Terms Of Sale
These terms apply to all consumer purchases of Peak Health Center (PHC) products.
PHC’S PRODUCT STATEMENTS HAVE NOT BEEN EVALUATED BY THE FOOD AND DRUG ADMINISTRATION (FDA). PHC’S PRODUCTS ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE. SEE YOUR PHYSICIAN BEFORE COMMENCING ANY FORM OF TREATMENT AND CONTACT EMERGENCY SERVICES (911/999) IN CASE OF ANY HEALTH EMERGENCY.
PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT ORDER/KEEP YOUR PRODUCT.
These Terms of Sale (“Agreement”) apply to your purchase of products, software, and/or services and support (together, “Product”) sold in the United States by PHC. You agree to these terms by placing your Product order. If you have already placed your order and no longer want to be bound to this Agreement. then you must either promptly cancel your order or return your purchase under PHC’s Return Policy. Please act promptly and note these options may carry restocking or other fees.
This is a binding agreement. As an Agreement between PHC and yourself, it may NOT be altered, supplemented or amended by any other document unless the new document is signed by both you and PHC. In addition to this document, the terms contained within the other PHC documents referenced in this Agreement, including PHC’s License Agreements, Return Policy, and Consumer Warranties may apply to your purchase.
Orders, Pricing and Payments. PHC strives to communicate accurate pricing and product information but will not be held responsible for any pricing, typographical, or other errors in such communications. Your order may be cancelled by PHC, in PHC’s sole discretion. Unless otherwise agreed to by PHC, payment must be received by PHC prior to our acceptance of an order. PHC may process payment for and ship parts of an order separately.
Shipping. Product title passes to you when the Product is shipped. You have 10 days from the shipping date (or 5 days from receipt, whichever is longer) to notify PHC of any missing, wrong, or damaged portion of your purchase or PHC cannot be held responsible for these issues. Unless you provide PHC with a valid and correct tax exemption certificate applicable to your purchase of Product and the Product ship-to location, you are responsible for sales and other taxes associated with the order. You are responsible for inspecting the package(s) upon delivery and must note any visible damage on the proof of delivery (POD) or other delivery receipt you may be requested to sign. PHC will not be responsible for any visible shipping damages not noted on the delivery receipt.
Warranties. THE LIMITED WARRANTIES APPLICABLE TO PHC-BRANDED PRODUCTS CAN BE FOUND AT PEAKHEALTH.CENTER/WARRANTY OR IN THE DOCUMENTATION PHC PROVIDES WITH PHC-BRANDED PRODUCT. PHC MAKES NO OTHER WARRANTIES FOR PHC-BRANDED PRODUCT, AND MAKES NO WARRANTIES WHATSOEVER FOR SERVICE, SOFTWARE, MAINTENANCE OR SUPPORT OR FOR NON-PHC BRANDED PRODUCT. SUCH PRODUCT, SOFTWARE, SERVICE, MAINTENANCE OR SUPPORT IS PROVIDED BY PHC “AS IS” AND ANY THIRD-PARTY WARRANTIES, PRODUCTS, SOFTWARE, SERVICES, MAINTENANCE OR SUPPORT ARE PROVIDED BY THE ORIGINAL MANUFACTURER OR SUPPLIER, NOT BY PHC. SOME STATES DO NOT ALLOW LIMITATIONS OF IMPLIED WARRANTIES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU.
Software. Any software part of your purchase will have its own license agreement, including any open source provisions. If any software provided by PHC does not have its own license agreement, then PHC grants you a personal, non-exclusive license to access and use the software during the term or services and only as necessary for you to enjoy the benefits of the service.
Service. In addition to these Terms of Sale, PHC and/or your third-party service provider may provide service and support to you under an applicable service agreement delivered to you. If you have purchased a service offering, please review the service agreement carefully as it contains important rights and limitations.
Receiving Warranty or Service Support. IT IS YOUR RESPONSIBILITY TO BACK UP ALL EXISTING DATA, SOFTWARE AND PROGRAMS BEFORE RECEIVING SERVICES OR SUPPORT (INCLUDING TELEPHONE SUPPORT). PHC AND/OR YOUR THIRD-PARTY SERVICE PROVIDER WILL HAVE NO LIABILITY FOR LOSS OR RECOVERY OF DATA OR PROGRAMS, OR FOR LOSS OF USE OF SYSTEM(S) ARISING OUT OF THE SERVICES OR SUPPORT OR ANY ACT OR OMISSION, INCLUDING NEGLIGENCE, BY PHC OR YOUR-THIRD-PARTY SERVICE PROVIDER. Parts used in repairing or servicing Product(s) may be new, equivalent-to-new, or reconditioned.
Telephone Communications. Telephone communications with us, including calls with any of our agents or independent contractors, are routinely monitored and/or recorded. You expressly consent, on behalf of yourself and other users of your phone number, to being monitored or recorded. By providing us with a phone number (including mobile) as your contact number, you expressly authorize us to contact you regarding your account for non-telemarketing communications, via text message or telephone, including the use of prerecorded or auto-dialed calls, using that number.
Limitation of Liability. PHC DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR PRODUCT NOT BEING AVAILABLE FOR USE, LOST PROFITS, LOSS OF BUSINESS OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, OR THE PROVISION OF SERVICES AND SUPPORT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, PHC WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY CLAIM BY ANY THIRD PARTY. YOU AGREE THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCT, PHC IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AMOUNT INVOICED FOR THE APPLICABLE PRODUCT. SOME JURISDICTIONS MAY NOT ENFORCE ALL OF THESE LIMITATIONS, AND ONLY THE LIMITATIONS THAT ARE LAWFULLY APPLIED TO YOU IN YOUR JURISDICTION WILL APPLY.
Purchases may not be resold or exported. Your purchase is for your own use, not for resale or export. Your purchase may not be sold, leased, or transferred to restricted countries, restricted end users, or for restricted end uses according to U.S. export and sanctions laws.
Governing Law. THE PARTIES AGREE THAT THIS AGREEMENT, ANY SALES THERE-UNDER, OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE) BETWEEN YOU AND PHC arising from or relating to this Agreement, its interpretation or the breach, termination or validity thereof, the relationships which result from this agreement, PHC’s advertising, or any related purchase SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAW.
Dispute Resolution and Binding Arbitration. YOU AND PHC 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.
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 CUSTOMER AND PHC, its agents, employees, successors, assigns, direct and indirect subsidiaries, and any third party providing any products or services to you in connection with your purchase (collectively “PHC”) arising from or relating to your purchase of Product, this Agreement, its interpretation or the breach, termination or validity thereof, the relationships which result from this Agreement (including relationships with third parties who are not signatories to this Agreement), PHC’s advertising or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. 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 arbitration shall be administered by the American Arbitration Association (AAA) or JAMS (or a substitute forum if both are unavailable). Arbitration proceedings shall be governed by this provision and the procedures of the selected arbitration administrator, including any procedures for consumer-related disputes, in effect when the claim is filed. Consumer claimants (individuals whose transaction is intended for personal, family or household use) may elect to pursue their claims in small-claims court rather than arbitration. The arbitration or small-claims court proceeding will be limited solely to the customer’s individual dispute or controversy.
You agree to an arbitration on an individual basis. In any dispute, NEITHER CUSTOMER NOR PHC SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR ARBITRATE OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration.
The arbitrator shall be empowered to grant whatever relief would be available in court under law or in equity. This transaction shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (FAA). Any award of the arbitrator(s) shall be final and binding on each party, and may be entered as a judgment in any court of competent jurisdiction. PHC will be responsible for paying any individual consumer’s arbitration/arbitrator fees. If you prevail on any claim that affords the prevailing party attorneys’ fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law. Information on AAA or JAMS and their applicable rules are available at the following numbers and URLs: American Arbitration Association, (800) 778-7879, www.adr.org; JAMS, (800) 352-5267, www.jamsadr.com.