not
have any liability (including, without limitation, liability for negligence) to any third party to which Customer discloses the XPE Report. Any disclosure to a third party must be of the whole XPE Report;
(D) While XPE will exercise due care to ensure the information contained in its XPE Report is prepared in accordance with the Limited Warranty set forth in these Terms, neither XPE, nor any of its officers,
employees or agents make any representations or warranties, express or implied, as to the accuracy of the information contained in the XPE Report except as expressly stated in these Terms, and XPE accepts no responsibility relating to, directly or indirectly, any information contained in the XPE Report for errors or omissions (including responsibility to any person by reason of negligence); and
(E) XPE reserves to right to review, update or supplement any XPE Report, and any changes, information, or modification will be provided subject to these Terms.
(b) Your Actions. You acknowledge and agree that any action, inaction, or decision by you following receipt of the XPE Report will be solely determined by you and neither XPE nor its officers, employees, agents, or subcontractors will be liable for your action, inaction, or decision in response to or based on any XPE Report.
(c) Independent Testing Laboratory. XPE is an independent testing
laboratory and does not directly or indirectly endorse any product to be tested by XPE. Customer agrees and will not in any way imply that the test results or XPE Report is an endorsement of any product tested.
(d) Samples. Samples (with the exception of bacteriological samples, which will not be stored for any period) will be destroyed within thirty (30) days after the date of the final XPE Report. XPE will have no obligation to retain its reports and related data following delivery to you.
(e) Not Expert Witness. XPE is an independent testing laboratory and is reporting on material characteristics and not providing any conclusions or opinions, you shall not identify XPE or individuals associated with XPE as an expert witness in any manner.
7. Returns and Refunds. Except for any Testing Services designated on the Site as non-returnable, we will accept a return of the testing kit for the Testing Services for a refund of your purchase price, less the original shipping and handling costs, provided such return is made within 15 days of shipment of the testing kit to you and provided such testing kit is returned in its original condition. To return the testing kit for the Testing Services, you must call 248-574-5528 or e-mail our Returns Department at firstname.lastname@example.org for return authorization.
You are responsible for all shipping and handling charges on returned items. You bear the risk of loss during shipment. We therefore strongly recommend that you fully insure your return shipment against loss or damage and that you use a carrier that can provide you with proof of delivery for your protection.
Refunds are processed within approximately five business days of our receipt of your testing kit. Your refund will be credited back to the same payment method used to make the original purchase on the Site. WE OFFER NO REFUNDS ON ANY TESTING SERVICES DESIGNATED ON THIS SITE AS NON-RETURNABLE.
8. EXCLUSIONS OF LIABILITY.
OUR LIABILITY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY YOU FOR THE DEFECTIVE TESTING KIT OR TESTING SERVICE THAT YOU HAVE PURCHASED THROUGH THE SITE, NOR WILL WE UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY LOSS OF PRODUCTION, WORK, DATA, USE, BUSINESS, GOODWILL, REPUTATION, REVENUE OR PROFIT, ANY DIMINUTION IN VALUE, COSTS OF REPLACEMENT GOODS OR SERVICES, OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT.
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.
IN ADDITION, WE LIMIT THE DURATION AND REMEDIES OF ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO 90 DAYS AFTER THE TEST RESULTS ARE MAILED TO YOU.
SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
9. Goods Not for Resale or Export. You agree to comply with all applicable laws and regulations of the various states and of the United States including all Export Regulations, as defined below. You represent and warrant that you are buying Testing Services from the Site for your own personal or household use only, and not for resale or export. Testing Services purchased from the Site may be controlled for export purposes by export regulations, including but not limited to, the Export Administration Act of 1979 (50 U.S.C. 2401-2410), the Export Administration Regulations promulgated thereunder (15 C.F.R. 768-799), the International Traffic in Arms Regulations (22 C.F.R. 120-128 and 130) and their successor and supplemental regulations (collectively, “Export Regulations”).
10. Intellectual Property Rights. Any invention or intellectual property made, authored, discovered, conceived or reduced to practice by XPE in the performance of the Testing Services or that is derived from or based on its use of information supplied by you is and will be owned by XP. You agree that you do not and will not have or acquire any ownership of any intellectual property rights in or to the Testing Services (or any part thereof) or any other products or services made available through this Site. You agree, if requested, to assign all such rights to XPE and execute such documents requested by XPE. You also agree that you will not seek or obtain any grant, option, license or other right to or under any patent, trade secrets or other intellectual property rights now or hereafter held by XPE.
12. Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
13. Governing Law and Jurisdiction. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Michigan.
14. Dispute Resolution and Binding Arbitration.
(a) YOU AND XPE 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 TESTING SERVICES OR SERVICES THROUGH THE SITE, 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 14. (The AAA Rules are available at www.adr.orgor by calling the AAA at 1-800-778-7879.) The Federal
Arbitration Act will govern the interpretation and enforcement of this Section. The Arbitration shall take place in Oakland County, Michigan
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.
We will be responsible for paying any individual consumer's arbitration/arbitrator fees.
(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 arbitration on an individual basis. In any dispute, NEITHER YOU NOR XPE 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.
15. Assignment. You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section 15 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
16. No Waivers. The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of XPE.
17. No Third Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person other than you.
(a) To You. We may provide any notice to you under these Terms by: (i) sending a message to the e-mail address you provide or (ii) by posting to the Site. Notices sent by e-mail will be effective when we send the e-mail and notices we provide by posting will be effective upon posting. It is your responsibility to keep your e-mail address current.
(b) To Us. To give us notice under these Terms, you must contact us as follows: (i) by facsimile transmission to 734-864-5744; or (ii) by personal delivery, overnight courier or registered or certified mail to XPE at its principal place of business at 45145 West 12 Mile Road, Novi, MI 48377. We may update the facsimile number or address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
19. Severability. If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
20. Subcontract. XPE expressly reserves the right to subcontract all or part of the Testing Services under this Agreement without your consent.
Xperiential, a brand of Somnio Global LLC │ 45145 West Twelve Mile Road · Novi · MI · 48377 │ Xperiential.com
Version Date: August 2015, Copyright 2015 Somnio Global LLC