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Applicability. These TERMS AND CONDITIONS FOR THE SALE OF GOODS (these “Terms”) govern the sale, of those goods set forth on the Sales Confirmation (“Goods”), to the buyer set forth in the Sales Confirmation (“Buyer”), by BALANCED HEALTH BOTANICALS, LLC (or any entity set forth in the Sales Confirmation which is controlled or owned by BALANCED HEALTH BOTANICALS, LLC, including, without limitation, CBDISTILLERY, LLC; BOTA HOLDINGS LLC; and BALANCED HEALTH BOTANICALS INTERNATIONAL LIMITED) (“Seller”). The accompanying confirmation of sale by Seller (“Sales Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, whether written or oral.
Delivery; Shipping. Delivery of the Goods to Buyer shall be made to the FOB Shipping Point (the “Shipping Point”) within a reasonable time after the receipt of Buyer’s purchase order (“PO”).
Quantity. The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery, unless Buyer provides conclusive evidence proving the contrary. Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within 5 business days of the date when the Goods would, in the ordinary course of events, have been received.
Title and Risk of Loss. Title and risk of loss passes to Buyer at the Shipping Point.
No Resale. Buyer shall not resell Goods.
Limitation of Liability. (a) IN NO EVENT SHALL SELLER BE LIABLE FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATED TO THE GOODS. (b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR THE GOODS EXCEED THE TOTAL AMOUNT PAID TO SELLER BY BUYER FOR THE GOODS SOLD HEREUNDER.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer, upon any other person or entity, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
Governing Law; Dispute Resolution. This Agreement and all claims or causes of action arising out of or relating to this Agreement will be governed by and construed in accordance with the laws of the State of Colorado, USA, including Colorado’s Uniform Commercial Code, without regard to the chosen jurisdiction’s choice-of-law principles. Any dispute arising under this Agreement shall be resolved through binding arbitration according to the Rules of the American Arbitration Association (“Arbitrator”) under its Commercial Arbitration Rules and Mediation Procedures; provided, however, the Parties shall have the right to invoke self-help remedies (such as set-off), and/or request ancillary or provisional judicial remedies (such as specific performance, injunction, and restraining order), before, during or after any arbitration. Venue for any such ancillary and/or provisional judicial remedy shall reside exclusively in the state or federal courts having jurisdiction in or for Arapahoe County, Colorado, USA. Use of self-help or ancillary and/or provisional judicial remedies shall not operate as a waiver of either Party’s right to compel arbitration. Any ancillary or provisional judicial remedy which would be available from a court at law shall be available from the Arbitrator. The seat or place of arbitration shall be Denver, Colorado, USA. The arbitration shall be conducted and the award shall be rendered in the English language. Except as may be required by law, no Party and no Arbitrator may disclose the existence, content or results of any arbitration without the prior written consent of both Parties, except to the extent necessary to protect or pursue a legal right. This Section shall survive the expiration or earlier termination of this Agreement. In the event suit or action is brought to enforce or interpret any of the provisions of this Agreement, or that arise out of or relate to this Agreement, the Parties agree to reimburse the prevailing Party’s reasonable attorney fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing Party may be entitled. The determination of who is the prevailing Party and the amount of reasonable attorney fees to be paid to the prevailing Party shall be decided by agreement of the Parties, or, if the Parties cannot reach agreement, then by the Arbitrator
Notice. Any notice required or permitted by this Agreement shall be effective if delivered in writing either personally to the Party to be notified or deposited in the United States mail, postage prepaid and return receipt requested, addressed to the Party at the address set forth in the Sales Confirmation (or to such other address as is specified by the party by like notice).
Severability. If any part of this Agreement is held to be unenforceable in a court of law, such provision will be severed, and the remainder of this Agreement will remain in full force and effect.
Amendment. These Terms are subject to SELLER’S TERMS AND CONDITIONS FOR THE SALE OF GOODS set forth on Seller’s website at https://balancedhealthbotanicals.com/terms-and-conditions (as modified from time to time, the “Online Terms”). To the extent the Online Terms differ from these Terms, these Terms shall be deemed amended and restated by the Online Terms, which shall be deemed incorporated herein by this reference. These Terms may be amended in a writing signed by the parties, or unilaterally by Seller modifying the Online Terms. The parties intend to be bound by these Terms as amended in accordance with this Section
Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original, but all of which, taken together, will constitute one and the same agreement. Execution by facsimile, by scanned attachments, or by electronic signature has the same force and effect as an original.
Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.
Returns. The sale of Goods by Seller to Buyer is subject to Seller’s Return Policy, set forth at https://www.thecbdistillery.com/return-policy/, which may be amended from time to time at the sole discretion of Seller.