Sales Terms and Conditions

Last Updated: August 6, 2024

BLUE GOJI TERMS AND CONDITIONS FOR SALE

1. General. These terms apply to all products (“Products”) sold by Blue Goji LLC (“BLUE GOJI”) and they represent the sole understanding between BLUE GOJI and the buyer identified on the front side hereof (“Buyer”) with respect to the purchase of Products. Buyer’s purchase order is solely for the purpose of requesting specific Products, delivery dates, quantities, and shipping destinations. Any provision of Buyer’s purchase order (or other documents and communications) which is in any way inconsistent with or in addition to these terms shall not be binding on BLUE GOJI and are hereby rejected by BLUE GOJI.

2. Price. All prices published by BLUE GOJI may be changed at any time without notice. All prices are exclusive of transportation, insurance costs and all taxes including use, sales, property (ad valorem) and similar taxes. Buyer agrees to pay such taxes (except taxes based upon BLUE GOJI’s net income).

3. Invoice and Payment. BLUE GOJI will invoice Buyer on the date the Product is tendered to the carrier at BLUE GOJI’s facility. All invoices will be due and payable in full in U.S. dollars immediately upon receipt of BLUE GOJI’s invoice, unless otherwise provided on the front side hereof. If payment is not timely received, a service charge of one and one-half percent (1-1/2%) per month or the maximum rate permitted by law, whichever is less, shall be assessed on overdue payments. If, in BLUE GOJI’s judgment, Buyer’s financial condition does not justify continuation of shipment on the original terms of payment, BLUE GOJI may require full or partial payment in advance. If Buyer refuses to accept such change in credit terms, Buyer’s order may, at BLUE GOJI’s option, be canceled without liability arising therefrom to BLUE GOJI, in whole or in part. Further, on delinquent accounts, BLUE GOJI shall not be obligated to continue performance under any agreement with Buyer. Buyer warrants to BLUE GOJI that, upon each date Buyer orders Products, Buyer was financially solvent within the meaning of Section 2702 of the California Commercial Code, or other associated relevant state law. For sales to a Buyer having its principal place of business outside the United States of America, BLUE GOJI reserves the right to bill in either United States dollars or the currency of the country in which the Product is shipped. In the event BLUE GOJI invoices Buyer in a foreign currency, the rate of exchange will be that in effect on the date of invoice, and the United States dollar equivalent will be calculated using the exchange rate (foreign currency per US$1) published in The Wall Street Journal, Western Edition, under the heading “Currency Trading” on the date of invoice (or closest business day thereto). In the event (i) of Buyer's bankruptcy or insolvency, (ii) that any proceeding is brought or threatened against Buyer or brought by Buyer under any bankruptcy or insolvency laws or their equivalent or (iii) that Buyer commences to be wound up or suffers a receiver to be appointed, BLUE GOJI may cancel any order then outstanding without liability to BLUE GOJI and BLUE GOJI shall receive reimbursement from Buyer for costs incurred, including but not limited to attorneys' fees, lost profit for Product so cancelled, and all other costs associated with the cancellation, direct and indirect, including without limitation costs for work in process or custom goods.

4. Security Interest. BLUE GOJI hereby reserves a purchase money security interest in the Products sold and the proceeds thereof, in the amount of the Products’ purchase price. In the event of default by Buyer of any of its obligations to BLUE GOJI, BLUE GOJI shall have the right to repossess the Products sold hereunder without liability to Buyer. This security interest will be satisfied by payment in full. Buyer agrees to execute any document requested by BLUE GOJI to perfect the foregoing security interest.

5. F.O.B. All sales are made F.O.B. BLUE GOJI’s facility. Title and risk of loss shall pass to Buyer upon tender by BLUE GOJI of the Product to the carrier at BLUE GOJI’s shipping point. All claims for damages must be filed directly with the carrier. The planned shipment date is an estimate only, and BLUE GOJI will not be subject to liability for failure to ship on or before such date under any circumstances. Any carrier selected by BLUE GOJI shall not be deemed an agent of BLUE GOJI.

6. Force Majeure. BLUE GOJI shall not be liable for nonperformance or delays, under any circumstances, which occur due to any causes beyond its reasonable control. In no event shall BLUE GOJI be liable for any delay or re-procurement costs for failure to meet any shipment date. In the case of Product shortages, BLUE GOJI reserves the right to allocate Products in a fair and equitable manner among all of its customers.

7. Acceptance. Buyer shall give written notice to BLUE GOJI of (i) discrepancies between the type and quantity of Product ordered and Product delivered or (ii) Product defects, within five (5) days after delivery of the Product to Buyer. Lacking such notice, the Buyer shall be deemed to have accepted the Product as delivered. BLUE GOJI reserves the right to make partial shipments, and invoices will be issued accordingly. Buyer may not reject a delivery by reason of partial shipment.

8. No Royalties. Buyer shall not receive any royalties, revenue sharing or other payments from BLUE GOJI or any third party in connection with any use of the Products.

9. No Licenses Granted. The sale of Products by BLUE GOJI does not convey any license, expressly or by implication, estoppel or otherwise, under any BLUE GOJI patent, copyright, trademark, or other intellectual property right. BLUE GOJI expressly reserves and retains all of its intellectual property rights in the Products.

10. Limitation of Liability. BLUE GOJI’s sole liability to Buyer and Buyer’s sole and exclusive remedy hereunder for all claims shall be limited to a refund or credit to Buyer of the purchase price, or to the repair or replacement of the Product, at BLUE GOJI’s option. In no event shall BLUE GOJI be liable for Buyer’s costs of procurement of substitute products or Buyer’s inability to obtain substitute products. IN NO EVENT SHALL BLUE GOJI BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES INCLUDING WITHOUT LIMITATION LOST PROFITS, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE EVEN IF BLUE GOJI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.

11. Indemnification by Buyer. Buyer shall defend, indemnify, and hold harmless BLUE GOJI, its directors, officers, employees and agents from and against any claims, demands, causes of action, liabilities, or expenses (including attorneys’ fees and costs) for any personal or bodily injury, illness or death or property damage or any other claims, demands, allegations, damages, costs or liabilities arising out of or resulting in any way from Buyer’s misuse or mishandling of the Products.

12. Indemnification by BLUE GOJI. BLUE GOJI agrees, at its own expense, to defend Buyer with respect to all suits instituted against Buyer to the extent based on a claim that a Product manufactured by BLUE GOJI infringes a U.S. patent issued prior to the date of sale, U.S. copyright or U.S. trademark, and will pay all damages awarded against Buyer, or settlements entered into by BLUE GOJI, in connection therewith, provided, however, that Buyer (i) gives immediate written notice to BLUE GOJI of the institution of any such suit, (ii) permits BLUE GOJI complete discretion in the conduct, defense, control, and settlement of the same, and (iii) gives BLUE GOJI all needed information, assistance, and authority to enable BLUE GOJI to do so. BLUE GOJI will not be responsible for defending any claim or paying any award or damages assessed against Buyer based upon or alleging the making, use, or sale of Products in combination with other products, equipment or materials not furnished by BLUE GOJI or based upon the making, use, or sale of Products which are modified other than by BLUE GOJI. In the event Products manufactured by BLUE GOJI infringe, or in the opinion of BLUE GOJI might constitute an infringement of, a U.S. patent issued prior to the date of sale, U.S. copyright or U.S. trademark, BLUE GOJI may, if BLUE GOJI so elects and if such a result is possible, either (i) secure for Buyer the right to continuing using the Products by procuring for the Buyer a license, or by some other means, (ii) at BLUE GOJI’s own expense, replace the Product with non-infringing Products, or (iii) remove the enjoined Products and refund the sums paid therefor, less a reasonable sum for depreciation and use. The foregoing provisions, however, will not obligate BLUE GOJI in any way under this Section 12 with respect to any equipment, devices, parts or goods not manufactured by BLUE GOJI, or to any equipment, device, part or Product which is specially manufactured by BLUE GOJI based upon, and in accordance with, designs, specifications or processes supplied by Buyer. THIS SECTION 12 STATES BUYER’S SOLE AND EXCLUSIVE REMEDY AND BLUE GOJI’S ENTIRE LIABILITY AND OBLIGATION (EXPRESS, STATUTORY, IMPLIED OR OTHERWISE) WITH RESPECT TO INTELLECTUAL PROPERTY INFRINGEMENT OR CLAIMS THEREOF. BLUE GOJI SHALL NOT BE RESPONSIBLE FOR DEFENDING ANY CLAIM, OR PAYING ANY AWARDS OR DAMAGES ASSESSED AGAINST BUYER IN CONNECTION WITH THE PRODUCTS OTHER THAN AS EXPRESSLY SET FORTH IN THIS SECTION 12.

13. Limited Warranty. If the Product is not manufactured by BLUE GOJI, BLUE GOJI will, to the extent authorized to do so, pass along to Buyer the manufacturer’s warranty. BLUE GOJI makes no warranty whatsoever with respect to Products not manufactured by BLUE GOJI and such Products are sold to Buyer by BLUE GOJI “AS IS.” If the Product is manufactured by BLUE GOJI, BLUE GOJI warrants to Buyer that the Product will be free from defects in material and workmanship and will perform substantially in accordance with BLUE GOJI’s applicable specification for BLUE GOJI’s specified standard warranty period. In the event of a breach of the foregoing warranty, BLUE GOJI, in its sole discretion, shall repair or replace the defective Product or refund the purchase price therefor provided that the non-conforming Product is (i) returned during the warranty period and (ii) properly packaged and shipped, at Buyer’s expense, to BLUE GOJI’s designated repair facility, in accordance with BLUE GOJI’s Return Policy, or as otherwise instructed by BLUE GOJI. THE REMEDIES SET FORTH IN THIS SECTION 13 SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY. Products which have been improperly handled or shipped, or which have been subject to abuse, misuse, accident, alteration, neglect, improper or inadequate maintenance, unauthorized repair, or improper installation are not covered by warranty. No warranty is made with respect to custom equipment or Products produced to Buyer’s custom specification unless BLUE GOJI explicitly states the terms of such a warranty in writing in the contract for such custom Products under a heading expressly referencing the term “Warranty”. Buyer acknowledges that Buyer has selected on its own the Products as suitable for Buyer’s intended purpose and that BLUE GOJI makes no warranty with respect to such suitability for fitness of the Product for such purposes.

14. Warranty Disclaimer. EXCEPT FOR THE EXPRESS WARRANTY PROVIDED IN SECTION 13, ALL PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS, AND BLUE GOJI HEREBY EXRPESSLY EXCLUDES ALLWARRANTIES, WHETHER EXPRESS, IMPLIED BY OPERATION OF LAW, COURSE OF DEALING, TRADE USAGE, REPRESENTATION, STATEMENT OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY DESIGN WARRANTIES, IMPLIED WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT. EXCEPT AS OTHERWISE AGREED BY BLUE GOJI IN WRITING, BUYER SHALL HAVE NO RIGHT TO MAKE OR PASS ON ANY WARRANTY ON BEHALF OF BLUE GOJI TO ANY THIRD PARTY.

15. Miscellaneous. The validity, performance, and construction of these terms shall be governed by the laws of the United States of America and the State of Texas as applied to transactions taking place wholly within Texas between Texas residents. The U.N. Convention on Contracts for the International Sale of Goods is specifically excluded from application. Buyer agrees to comply strictly and fully with all export controls imposed by any jurisdiction. In the event of litigation to enforce any rights hereunder, the parties will voluntarily appear before and hereby consent and submit to the non-exclusive jurisdiction of the courts of the United States of America/Travis County, Texas and each party hereby waives any venue objections to such courts. The prevailing party in any such litigation or related settlement negotiations shall be entitled to recover reasonable attorneys’ fees and expenses. Buyer may not assign this agreement or any interest or right herein without BLUE GOJI’s prior written consent. Any assignment without such consent shall be null and void. These terms may be amended or supplemented only by a writing that is signed by the authorized representatives of both parties. No term or provision of these terms will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party. If any part of these terms is found invalid or unenforceable, that part will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of these terms will remain in full force. Buyer hereby acknowledges that it has not entered into this agreement in reliance upon any warranty or representation by any person or entity except for such warranties or representations as are specifically set forth herein.

These terms shall not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing without BLUE GOJI’s written consent. No representation, promise or condition not expressly provided in writing and signed by authorized representatives of Buyer and BLUE GOJI shall be binding on either party.

Additional Terms:

Warranty: Warranty on new Blue Goji LLC exercise equipment sold within 48 contiguous United States consists of parts, labor and computer coverage. Basic wear & tear parts are covered for 120 days. Basic wear and tear parts include seats (incl levers & adjustment), pedals/pedal straps, game controllers/buttons, cup holders, and phone trays. Bikes must be registered, online with active e-Live subscription and be connected to a surge protector. Coverage not to exceed 3 years. See our warranty terms at https://www.bluegoji.com/warranty.