I-LUMENATE, LLC D/B/A NOCQUA
THE INFORMATION CONTAINED HEREIN SETS FORTH YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE TRANSACTION(S) CONTEMPLATED FOR HEREBY. THESE TERMS REQUIRE THE USE OF ARBITRATION (ON AN INDIVIDUAL BASIS ONLY; I.E., CASE CONSOLIDATIONS AND CLASS-ACTIONS ARE NOT PERMITTED) IN ORDER TO RESOLVE DISPUTES. PLEASE REVIEW THIS DOCUMENT IN ITS ENTIRETY BEFORE ENTERING INTO ANY TRANSACTION HEREUNDER IN ORDER TO CONFIRM YOUR ACCEPTANCE HEREOF. YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE UNLESS AND UNTIL YOU:
(A) AGREE TO THESE TERMS AND CONDITIONS IN THEIR ENTIRETY; (B) ARE AT LEAST 18 YEARS OLD; AND (C) ARE NOT PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S CONTENTS, GOODS, OR SERVICES BYANY APPLICABLE LAW, RULE, OR REGULATION.
(1) Applicability of Terms and Conditions: These terms and conditions (these "Terms") shall apply to your purchase of products and related services through www.NOCQUA.com (the "Site").These Terms are subject to change at any time without prior written notice by I-Lumenate, LLC d/b/a NOCQUA (referred to herein as either “Company,” “we,” “us,” or “our”). The most recent version of these Terms shall be posted for your review at any time on the Site. Please review these Terms in their entirety prior to engaging in any transaction on the Site. Your continued use of the Site after any posting of updated Terms (which shall be dated as of their most recent update) shallconstitute your acceptance of and agreement to any changes therein made.
(2) Online Orders: When placing an order on our Site, you are effectively offering to purchase whatever products and services you select. We reserve the right to accept or reject any order in our own discretion. We will only accept or reject an order in its entirety. Should we elect to accept your offer, you will receive a confirming email at the email address that you provide at such time. Notwithstanding, we reserve the right to cancel any order once accepted by us (as evidenced by a confirming email) at any time in our sole discretion. Additionally, you have the option of cancelling your order (in its entirety only) at any time prior to our having sent to you the confirming email referenced herein.
(3) Payment Terms: All applicable prices are set forth alongside the goods and services offered on the Site. They may differ from the prices offered elsewhere (online or offline) by us for the same goods and/or services. Such prices are subject to change at any time by us in our sole discretion.
Additionally, to the extent that we offer a promotion in connection with any particular item, the terms of such offer shall be set forth in a separate document that shall govern its applicability (and, in the event of a conflict herewith, be considered the governing document). You will be responsible for the prices stated at the time of your transaction, as well as any: (i) sales, use, excise, and related taxes; and (ii) shipping and handling charges. Payment may only be made with a valid credit, debit card, or use of a bona-fide electronic payment provider (i.e., PayPal). By using any such card or payment provider, you are hereby representing and warranting your full right and authority to make such purchase in the manner elected without violating any applicable law, rule, or regulation.
(4) Shipping Information: It is our responsibility to ship your accepted order to you at the address you provide when making the order. You will be responsible for all associated shipping & handling charges. While we agree to use reasonable efforts to meet the shipping and delivery dates provided online, we shall not be responsible for any delays in shipments.
(5) Returns: If you, for any reason, are not satisfied with your order, you may return it for a full refund; provided: (i) the items(s) were not designated as non-returnable; (ii) your return is made within thirty (30) days of delivery; and (iii) the merchandise is returned in the same condition as originally received by you; and (iv) the goods are not obsolete or discontinued. Once the goods
are received by us, we will refund your purchase price, less the original shipping & handling charges and a 20% re-stocking fee. You bear the risk of loss or damage during shipment (other than when returning non-conforming merchandise) and as such, you are advised to obtain appropriate insurance. Your refund will be credited back to the same payment method used to make the applicable purchase.
(8) Representations & Warranties (R&Ws); Disclaimers; Limitations on Liability: (a) Buyer’s R&Ws: You represent and warrant to us as follows: (i) that you have the right to enter any transaction contemplated for hereby without violating these Terms, any applicable law, rule, or regulation, and/or any agreement with, or rights of, any third party; (ii) that you
will use the goods and services provided hereunder exactly as authorized and never in any way that would violate any applicable law or third party right of any kind; and (iii) that you are buying goods or services from the Site for solely your own use, and not for resale or export.
(b) MANUFACTURER’S WARRANTY AND COMPANY’S DISCLAIMERS: Any affirmation of fact or promise made by NOCQUA with respect to the face masks sold on this website, as well as any other goods sold on this site now or at a future date (collectively, the “Goods”) shall not be deemed to create an express warranty that the Goods shall conform to the affirmation or promise; any description of the Goods is for the sole purpose of identifying them and shall not be deemed to create an express warranty that the Goods shall conform to such description; any sample or model of the Goods is for illustrative purposes only and shall not be deemed to create an express warranty that the Goods shall conform to the sample or model; and no affirmation or promise, description, or sample or model shall be deemed part of the basis of the parties’ bargain. The face masks sold by NOCQUA through this website, or directly are not “medical devices” as defined in the Food, Drug & Cosmetic Act (“FDCA”) Section 201(h) and therefore have not been tested, examined or approved by the Food & Drug Administration (“FDA”). You assume all risks associated with use of the Face Masks and other Goods sold by NOCQUA and in addition to the disclaimers set forth elsewhere in this section forever waive, release and hold NOCQUA harmless from any claims associated with Your contraction of or exposure to the COVID-19 virus, to include any and all other coronavirus iterations previously existing or existing in the future. As used herein, NOCQUA includes NOCQUA and its affiliates, officers, employees, owners, subsidiaries and directors.
NOCQUA GIVES NO WARRANTY, EXPRESS OR IMPLIED, AS TO DESCRIPTION, QUALITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, PRODUCTIVENESS, OR ANY OTHER MATTER, OF ANY GOODS PURCHASED BY YOU THROUGH THIS WEBSITE OR DIRECTLY FROM NOCQUA. NOCQUA SHALL BE IN NO WAY RESPONSIBLE FOR THE PROPER USE AND SERVICE OF THE GOODS. YOUR PURCHASE OF THE GOODS IS MADE ON THE EXPRESS UNDERSTANDING THAT THERE IS NO IMPLIED WARRANTY THAT THE GOODS SHALL BE MERCHANTABLE OR AN IMPLIED WARRANTY THAT THE GOODS SHALL BE FIT FOR ANY PARTICULAR PURPOSE. YOU ACKNOWLEDGE THAT IT IS NOT RELYING ON THE COMPOSITE RESOURCE’S SKILL OR JUDGMENT TO SELECT OR FURNISH GOODS SUITABLE FOR ANY PARTICULAR PURPOSE AND THAT THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION OF THE GOODS ON THE FACE HEREOF.
(c) LIABILITY CAP: UNDER NO CIRCUMSTANCES WILL COMPANY’S
OBLIGATION OR LIABILITY UNDER THIS AGREEMENT EXCEED THE PURCHASE PRICE YOU PAID ON THE SITE FOR ANY GOODS OR SERVICES. ADDITIONALLY, UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR ANY LOSS OF USE, PERSONAL INJURY, SICKNESS, HEALTH-RELATED CLAIMS, DATA, BUSINESS, GOODWILL, REPUTATION, OR REVENUE, AND/OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES OR OTHER DIRECT OR INDIRECT LOSSES OF ANY KIND.
(9) Third-Party Beneficiaries: These Terms are for your sole benefit 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.
(10) Force Majeure: Company shall not be held responsible for delays or non-performance caused by activities or factors beyond its reasonable control, including without limitation, war, pandemic, governmental restrictions, weather, strikes, floods, lockouts, fires, acts of God, terrorism, and/or
delivery, vendor, supplier, or other third party delays, non-performance, or failures of any kind.
(11) Assignment: Company may assign or otherwise transfer any or all of its rights or obligations hereunder, in whole or in part, to any third party in its sole discretion. You may not assign any of your rights or delegate any of your duties hereunder at any time without our prior written consent
in each instance, and any attempt to do so shall be null and void.
(12) Partial Invalidity: In the event that any part or portion of these Terms is deemed to be invalid, illegal, or unenforceable, the remaining provisions shall continue in full force and effect.
(13) Governing Law/Binding Arbitration:
(a) Governing Law These Terms shall be governed by the laws of the State of North Carolina without regard to its conflict of laws principles.
(b) Binding Arbitration: Subject to subsection (c) below and all applicable laws, you are agreeing to give up: (i) your right to litigate any claims that may arise hereunder in court or before a jury; and (ii) your right to consolidate any claim and/or participate in any class-action claim that may arise hereunder in any manner or forum. Instead, any claim, dispute, or controversy of any kind or nature arising hereunder which cannot be amicably resolved by us shall be solely and finally settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place before a panel of one arbitrator sitting in Charlotte, North Carolina. The language of the arbitration shall be English. The arbitrators will be bound to adjudicate all disputes in accordance with the laws of the State of North Carolina. The decision of the arbitrator(s) shall be in writing with written findings of fact and shall be final and binding on the parties. Company shall bear all of its own costs, as well as your reasonable outside attorneys’ fees, actually incurred in connection with any such arbitration proceedings; provided, however, that if we are the prevailing party, we shall be entitled to reimbursement for those amounts that were expended on your behalf. With respect to any arbitration hereunder, as stated above, you hereby expressly waive any right to consolidate any claim and/or participate in any class-action claim of any kind or nature. This Section (13) provides your sole recourse for the settlement of any disputes arising out of, in connection with, or related to
these Terms. If any provision of this clause is found unenforceable, such unenforceable provision will be removed and the remaining terms will be enforced.
(14) No Waivers: Our failure to enforce any of our rights hereunder will not constitute a waiver of our right to make such enforcement in the future, subject to applicable law.