Elderberry Syrup, Tea and/or Kit Subscriptions
By checking the Terms & Conditions box at checkout, you are acknowledging that you are subscribing to receive your order on a recurring basis. Subscriptions may be edited or canceled at any time.
Wholesale Membership (only applies if you are purchasing the 1 Year Wholesale Membership)
The terms below will govern the sale of merchandise relating to the Sale of Elderberry Syrup and related products (“Merchandise”) by The Elderberry Co. LLC (“Seller”) to _______ (“Customer”), for sales in connection with wholesale of Merchandise expected to commence on the date Customer purchased a Wholesale Membership, and shall automatically renew every one (1) year thereafter (such period, the “Term”), unless terminated by the Seller or Customer.
- Prices and Payment.
- Prices. Merchandise prices and minimum order quantities of Merchandise are set forth on the Seller’s Online Store theelderberryco.com and the specific account created for the Customer to receive wholesale discounted tiered pricing. Seller may change wholesale prices at their discretion and will communicate any price changes to the customer.
- Payment. Customer will be charged for Merchandise orders at the time of purchase through the online payment processors used by the Seller’s online store.
- Sales Tax. The Seller will not be charging sales tax to the Customer and it is understood that the customer will be responsible for filing and paying any sales tax that applies per their respective state law.
- Delivery; Title; and Risk of Loss. The Customer shall receive the Merchandise from the Seller via mail carrier (USPS or UPS) within 5 business days of placing the order. Title to and risk of loss of the Merchandise will pass to the Customer upon such delivery by the Any stated delivery dates are approximate. The Seller will not be liable and Customer hereby waives and claims for any losses, damages, penalties, or expenses for failure to meet any delivery date.
- Returns. We will only accept returns within one week of delivery. In order to initiate a return, Customer must email Seller within seven (7) days of delivery to request a return and state the reason for the return. Upon confirmation by the Seller that the requested return is proper, the returns will be credited to Customer’s account or replaced. No refunds for cash will be made.
- Disclaimer of Warranty; Due Diligence The Merchandise are being sold “as is,” and the Seller disclaims all warranties of quality, whether express or implied, including the warranties of merchantability and fitness for particular purpose. The Customer acknowledges that it has not been induced by any statements or representations of any person with respect to the quality or condition of the Merchandise and that no such statements or representations have been made. The Customer acknowledges that it has relied solely on the investigations, examinations, and inspections as the Customer has chosen to make and that the Seller has afforded the Customer the opportunity for full and complete investigations, examinations, and inspections. Customer further acknowledges and agrees that no Merchandise will be sold, donated or otherwise provided to an end user any later than the “Best By Date” as listed on the Merchandise.
- 4.1 Limitation of Liability. THE SELLER WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS IT CONTEMPLATES (WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, OR OTHER FORM OF ACTION) AND IRRESPECTIVE OF WHETHER THE SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGE. IN NO EVENT WILL THE SELLER’S LIABILITY EXCEED THE PRICE THE CUSTOMER PAID TO THE SELLER FOR THE SPECIFIC MERCHANDISE PROVIDED BY THE SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION.
- Indemnification. Customer shall indemnify, defend and hold the Seller harmless against any loss of damage (including attorney’s fees and costs of litigation) caused by the Customer’s negligent act or omission, theft by the Customer’s employees, or the negligent or intentional acts or omissions of the Customer’s agents or emp The Customer shall defend any suit against the Seller alleging personal injury or property damage arising out of the shipping of the Merchandise or out of the acts of the Customer’s employees, and any suit alleging bodily injury, sickness, or disease arising out of the consumption of the Merchandise shipped or delivered by the Seller should any Merchandise be sold any later than the Best By Date as listed on the Merchandise, and Customer shall be liable for any damages agreed to by the parties or awarded as a result of such litigation and/or claims.
Seller shall promptly notify the Customer in writing of any claims against the Customer or the Seller and, in the event a suit is filed, shall promptly forward to the Customer all papers in connection therewith. The Customer shall not incur any expense or make any settlement without the Seller’s consent. However, if the Customer refuses or neglects to defend any such suit, the Seller may defend, adjust, or settle any such claim, and the costs of such defense, adjustment, or settlement, including reasonable attorney’s fees, shall be charged to the Customer.
- Non-Disclosure of Confidential Information.
During the course of the relationship between Seller and Customer, Customer may have access to confidential information pertaining to the recipe of the contents of the Merchandise. Customer recognizes that such recipes shall be considered confidential information which Seller wishes not to be made public and will treat such Confidential Information as follows:
Confidential Information is acknowledged by both Parties to be proprietary information and will be maintained in a confidential manner by the Receiving Party. The Receiving Party agrees not to use, directly or indirectly, in whole or in part, any Confidential Information of the Disclosing Party for any purpose except to evaluate and engage in the development, production and use of the Invention and any discussions related thereto. The Receiving Party agrees to use its best efforts to prevent and protect the Confidential Information, or any part thereof, from disclosure to any person other than its Representatives. Upon receipt of any Confidential Information, the Receiving Party agrees that it shall, at all times:
- Receive and maintain the Confidential Information in confidence;
- Not reproduce the Confidential Information or any part thereof without the express written consent of the Disclosing Party;
- Not, directly or indirectly, make known, divulge, publish or communicate the Confidential Information to any person, firm or corporation without the express written consent of Disclosing Party;
- Limit the internal dissemination of the Confidential Information and the internal disclosure of the Confidential Information received from the Disclosing Party to those officers and employees, if any, (“Representatives”) of the Receiving Party who have a need to know and an obligation to protect it and additionally agrees to;
- Inform each of its Representatives receiving such Confidential
Information of the confidential nature of the information and of this Agreement;
- Direct such Representatives to treat the Confidential Information in confidence and not to use it other than in connection with the Invention; and
- Be responsible for any improper use of the Confidential Information by its Representatives (including, without limitation, its Representatives who, subsequent to the date of disclosure of Confidential Information hereunder, become its former Representatives).
- Not use or utilize the Confidential Information without the express written consent of Disclosing Party;
- Not use the Confidential Information or any part thereof as a basis for the design or creation of any item similar to the Merchandise provided by Seller as embodied in the Confidential Information unless expressly authorized in writing by Disclosing Party; and
(h) Utilize the best efforts possible to protect and safeguard the Confidential Information from loss, theft, destruction, or the like, and to prevent the Confidential Information from falling into the public domain or into the possession of unauthorized persons.
- Buyer-Seller Relationship. The relationship created by this agreement is solely a buyer-seller relationshi This agreement does not create a joint venture, partnership or otherwise make either party the employee, agent, or legal representative of the other for any purpose whatsoever.
- Governing Law; Dispute Resolution. This agreement shall be governed by the laws of the State of Indiana. Any dispute arising from this agreement shall first be addressed by the parties through informal dispute resolution procedures conducted in good faith If the parties do not resolve the dispute within thirty days of the date of the first dispute resolution meeting, the parties agree to mediate the dispute in a mutually agreed-upon place with a mutually agreed- upon mediator, the costs of which shall be borne equally by the parties. In the event the dispute is not resolved through mediation, the dispute shall be settled by binding arbitration before a single arbitrator in New Albany, Indiana, in accordance of the rules of the American Arbitration Association, and the parties agree that judgment upon the award rendered by the arbitrator shall be entered in a court of competent jurisdiction sitting in New Albany, Indiana.
- Attorney Fees. The Customer shall pay all costs of collection incurred by Seller, including its attorney’s fees, if any claim arising from a default of this Agreement is referred to an attorney for collection, whether or not payment is obtained before entry of judgment