Terms & Conditions of Sale (Resellers)
Last revised: May 18, 2017
These terms and conditions of sale (“Terms of Sale”) govern the sale by Chicago Bar Company LLC (d/b/a RXBAR), an Illinois limited liability company (“Company”) of products through the www.rxbar.com website (collectively, the “Site”) to purchasers for resale.
1. Binding Arbitration.These Terms of Sale provide that all disputes between you and Company that in any way relate to these Terms of Sale or your use of the Site will be resolved by BINDING ARBITRATION. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) to assert or defend your rights under these Terms of Sale (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Section below entitled Dispute Resolution; Arbitration Agreement for the details regarding your agreement to arbitrate any disputes with Company.
2. Governing Provisions.
3. Invoices; Payment.
1. Payment is due upon ordering the products. Company may withhold or cancel scheduled shipments at any time that any portion of Purchaser’s payment or account with Company is overdue.
4. Delivery, Claims and Force Majeure.
1. Delivery of goods to a carrier at Company’s loading point shall constitute delivery to Purchaser. Regardless of shipping terms or freight payment, all risk of loss or damage in transit shall be borne by Purchaser. Claims for shortages or other errors in delivery must be made immediately after receipt of a shipment. Company shall not be liable for any damage as a result of any delay or failure to deliver due to any cause beyond Company’s control, including (but not limited to) any act of God, act of Purchaser, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, riot, act of terrorism, delay in transportation or delays by Company’s suppliers.
5. Taxes and Other Charges.
Any tax, fee or charge of any nature whatsoever imposed by any governmental authority on or measured by the transaction between Company and Purchaser, excluding business income or franchise taxes imposed on Company, shall be paid by Purchaser in addition to the prices quoted or invoiced.
1. Company may, without notice or other obligation to Purchaser, at any time make such changes in its products as Company deems appropriate. Company may also at any time, upon notice but otherwise without obligation to Purchaser, discontinue offering of any product.
1. Company represents and warrants that the products sold through its Site will of good and merchantable quality and free from defects. Company shall, in its sole option, replace or refund the purchase price of any defective products. REPLACEMENT OR REFUND SHALL BE COMPANY’S SOLE LIABILITY AND PURCHASER’S SOLE REMEDY WITH REGARD TO DEFECTIVE PRODUCTS.
All returns shall be made in accordance with the Return/Guarantee Policy.
9. Compliance with Law.
Purchaser shall ensure that all products purchased by Purchaser from Company are sold in compliance with all laws, statutes, regulations, judicial or governmental restrictions, codes and ordinances, whether local, state or national. Purchaser shall immediately provide to Seller a copy of all communications received from or sent to any regulatory body that pertains to the products purchased by Purchaser from Company. Purchaser shall be responsible for, and shall defend and hold Company and its affiliates harmless from, any claims made for products purchased by Company and resold in violation of this Section 9.
10. Consequential Damages and Other Liability.
1. COMPANY SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR CONTINGENT DAMAGES WHATSOEVER, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER THEORIES OF LAW, WITH RESPECT TO PRODUCTS SOLD BY COMPANY, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. Without limiting the generality of the foregoing, Company shall have no liability for penalties, special or punitive damages, damage for lost profits or revenues, loss of use of materials, cost of substitute goods, or for any other types of economic loss.
11. Severability Clause.
1. If any provision of these Terms of Sale shall for any reason be held unenforceable, such provision shall be deemed deleted and replaced by an enforceable provision which, insofar as possible, achieves the same economic and other benefits for the parties as the severed provision was intended to achieve, and the remaining provisions of these Terms of Sale shall continue in full force and effect.
12. Dispute Resolution; Arbitration Agreement.
1. We will try work in good faith to resolve any issue you have with the Site, including products ordered or purchased through the Site, if you bring that issue to the attention of our customer service department. However, we realize that there may be rare cases where we may not be able to resolve an issue to a customer's satisfaction.
You and Company agree that any dispute, claim or controversy arising out of or relating in any way to these Terms of Sale or your use of the Site, including products ordered or purchased through the Site, shall be determined by binding arbitration instead of in courts of general jurisdiction. Arbitration is more informal than bringing a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and is subject to very limited review by courts. Arbitration allows for more limited discovery than in court, however, we agree to cooperate with each other to agree to reasonable discovery in light of the issues involved and amount of the claim. Arbitrators can award the same damages and relief that a court can award, but in so doing, the arbitrator shall apply substantive law regarding damages as if the matter had been brought in court, including without limitation, the law on punitive damages as applied by the United States Supreme Court. You agree that, by agreeing to these Terms of Sale, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Company are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms of Sale and any other contractual relationship between you and Company.
If you desire to assert a claim against Company, and you therefore elect to seek arbitration, you must first send to Company, by certified mail, a written notice of your claim ("Notice"). The Notice to Company should be addressed to: 1552 W. Carroll Ave., Suite 202, Chicago, IL 60607 ("Notice Address"). If Company desires to assert a claim against you and therefore elects to seek arbitration, it will send, by certified mail, a written Notice to the most recent address we have on file or otherwise in our records for you. A Notice, whether sent by you or by Company, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If Company and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Company may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by Company or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration from the American Arbitration Association at www.adr.org. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms of Sale, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by requesting them from us by writing to us at the Notice Address. The arbitrator is bound by the terms of these Terms of Sale. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of these Terms of Sale, including this arbitration agreement. Unless Company and you agree otherwise, any arbitration hearings will take place in Chicago, Illinois. If your claim is for US $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of Company’s last written settlement offer made before an arbitrator was selected (or if Company did not make a settlement offer before an arbitrator was selected), then Company will pay you the amount of the award or US $1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Each party shall pay for its own costs and attorneys' fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys' fees, or if there is a written agreement providing for payment or recovery attorneys’ fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.
YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.
If this Agreement to Arbitrate provision is found to be unenforceable, then (a) the entirety of this arbitration provision shall be null and void, but the remaining provisions of these Terms of Sale shall remain in full force and effect; and (b) exclusive jurisdiction and venue for any claims will be in state or federal courts located in and for Chicago, Illinois.