ALL MEMBERSHIP SERVICES ARE GOVERNED BY CONCIERGE LIFESTYLE’S TERMS AND CONDITIONS OF SALE AS SET FORTH HEREIN.
1. FORMATION OF CONTRACT. A written or oral request for use of a Membership Service is deemed by Concierge Lifestyle to be an offer to purchase services, which Concierge Lifestyle may accept or reject in its sole discretion. Concierge Lifestyle must provide an affirmative acknowledgement of such offer to purchase services to accept an order. Concierge Lifestyle’s affirmative acceptance is subject to Concierge Lifestyle’s Membership Terms of Use stated herein.
2. COST OF DELIVERY, TAXES AND OTHER CHARGES. Member shall pay the costs of the services, including any sales, use, excise or similar taxes, directly to the Concierge Providers.
3. NO SET-OFF. Member shall have no right of set-off or withholding, and no deduction of any amounts due from Member to Concierge Lifestyle shall be made without Concierge Lifestyle’s prior, express written approval.
4. DISCLAIMER OF WARRANTIES. THE WARRANTIES SET FORTH HEREIN WITH RESPECT TO A SERVICE PROVIDED BY A CONCIERGE PROVIDER ARE THE ONLY WARRANTIES MADE BY CONCIERGE LIFESTYLE IN CONNECTION WITH THE SERVICES AND THE TRANSACTIONS CONTEMPLATED AS A RESULT OF THIS SALE. CONCIERGE LIFESTYLE MAKES NO OTHER WARRANTIES OR REPRESENTATIONS TO MEMBER OR ANY OTHER PERSON OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, AND CONCIERGE LIFESTYLE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SERVICES SOLD HEREUNDER ARE SOLD ONLY TO THE SPECIFICATIONS SPECIFICALLY SET FORTH BY CONCIERGE LIFESTYLE IN WRITING. CONCIERGE LIFESTYLE’S SOLE OBLIGATION FOR A REMEDY TO MEMBER SHALL BE A REFUND OF THE CURRENT MONTH’S MEMBERSHIP FEE. MEMBER ASSUMES ALL RISK WHATSOEVER AS TO THE RESULT OF THE — USE OF SERVICES PURCHASED, WHETHER — USED ALONE OR IN COMBINATION WITH OTHER SERVICES OR SUBSTANCES.
5. LIMITATION OF LIABILITY. No claim by Member of any kind including, but not limited to, claims for indemnification, whether as to quality or amount of services delivered or non-delivery, shall be greater in amount then the purchase price for the services in respect of which damages are claimed. IN NO EVENT SHALL CONCIERGE LIFESTYLE BE LIABLE TO MEMBER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF — USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, OR LOSS OF DATA, ARISING OUT OF, OR AS A RESULT OF, THE SALE, DELIVERY, SERVICING, — USE OR LOSS OF THE SERVICES SOLD HEREUNDER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN, INCLUDING ANY SUCH DAMAGES CA– USED OR ARISING FROM — USE OF ANY OF THE PREFERRED PROVIDERS OF CONCIERGE LIFESTYLE.
6. CONCIERGE LIFESTYLE’S RIGHTS. If Member should fail in any manner to fulfill the terms and conditions hereof, Concierge Lifestyle may defer further services until such default is cured. Remedies provided herein shall be in addition to, and not in lieu of, other remedies that may be available to Concierge Lifestyle.
7. GOVERNING LAW. This Agreement shall be construed, and the respective rights and duties of Member and Concierge Lifestyle shall be determined, according to the laws of the State of New York, without giving effect to its principles of conflicts of laws. The UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
8. DISPUTE RESOLUTION. Any dispute, controversy or claim arising out of or related in any way to these Membership Terms of Use and/or any sale and purchase of services hereunder or any transaction contemplated hereby which cannot be amicably resolved by the parties 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 single arbitrator sitting in Suffolk or Nassau County within the State of New York. The language of the arbitration shall be English. The arbitrator will be bound to adjudicate all disputes in accordance with the laws of the State of New York. The decision of the arbitrator shall be in writing with written findings of fact and law and shall be final and binding on the
parties. The arbitrator shall be empowered to award money damages, but shall not be empowered to award consequential damages, indirect damages, special damages, exemplary damages, punitive damages or specific performance. Each party shall bear its own costs relating to the arbitration proceedings irrespective of its outcome. This section provides the sole recourse for the settlement of any disputes arising out of, in connection with, or related to this Agreement.
9. NO ASSIGNMENT. This contract between Member and Concierge Lifestyle is not transferable by either party without the prior written consent of the other party, except that Concierge Lifestyle may assign this Agreement without Member’s consent of the assignment is to an affiliate or if the assignment is carried out as part of a merger, restructuring, or reorganization, or sale or transfer of all or substantially all of Concierge Lifestyle’s assets. Any assignment without such consent shall be null and void.
10. INTELLECTUAL PROPERTY. Member acknowledges that Concierge Lifestyle is the owner of intellectual property related to the Service, including any trademark (the “Marks”) and proprietary color and patterns used in connection with its Products (the “Copyrights”). Member shall not use the Marks or Copyrights or any part thereof as part of Member’s name, nor register any name, including domain names, or mark confusingly similar to the Marks or Copyrights. Member acknowledges that it is not being licensed any right or interest of any kind in the Marks or Copyrights and that Member may not use same without the prior, written consent of Concierge Lifestyle.
11. FORCE MAJEURE. Neither Party shall be liable hereunder for any failure or delay in the performance of its obligations under this contract, except for the payment of money, if such failure or delay is on account of causes beyond its control, including labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, or acts of God, in which event the non-performing Party shall be excused from its obligations for the period of the delay and for a reasonable time thereafter. Each Party shall use reasonable efforts to notify the other Party of the occurrence of such an event within three (3) business days of its occurrence.
12. COLLECTION EXPENSE. If Concierge Lifestyle incurs any costs, expenses, or fees, including attorney’s fees and professional collection services fees, in connection with the collection or payment of any amounts due from the Member under this contract, Member agrees to reimburse Concierge Lifestyle for all such costs, expenses and fees.
13. MISCELLANEOUS. These Concierge Lifestyle’s Membership Terms of Use are the sole and exclusive statement of the parties’ understanding and agreement with respect to the transactions contemplated by this sale, notwithstanding any other terms that might be contained in any purchase order or other document received from Member or submitted to Concierge Lifestyle. No waiver by Concierge Lifestyle of any of Concierge Lifestyle’s Membership Terms of Use or any breach hereof shall constitute or be deemed to be a waiver of any such term or any such breach in any other case. No waiver shall be deemed to occur as a result of the failure to enforce any term or condition of these Concierge Lifestyle’s Membership Terms of Use. If any clause or portion hereof shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining clauses or portions shall remain in full force and effect. The paragraph headings are for convenience only and shall not be used in interpreting or construing these Concierge Lifestyle’s terms and Conditions of Sale.