Terms and Conditions of Sale

1. Scope.  These Terms and Conditions of Sale (these “Terms”) shall apply to and govern all sales of product(s) (“Products”) by New Cherry Master, LLC (“us”, “we” and “our”) to any individual or entity (“you”). By clicking “I agree”, you are confirming your agreement to be bound by these Terms. Any attempt by you to vary these Terms in any acceptance, acknowledgment, confirmation or other communication or document, which may contain additional, different or inconsistent terms, is hereby expressly objected to and rejected by us. Our failure to object to provisions contained in any communication from you shall not be deemed to waive any provisions herein, or to accept any different terms and conditions communicated by you.
2. Payment and Order Acceptance.  Payment for any and all purchases is due in full in conjunction with your placement of an order with us. You may be asked to supply certain information relevant to your Transaction including, without limitation, your credit card number, the expiration date of your credit card, your billing address and your shipping information. You represent and warrant that you have the legal right to use any credit card(s) or other payment method(s) utilized in connection with any Transaction.  Providing any untruthful or inaccurate information constitutes a breach of these Terms and may result in order cancellation by us. Prior to accepting an order we may also request additional information from you. By placing an order, you represent that the Products ordered will be used only in a lawful manner. You agree to pay all charges that may be incurred by you or on your behalf, at the price(s) in effect when such charges are incurred including, without limitation, all shipping and handling charges. In addition, you remain responsible for any taxes that may be applicable to your order(s). We reserve the right, with or without prior notice, to impose conditions on the honoring of any coupon, coupon code, promotional code or other similar promotion. Purchasing or intending to purchase any Products from us for the purpose of engaging in a commercial sale of that same Product with a third party is strictly prohibited.
3. Order Cancellation and Returns.  All orders are final and non-cancelable by you. Notwithstanding the foregoing, we may, in our sole discretion, permit you to modify or cancel an order in whole or in part. Any permitted modification or cancellation shall only be effective upon your receipt of our written confirmation of such modification or cancellation. We reserve the right to modify, refuse or cancel an order in whole or in part for any reason upon notice to you. If your order is canceled after your credit card or other payment account has been charged, we will issue a credit to your credit card or other applicable payment account in the amount of the charge. You may return the Products only if the Products fail to conform substantially to the Limited Warranty set forth in Section 5, below.
4. Time and Cost of Delivery.  You acknowledge that any cost and delivery date specified by us is an estimated and projected cost and delivery date and that time of delivery by us is not of the essence.  While the cost of shipment is as accurate as possible, certain delivery zip codes located in areas such as Alaska, Hawaii, very rural or urban delivery locations may require additional surcharges that you will be responsible for.  If this situation arises, we will contact you, explain why the situation has occurred and after being given the cost of additional shipping will be required to make such payment prior to order being shipped.  Failure to pay additional shipping costs promptly may result in order cancellation at our discretion.
5. Limited Warranty.  For a period of ninety (90) days (unless otherwise stated) following the date of shipment of the Products from us to you, we warrant that the Products shall be free from defects in workmanship and materials and shall conform to our written specifications that accompany the Products or are published by New Cherry Master, LLC on New Cherry Master, LLC’s website, and its affiliates and sister companies’ (such as LT Vape, LLC) websites at the time of order. This limited warranty shall be null and void and without force or effect hereunder as to any defect in the Products which arises from normal wear and tear, any neglect or other improper or unlawful use, repair, modification, negligence or excessive use, as determined in our sole discretion. Our sole obligation for Products failing to comply with this warranty shall be, at our option, to repair, replace or issue credit for the nonconforming Products where (i) we have received written notice of any nonconformity during the warranty period; (ii) after you have spoken to us by calling (262)820-8888 and have received our return authorization , you have returned the nonconforming Products to us at your sole shipping and handling expense; and (iii) we have determined that the Products are nonconforming and that such nonconformity is not the result of any action described in the foregoing sentence. THE FOREGOING WARRANTY AND REMEDIES ARE EXCLUSIVE AND MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS.  WE DO NOT ASSUME OR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR US ANY OTHER LIABILITY IN CONNECTION WITH THE PRODUCTS.
6. Limited Liability.  IN NO EVENT SHALL WE BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY NATURE ARISING OUT OF OR RELATING TO THE SALE OF ANY PRODUCTS, OR PERFORMANCE OR NONPERFORMANCE OF THESE TERMS, INCLUDING, WITHOUT LIMITATION, DELAY, LOST REVENUE, LOST PROFITS OR LOSS OF GOODWILL, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WE BE LIABLE FOR ANY INJURIES SUSTAINED IN THE USE OF THE PRODUCTS OR ANY USE OF THE PRODUCTS IN CONTRAVENTION OF ANY FEDERAL, STATE OR LOCAL LAWS, RULES OR REGULATIONS. YOUR AGGREGATE RECOVERY FROM US FOR ANY CLAIM OTHER THAN THOSE EXCLUDED HEREIN SHALL NOT EXCEED YOUR PURCHASE PRICE FOR THE PRODUCTS GIVING RISE TO SUCH CLAIM IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY OR OTHERWISE. WE SHALL NOT BE LIABLE FOR ANY CLAIMS BASED ON OUR COMPLIANCE WITH YOUR DESIGNS, SPECIFICATIONS OR INSTRUCTIONS, OR MODIFICATIONS OF ANY PRODUCTS BY PARTIES OTHER THAN US, OR USE IN COMBINATION WITH OTHER PRODUCTS. IF, FOR ANY REASON, THE FOREGOING LIMITATIONS ARE FOUND BY AN ARBITRATION PANEL OR COURT TO BE INVALID OR INAPPLICABLE UNDER ANY APPLICABLE STATE OR FEDERAL LAW, YOU AGREE THAT OUR TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION OF ANY KIND OR NATURE SHALL BE LIMITED TO ACTUAL, DIRECT DAMAGES WITHOUT REGARD TO ANY PUNITIVE OR EXEMPLARY DAMAGES PROVIDED BY ANY SUCH APPLICABLE LAW.
7. Confidential Information.  You may acquire knowledge of Confidential Information of ours in connection with the Products and/or our performance hereunder and agree not to use or disclose, directly or indirectly, Confidential Information for your own benefit or for the benefit of any third party. “Confidential Information” includes but is not limited to all information, whether written or oral, or whether marked as confidential, in any form, including, without limitation, information relating to the Products, research, development, methods of manufacture, trade secrets, work product and other material or information considered proprietary by us relating to the Products or current or anticipated business of ours that is disclosed directly or indirectly to you. All Confidential Information is and shall remain the exclusive property of ours. You agree not to copy, decompile, disassemble, discover, reverse engineer or otherwise design around, in whole or in part, or attempt to do so, any Products or Confidential Information. The obligation of this Section 7 shall survive the purchase and sale of Products.
8. Compliance With Laws.  It is your responsibility to ascertain and obey all federal, state and local laws, rules and regulations pertaining to the receipt, possession and use of the Products purchased or received from us. You expressly assume all responsibility and all liability for your conduct and compliance with all laws, rules and regulations, and we expressly disclaims any responsibility or liability therefore.
9. Indemnification.  You shall each defend, indemnify and hold harmless us and our directors, managers, officers, employees, agents, affiliates, successors and assigns from and against all allegations, claims, actions, settlements, suits or threats thereof asserted by any third party, governmental, private or otherwise (“Claims”), and all liabilities, losses, damages, penalties, fines, costs and expenses of whatever kind (including attorneys’ fees) incurred in connection therewith (“Losses”), to the extent directly or indirectly arising out of, relating to or in any way connected with the Products, including, without limitation, our marketing or sale of any Products to you, any use or handling thereof, any breach of these Terms or any failure by you to comply with any federal, state or local laws, rules or regulations, except any Claims or Losses arising directly from our gross negligence or willful misconduct.
10. Risk of Loss.  Unless otherwise agreed to in writing by us, the risk of loss of or damage to the Products shall pass to you at the time the Products are delivered to a carrier at our facility or other loading point. We shall not be liable for any loss of any kind to you arising from any damage to the Products occurring after the risk has passed to you however caused, nor shall any liability or obligation of you to us be diminished or extinguished by reason of such loss.
11. Force Majeure.  We shall not be liable for any loss or damage arising from our delay in performing or failure to perform as a result of equipment failures, power failures, labor disputes, riots, insurrections, civil disturbances, shortages of materials, fires, floods, storms, explosions, acts of god, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance by third parties or any other occurrence or loss beyond the reasonable control of ours.
12. Assignment and Subcontracting.  We shall be entitled at all times to delegate or assign our rights under these Terms in whole or in part, or to subcontract any part of the work or services to be provided to you, as we deem necessary or desirable. You cannot assign any rights under these Terms in whole or in part without our prior written consent.
13. Waiver.  You hereby acknowledge and agree that failure by us to exercise or enforce any of ours rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter. All rights and remedies of ours under these Terms and at law and in equity are cumulative and not mutually exclusive.
14. Applicable Law; Venue.  These Terms shall be construed, governed by and interpreted according to the internal laws of the State of Wisconsin, excluding any choice of law rules that may direct the application of the laws of another jurisdiction. Any dispute, claim or controversy relating to or arising under these Terms or the dealings between you and us which cannot be resolved amicably shall be commenced and prosecuted exclusively in the state courts of Waukesha County, Wisconsin or the federal court located in the Eastern District of Wisconsin (in either event, the “Forum Court”). You stipulate and consent to the exclusive jurisdiction, personal jurisdiction and proper venue of the Forum Court and waive and relinquish all right to attack the suitability or convenience of such venue or forum by reason of your present or future domiciles, or by any other reason. You acknowledge that all directions issued by the Forum Court, including all injunctions and other decrees, will be binding and enforceable in all jurisdictions. For avoidance of doubt, you acknowledge that these Terms are not governed by or subject to the U.N. Convention on Contracts for the International Sale of Goods.
15. Severability.  The invalidity, illegality or unenforceability of any provision of these Terms shall not affect or impair the validity, legality or enforceability of any other provision of these Terms, which shall remain in full force and effect.
16. Amendment of Terms.  These Terms shall not be waived or amended except by our express written agreement.

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