THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY
These Terms and Conditions (these “T&C”) constitute an agreement between you and Empire Laboratories, Inc. (“Empire”) and govern your purchase and use of Empire’s products, including without limitation the Clone-a-Willy Kit, Clone-a-Willy-Plus+ Kit, the Clone-a-Pussy Kit, Clone-a-Pussy-Plus+ Kit, refills for the aforementioned kits, accessories (including without limitation penis pumps, cock rings, vibes, lubricants, cleaners) and merchandise (collectively, the “Products” and each a “Product”). You agree that these T&C are the exclusive terms governing the sales transaction between you and Empire. As used in these T&C, “you” or the “customer” means the individual who has made the original purchase of the Product.
BY PURCHASING AND ACCEPTING DELIVERY OF THE PRODUCT, YOU ARE AGREEING TO BE BOUND BY THESE T&C. IF YOU DO NOT WISH TO BE GOVERNED BY THESE T&C, PLEASE RETURN THE PRODUCT WITHIN THIRTY (30) DAYS OF RECEIPT OF SHIPMENT WITH A PROOF OF PURCHASE.
NO WARRANTY
TO THE FULLEST EXTENT PERMITTED BY LAW, EMPIRE PROVIDES NO WARRANTIES FOR THE PRODUCTS. NO STATEMENT ON EMPIRE’S WEBSITE OR ON ANY RETAILER’S WEBSITE CREATES A WARRANTY FOR THE PRODUCTS. EMPIRE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, FOR ANY AND ALL OF THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALL PRODUCTS ARE SOLD AS-IS.
SOME STATES DO NOT ALLOW THE EXCLUSION OR DISCLAIMER OF WARRANTIES, SO THE ABOVE DISCLAIMER OR EXCLUSION MAY NOT APPLY TO YOU.
ASSUMPTION OF RISK
Customer understands that failure to follow all instructions, failure to follow warnings, and improper use of the Products creates risks and dangers, including without limitation, injury, burns, chaffing, choking, internal lodging, death, loss of or damage to property, and other undefined, not readily foreseeable and presently unknown risks and dangers (collectively, the “Risks”). Customer expressly assumes all such Risks and all damages, losses or expenses Customer incurs as a result of Customer’s failure to follow all instructions, failure to follow warnings, and improper use of the Products.
LIMITATION OF LIABILITY
IN NO EVENT SHALL EMPIRE BE HELD RESPONSIBLE TO YOU, WHETHER IN CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE OR PRODUCT LIABILITY) OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, DAMAGES FOR ANY LOSS OF PROFIT OR REVENUES, EVEN IF EMPIRE HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES. IN NO EVENT SHALL EMPIRE BE LIABLE FOR COSTS OR DAMAGES IN EXCESS OF THE PURCHASE PRICE OF THE PRODUCT.
YOU ALSO AGREE NOT TO BRING ANY LEGAL ACTION, BASED UPON ANY LEGAL THEORY INCLUDING CONTRACT, TORT (INCLUDING NEGLIGENCE OR PRODUCT LIABILITY) OR OTHER LEGAL OR EQUITABLE THEORY, AGAINST EMPIRE THAT IS MORE THAN ONE YEAR AFTER THE DATE OF PURCHASE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
GOVERNING LAW
These T&C and any and all matters arising out of or relating to these T&C will be governed and construed in accordance with the laws of the State of Oregon, without giving effect to any choice of law principles thereof which could result in the application of the law of another jurisdiction. Specifically, the validity, interpretation and performance of this agreement shall not be governed by the United Nations Convention on the International Sale of Goods.
ARBITRATION CLAUSE
Any dispute, controversy or claim arising out of, relating to or in connection with these T&C, including the breach or validity thereof, or the use of the Products shall be finally resolved by binding arbitration as described in this paragraph, rather than in court. The arbitration shall be held in Portland, Oregon, in accordance with the Rules of Arbitration Services of Portland (the “Rules”) and presided by a sole arbitrator selected in accordance with the Rules. You and Empire hereby waive any rights to appeal or to review such award by any court, arbitrator, or tribunal.
YOU AND EMPIRE AGREE TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS, AND THAT THESE T&C DO NOT PERMIT CLASS ARBITRATION OR ANY CLAIMS BROUGHT AS A PLAINTIFF, CLAIMANT OR CLASS MEMBER IN ANY CLASS, CONSOLIDATED, OR REPRESENTATIVE ARBITRATION PROCEEDING. Class action and representative action procedures shall not be asserted in nor apply to any arbitration pursuant to these T&C. As such, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. Notwithstanding the arbitrator’s power to rule on its own jurisdiction and the validity or enforceability of this arbitration clause, the arbitrator has no power to rule on the validity or enforceability of the agreement to arbitrate solely on an individual basis.
This clause constitutes an arbitration agreement between you and Empire and shall be governed by the Federal Arbitration Act.
WAIVER OF JURY TRIAL AND CLASS ACTION
IF, FOR ANY REASON, A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, BOTH YOU AND EMPIRE IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT YOU AND EMPIRE MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THESE T&C OR THE TRANSACTIONS CONTEMPLATED HEREBY. YOU ACKNOWLEDGE THAT YOU HAVE CONSIDERED THE IMPLICATIONS OF THIS WAIVER AND YOU MAKES THIS WAIVER VOLUNTARILY.
FURTHER, YOU WAIVE ANY RIGHT TO ASSERT ANY CLAIMS OR LITIGATE IN COURT AGAINST EMPIRE AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY.
INDEMNIFICATION
You agree to indemnify and hold Empire, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against Empire by any third party due to, relating to, or arising out of or in connection with your use of the Products.
SEVERABILITY
If any term or provision of these T&C becomes invalid, illegal, or unenforceable, such term or provision shall be considered severed from these T&C, and all other terms and provisions of these T&C shall otherwise remain in full force and effect. To the extent possible, any invalid, illegal, or unenforceable term or provision shall be deemed modified so as to have the most similar result that is valid and enforceable under applicable Oregon law.
MODIFICATION
Any attempt to alter, supplement, modify or amend these T&C by the Customer will be considered a material alteration and will be null and void. In addition, these T&C are subject to change at any time, without prior written notice. Therefore, please check the terms and conditions carefully each time you place an order with or accept delivery of any Product from Empire.
ENTIRE AGREEMENT
These T&C, together with the invoices relating to Products purchased, are the complete and exclusive agreement between you and Empire, and they supersede all prior or contemporaneous proposals, oral or written, understandings, representations, conditions, warranties, and all other communications between you and Empire relating to the subject Products. These T&C may not be explained or supplemented by any prior course of dealings or trade, by Empire’s website, or by custom or usage.
