Xperiential Laboratories Terms and Conditions
TERMS AND CONDITIONS FOR THE ONLINE ORDERING OF XPRESS WATER TESTING® SERVICES.
Last Updated: February 17, 2021
These terms and conditions (these “Terms”) apply to the purchase and sale of Xpress Water Testing®, including any related report consultation, or similar interaction or service (the “Testing Services”), through www.xperiential.com and the general use of (the “Site”) by our customers and consumers (“you“). These Terms are subject to change by Xperiential Laboratories, a division of Somnio Global LLC (collectively, “Xperiential,” “we” or “us”) 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.
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU.
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 THE SITE 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 XPERIENTIAL, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE’S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
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 Xperiential 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 (888) 378-4352.
Our online store is powered by WooCommerce (https://woocommerce.com/).
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 may not include applicable 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. We may provide you with benefits such as free shipping using a logistics partner and delivery options chosen by us. If you require alternate shipping or delivery options or specific carriers, please contact our Customer Service team using the contact information below. In the event that you elect alternate shipping or delivery options, you would be responsible for those shipping and handling charges.
(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. While we take reasonable measures to ensure timely shipping and delivery, shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments or any costs, damages, and losses arising directly or indirectly from such prevention or delay.
5. Disclaimer Regarding Testing Services and Xperiential Report.
(a) Xperiential warrants that it shall perform the Testing Services in accordance with due care and generally recognized industry standards for similar services.
(b) Xperiential will provide a written report of its findings to you by e-mail (the “Xperiential Report”) as part of the Testing Services subject to the following conditions and limitations:
- The characteristics and nature of water can change over time and may be affected by such factors as local conditions, weather, and seasonal change, among other factors; testing results may be affected by these factors as well as by sampling technique. You acknowledge that test results are not necessarily indicative of the characteristics of any other sample from the same or other sampling point(s).
- Reports labeled as “Informational” are not intended to be used for compliance purposes and are intended to be informational only. Xperiential assumes no responsibility for any purpose which you choose to use test results, irrespective of whether Xperiential has been informed of such purpose or use. If you are seeking a report for compliance purposes, you must contact our Customer Service Department at (888) 378-4352.
- You will indemnify and hold harmless Xperiential, 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 Xperiential or any incorrect or defective materials or samples provided to Xperiential.
(c) Your Actions.
- You acknowledge and agree that any action, inaction, or decision by you following receipt of the Xperiential Report will be solely determined by you and neither XP nor its officers, employees, agents, or subcontractors will be liable for your action, inaction, or decision in response to or based on any Xperiential Report. Xperiential may provide written or verbal discussion or treatment recommendations as part of the Testing Services. While such recommendations or discussions are based upon literature references, scientific expertise, or other sources we deem reliable when provided, such information and recommendations may change over time and Xperiential cannot guarantee the suitability of any particular treatment system, method, or approach.
- Demographics for informational reports and any compliance reports not specifically collected by Xperiential personnel (e.g. sampling address, collected by) are obtained by reference to the information entered on the order or written on the documentation returned to the laboratory and not by Xperiential.
- Xperiential makes no representations or warranties about the accuracy of water samples that are collected by the customer or any erroneous information submitted to Xperiential while purchasing the Testing Services.
(c) Independent Testing Laboratory. Xperiential is an independent testing
laboratory and does not directly or indirectly endorse any product, brand, or company. No statement by Xperiential shall be construed as an endorsement of any product, brand, or company.
(d) Samples. Samples shall be retained in accordance with regulatory requirements and following standard operating procedures of the laboratory. Xperiential retains Xpress Water Testing® reports and supporting data in accordance with regulatory requirements and following its data retention policies.
(e) Xperiential reserves to right to review, update or supplement any Xperiential Report, and any changes, information, or modification will be provided subject to these Terms.
(f) Except for the warranty set forth in section 5(a), Xperiential makes no warranty whatsoever with respect to the Testing Services and Xperiential Report.
(g) Xperiential shall not have any liability (including, without limitation, liability for negligence) to any third party to whom you disclose the Xperiential Report;
(h) While Xperiential will exercise due care to ensure the information contained in its Xperiential Report is prepared in accordance with these Terms, neither Xperiential, 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 Xperiential Report except as expressly stated in these Terms, and Xperiential accepts no responsibility relating to, directly or indirectly, any information contained in the Xperiential Report for errors or omissions (including responsibility to any person by reason of negligence).
6. EXCLUSIONS OF LIABILITY.
TO THE EXTENT THAT SUCH LIMITATION IS PERMITTED BY STATE AND FEDERAL LAW, 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.
IN ADDITION, TO THE EXTENT THAT SUCH LIMITATION IS PERMITTED BY STATE AND FEDERAL LAW, 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 SENT TO YOU.
7. Returns and Refunds.
Except for any Testing Services designated on the Site as non-refundable or non-returnable, we will accept a refund request for the Testing Services for a refund of your purchase price, provided such refund request is made within 30 days of your order and before you have shipped the sample back to us. To request a refund for the Testing Services, you must call (888) 378-4352 or e-mail our Customer Service Department at email@example.com for refund 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 refund request. 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 OR NON-REFUNDABLE.
8. Goods Not for 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, or for resale only, and not for 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. 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.
11. 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.
12. Dispute Resolution and Binding Arbitration.
(a) YOU AND XPERIENTIAL 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.WITH THE EXCEPTION OF SECTION 12
(c), 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, SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
(b) The arbitration shall 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 shall govern the interpretation and enforcement of this Section. The Arbitration shall take place in Oakland County, Michigan.
The arbitrator shall 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 shall be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) shall be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. Each party shall bear its own arbitration/arbitrator fees.
(c) You may elect to pursue your claim in small-claims court rather than arbitration only if you provide us with written notice in accordance with Section 16 of these Terms of your intention do so within 60 days of your purchase of the Testing Services. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy and may not be consolidated by claims of other customers.
(d) You agree to arbitration on an individual basis. In any dispute, NEITHER YOU NOR XPERIENTIAL 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 shall be severed and the remaining arbitration terms shall be enforced.
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 13 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
14. 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 Xperiential.
15. 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 Xperiential 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 on the day delivery to Xperiential is complete.
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.
Xperiential expressly reserves the right to subcontract all or part of the Testing Services under this Agreement without your consent.
19. Entire Agreement.
Xperiential Laboratories, a brand of Somnio Global LLC │ 45145 West Twelve Mile Road · Novi · MI · 48377 │ xperiential.com
Version Date: February 2021, Copyright 2021 Somnio Global LLC