Last Updated: Jaunary 1st 2024
BY BUYING, ACCESSING, OR OTHERWISE USING ANY OF OUR GOODS OR SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT BUY, ACCEPT AN ORDER FORM, ACCEPT, ACCESS, OR OTHERWISE USE ANY OF OUR GOODS OR SERVICES.
1. Applicability.
(a) These terms and conditions of sale (these "Terms") are the only terms that govern the sale of goods ("Goods") by NES Health, LLC (DBA Energy4Life and hereafter “E4L”) ("Seller") to the buyer ("Buyer"). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. These Terms may change from time to time. Users will be notified of any changes upon login to the Energy4Life Portal and will be required to accept them prior to accessing the Portal.
(b) The use of Seller’s Energy4Life Portal is governed by additional terms contained in policies (the “Portal Policies”). Seller will share the Portal Policies with Buyer, and they are a part of this Agreement. Periodically, Seller may update or replace the terms of the Portal Policies. You will be notified electronically of any changes.
(c) If accompanied by the confirmation of sale order (the "Sales Order Confirmation"), these Terms, and the Portal Policies (the Terms, Sales Order Confirmation, and the Portal Policies are, collectively, referred to as this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer's general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms.
2. Delivery.
(a) The Goods will be delivered within a reasonable time after the receipt of Buyer's purchase order and receipt of a Sales Order Confirmation signed by the Buyer, subject to availability of finished Goods. Seller shall not be liable for any delays, loss, or damage in transit.
(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to Buyer’s location (the "Delivery Point") using Seller's standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within 5 days of Seller's written notice that the Goods have been delivered to the Delivery Point.
(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. 2
(d) If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller's notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage, and insurance).
3. Non-Delivery.
(a) 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 can provide conclusive evidence proving the contrary.
(b) The 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 3 days of the date when the Goods would in the ordinary course of events have been received.
(c) Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
(d) Shipping Terms. Seller shall make delivery in accordance with the terms on the face of the Sales Order Confirmation, or as provided for when the order is placed on the E4L Portal.
(e) Title and Risk of Loss. Title and risk of loss pass to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Florida Uniform Commercial Code.
(f) Nontransferable. Buyer understands that the Bioenergetics Wellness System (“BWS”) license may not be transferred to any other party without Seller’s express written permission; that Buyer may only transfer this license to a qualified health professional as verified by Seller, should Buyer receive this permission; that Buyer will be required to pay the then-current “license transfer fee” should Buyer receive this permission; and that Buyer may not advertise this license publicly, either online or offline, nor knowingly contact any of Seller’s existing customers or leads in an attempt to sell or otherwise transfer this license. Furthermore, any transferee of this license will be required to sign an Agreement with Energy4Life before receiving access to BWS and must complete certification training before receiving certain benefits of the system; Buyer agrees to disclose these points to any potential licensee
before any purchase or transfer of license occurs. Any breach of this paragraph forever revokes permission to transfer this license. The liability of transferring this license without permission, transferring to disallowed parties as described above, transferring without paying a license transfer fee, or transferring without proper disclosure to transferee falls entirely on Seller.
(g) Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
4. Inspection and Rejection of Nonconforming Goods.
(a) Buyer shall inspect the Goods within 5 days of receipt ("Inspection Period"). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. "Nonconforming Goods" means only the following: (i) product shipped is different than identified in Buyer's purchase order; or (ii) product's label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. If requested by Seller, Buyer shall ship, at Seller’s expense and risk of loss, the Nonconforming Goods to Seller's facility.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 8(b) are Buyer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 8(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
5. Price.
(a) Buyer shall purchase the Goods from Seller at the price(s) (the "Price(s)") stated in the Sales Order Confirmation or as listed on the E4L Portal.
(b) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; if Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personnel, or real or personal property or other assets.
6. Payment Terms.
(a) Buyer shall pay all invoiced amounts due to Seller as stated in the Sales Order Confirmation, or as stated on the E4L Portal at time of purchase.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for 7 days following written notice thereof.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller's breach, bankruptcy, or otherwise.
7. Intellectual Property.
(a) "Trade Secrets" means all inventions, discoveries, trade secrets, business and technical information, and know-how, databases, data collections, patent disclosures, and other confidential and proprietary information and all rights therein.
(b) "Law" means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order, or other requirement or rule of law of any Governmental Authority.
(c) "Intellectual Property Rights" means all industrial and other intellectual property rights comprising or relating to (i) Patents; (ii) Trademarks; (iii) internet domain names, whether or not Trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, websites, and URLs; (iv) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software, and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (v) Trade Secrets; and (vi) all industrial and other intellectual property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the Laws of any jurisdiction throughout in any part of the world.
(d) Buyer acknowledges and agrees that:
(i) any and all Seller's Intellectual Property Rights are the sole and exclusive property of Seller or its licensors.
(ii) Buyer shall not acquire any ownership interest in any of Seller's Intellectual Property Rights under this Agreement; any goodwill derived from the use by Buyer of Seller's Intellectual Property Rights inures to the benefit of Seller or its licensors, as the case may be; 5
(iii) if Buyer acquires any Intellectual Property Rights, rights in or relating to any Goods (including any rights in any Trademarks, derivative works, or patent improvements relating thereto) by operation of Law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Seller or its licensors, as the case may be, without further action by either of the Parties; and
(iv) Buyer shall use Seller's Intellectual Property Rights solely for purposes of using the Goods under this Agreement and only in accordance with this Agreement and the instructions of Seller.
(e) Buyer shall not, directly or indirectly, disassemble, decompile, reverse engineer, decode, adapt, modify, or analyze the construction, physical or otherwise, of any of Seller’s Goods, products, software, or platforms for any purpose.
(f) Any attempt to make copies of Energy4Life’s InfoceuticalsTM by any means whatsoever, or to change the nature or structure of the Infoceuticals by dilution or addition using any other substance(s), or to use such altered or purported Infoceuticals – whether called “Infoceuticals” or any other name – is strictly prohibited. Any attempt to use or sell any product in a way that could cause a user, buyer, or any other person to think they were original Infoceuticals (including the word “Infoceutical” being used with the product) is strictly prohibited and will be in breach of trademark and liable to prosecution for such breach in addition to legal action for ‘passing off’ or unfair competition.
8. Limited Warranty.
(a) Seller warrants to Buyer, for a period of 1 year from the date of purchase of the Goods ("Warranty Period"), that such Goods will materially conform to the specifications set forth in Seller's materials in effect as of the date of manufacture and will be free from material defects in material and workmanship.
(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 12(a), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(c) Products manufactured by a third party ("Third Party Product") may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Goods. Third-Party Products are not covered by the warranty in Section 12(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(d) The Seller shall not be liable for a breach of the warranty set forth in section 8(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within 14 days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller's place of business at Seller's cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer's claim that the Goods are defective.
(e) The Seller shall not be liable for a breach of the warranty set forth in section 8(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
(f) Subject to Section 12(d) and Section 12(e) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either repair or replace such Goods (or the defective part).
(g) THE REMEDIES SET FORTH IN SECTION 12(f) SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 12(a).
9. Limitation of Liability.
(a) The BWS assessment software is a bioenergetic wellness device that only provides information about and recommendations for the body-field. It is not a medical diagnostic or treatment device; it does not make repeatable and/or biochemical assessments, as it is wholly designed to assess a field in constant flux. BWS is intended for use only by health practitioners or those becoming the same who have completed suitable professional training, and Buyer warrants and represents that they have had such training. While BWS is not a diagnostic device, it is strongly recommended to have studied anatomy and physiology to understand assessment results and bioenergetic support options for clients. Practitioners must rely on their independent professional judgment to determine whether and under what circumstances BWS may be an appropriate tool in their practice. Seller’s Infoceuticals™ are not medicines and are only bioenergetic in nature. I have read, or will read prior to its first use, all BWS instructions. BUYER IS SOLELY RESPONSIBLE FOR ANY ADVICE, INFORMATION, OR RECOMMENDATIONS THAT BUYER MAY PROVIDE TO THIRD PARTIES, AND SELLER ACCEPTS NO LIABILITY WITH RESPECT THERETO.
(b) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(c) IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
(d) The limitation of liability set forth in Section 13(c) above shall not apply to liability resulting from Seller's willful misconduct.
(e) Indemnification. Subject to the terms and conditions of this Agreement, Buyer (as "Indemnifying Party") shall indemnify, defend and hold harmless Seller and its representatives, members, officers, directors, employees, agents, parent, affiliates, successors and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party (collectively, "Losses"), arising out of or resulting from any claim of a party or third party alleging:
(f) material breach or non-fulfillment of any material representation, warranty, or covenant under this Agreement by Indemnifying Party;
(g) any negligent or more culpable act or omission of Indemnifying Party or its personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;
(h) any bodily injury, death of any person or damage to real or tangible personal property caused by the willful or negligent acts or omissions of Indemnifying Party or its personnel;
(i) any bodily injury, death of any person or damage to real or tangible personal property caused by Indemnifying Party’s or its personnel’s use of the Goods; or
(j) any failure by Indemnifying Party or its personnel to materially comply with any applicable Laws. Notwithstanding anything to the contrary in this Agreement, this Section does not apply to any claim (direct or indirect) for which a sole or exclusive remedy is provided for under another section of this Agreement.
10. Training. Seller will provide BWS training through digital modules, videos, and/or live practicum events. Buyer is expected to complete, at a minimum, the training needed for BWS certification within 90 days of the date of the Sales Order Confirmation to ensure correct use of the BWS, to avoid making inaccurate statements about it, and to be more aware of how Buyer can build a successful business around it. Buyer takes full responsibility for following through on this learning. Dates and locations of live training will be posted by Seller on www.e4l.com. Seller reserves the right to change the content and duration of both the live and online training at any time.
11. Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any permissible resale of the Goods by Buyer. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
12. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for 7 days after Buyer's receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
13. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
14. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
15. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, hurricanes, tornados, epidemics, pandemics, or other disasters or catastrophes; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 7 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of 14 consecutive days following written notice given by it under this Section 20, the other party may thereafter terminate this Agreement upon 7 days' written notice.
16. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
17. Relationship of the Parties.
(a) The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, franchise, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
(b) Buyer agrees not to engage in any advertising, promotion, or other communication of any kind to the public that falsely or deceptively states, suggests, or implies any connection or affiliation by Buyer with Seller or any sponsorship or approval by Seller to Buyer and Buyer’s services or business. Buyer agrees to make it clear that Buyer is an independent provider of their products and services. 10
18. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto 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.
19. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Florida. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Florida in each case located in the County of Hillsborough, Florida, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
21. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
22. CLASS ACTION WAIVER. THE PARTIES AGREE TO LITIGATE SOLELY ON AN INDIVIDUAL BASIS, AND THAT THIS AGREEMENT DOES NOT PERMIT CLASS ACTIONS OR ANY CLAIMS BROUGHT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE PROCEEDING. THE TRIBUNAL MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
23. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (both with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
24. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the court may modify this Agreement to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
25. 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 including, but not limited to, the following provisions: Compliance with Laws, Confidential Information Governing Law, Indemnification, Intellectual Property, Submission to Jurisdiction, and Survival.
PORTAL POLICIES
- The Energy4Life Portal (hereafter “Portal”) is how E4L practitioners, clients, and other users (collectively “Users”) access the Energy4Life software (“BWS”) and certain other features. Access to the Portal, including access to BWS and all other features, requires acceptance of these Portal Policies. These Policies may change from time to time. Users will be notified of any changes upon login and will be required to accept them prior to accessing the Portal.
- BWS is considered an essential feature of the Portal that will remain available to practitioners who have purchased a license to access it. BWS, however, may be updated from time to time. Updates may include, without limitation, the appearance of, function of, test items on, or help files on a screen; discontinued support for screens that become considered “legacy” screens; how scanning is done; and more. Energy4Life is not liable for any impact these changes may have.
- All other features of the Portal are value-added features, and they may be enhanced, changed, or removed at the sole discretion of Energy4Life.
- Energy4Life shall make all reasonable efforts to provide continual online access to the software, but is not liable, financially, or otherwise, for any “down time” that may be caused by internet or hosting outages, software errors, or any other cause. Energy4Life shall make its best effort to restore any outages as quickly as possible, as far as it is able.
- The purchase of a BWS license allows practitioners to also purchase and resell certain products by Energy4Life or, potentially, by partner brands. Product selection, wholesale pricing, and any other detail regarding if and how they may sell these may change from time to time at the sole discretion of E4L. If practitioners choose to sell Infoceuticals to those who are not their private clients, they will only sell those intended by the company for consumers to buy without the guidance of a health professional; these are currently known as “Feel Good” Infoceuticals but may be otherwise designated in the future. Practitioners will not sell any Infoceuticals online to the public (i.e., not their private clients) if they are intended to only be sold by health professionals to their direct clients. Furthermore, where allowed by law, practitioners will not degrade the brand by publicly
- Partner product below Minimum Advertised Pricing (MAP). They may sell below MAP only in private settings to their own clients or customers. Energy4Life reserves the right to stop providing practitioners with product to sell should they violate this Paragraph or any portion of these Policies.
- Through the Portal, Energy4Life may provide practitioners with a Shop through which they may sell its products, partner products, and/or their own services. Energy4Life reserves the right to charge a service fee for some or all products or services sold through the Portal. Energy4Life also reserves the right to change if and how it provides this Shop feature.
- Practitioner Locator: Energy4Life currently offers a practitioner locator for helping to connect prospective customers with E4L practitioners. As with other features of the Energy4Life Portal, this is a value-added feature that Energy4Life may choose to enhance, change, or remove at any time. Inclusion on this locator is based on Energy4Life criteria that may include training requirements, minimum numbers of scans and/or purchases, and/or other criteria solely determined by Energy4Life. At its own discretion, Energy4Life may remove any practitioner from this locator if it deems that prospect inquiries are not being answered in a timely manner; prospects are being directed away from Energy4Life products or services; practitioner is disparaging Energy4Life and/or its products or services; or for any other reason it may have for not featuring a practitioner.