These Terms and Conditions govern the sale of Products (“Product” or “Products”) by AAIT/Technocraft Scaffold Distribution and its subsidiaries and affiliates (“Seller”) as well as by third party vendors and/or service providers of Seller to any buyer (the “Buyer”). These Terms and Conditions take precedence over Buyer’s supplemental and/or conflicting terms and conditions to which notice of objection is hereby given. Seller hereby rejects any and all terms or conditions proposed by Buyer, whether or not contained in any of Buyer’s business forms (including any purchase order) and/or website or in any other document or electronic media as more fully described in the Notice below.
NOTICE: SALE OF ANY PRODUCT, BASED ON AN ORDER TO PURCHASE PRODUCTS OR OTHERWISE, IS EXPRESSLY CONDITIONED ON, AND CONSTITES BUYER’S AGREEMENT TO, THESE TERMS AND CONDITIONS. SELLER EXPRESSLY OBJECTS TO ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY BUYER, INCLUDING ANY TERMS OR CONDITIONS IN ADDITION TO OR DIFFERENT FROM THIS DOCUMENT OF ANY KIND ASSERTED BY BUYER AS APPLICABLE TO THIS TRANSACTION. NO BUYER FORM SHALL MODIFY THESE TERMS AND CONDITIONS, NOR SHALL ANY COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE OPERATE AS A MODIFICATION OR WAIVER OF THESE TERMS AND CONDITIONS. NEITHER SELLER’S COMMENCEMENT OF PERFORMANCE OR DELIVERY SHALL BE DEEMED OR CONSTRUED AS ACCEPTANCE OF BUYER’S SUPPLEMENTAL OR CONFLICTING TERMS AND CONDITIONS. SELLER’S FAILURE TO OBJECT TO CONFLICTING OR ADDITIONAL TERMS WILL NOT CHANGE OR ADD TO THESE TERMS AND CONDITIONS. BUYER’S ACCEPTANCE OF THE PRODUCTS FROM SELLER SHALL ALSO BE DEEMED TO CONSTITUTE ACCEPTANCE OF THESE TERMS AND CONDITIONS. UNLESS OTHERWISE SPECIFIED IN THE QUOTATION, SELLER’S QUOTATION SHALL EXPIRE THIRTY (30) DAYS FROM ITS DATE AND MAY BE MODIFIED OR WITHDRAWN BY SELLER BEFORE RECEIPT OF BUYER’S CONFORMING ACCEPTANCE.
(A) “Buyer” means the entity to which Seller is providing Products under the Contract.
(B) “Contract” means either the contract agreement signed by both parties, or the purchase order signed by Buyer and accepted by Seller in writing, for the sale of Products, together with these Terms and Conditions, Seller’s final quotation, and Seller’s order acknowledgment. In the event of any conflict, these Terms and Conditions shall take precedence over any and all other documents included in the Contract.
(C) “Contract Price” means the agreed price stated in the Contract for the sale of Products, including adjustments (if any) in accordance with the Contract.
(D) “Product” or “Products” means the equipment, parts, materials, supplies, and other goods Seller has agreed to supply to Buyer under the Contract.
(E) “Seller” means the entity providing Products under the Contract.
(F) “Terms and Conditions” mean these “Terms and Conditions” together with any modifications or additional provisions specifically stated in Seller’s final quotation or specifically agreed upon by Seller in writing.
2. ORDERS AND BUYER’S LIABILITY FOR TAXES
(A) Orders. All orders placed by Buyer are subject to acceptance by Seller and shall expire within thirty (30) days from the date of issuance by the Buyer, unless earlier revoked by Buyer or accepted by Seller. Orders may not be canceled or rescheduled without Seller’s written consent. All orders must identify the Products, unit quantities, part numbers, applicable prices and requested delivery dates of the Products being purchased.
(B) Taxes. All prices quoted are inclusive of transportation, insurance costs, and all other taxes including federal, state and local sales, use and excise and value-added, goods and services taxes, and any other taxes of any kind whatsoever unless otherwise stated. Buyer agrees to indemnify and hold Seller harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation and taxes shall appear as separate items on Seller’s invoice.
3. DELIVERY, TITLE AND SHIPPING
(A) Delivery. Title and risk of loss pass to the Buyer upon delivery of the Product to the delivery carrier at the location of Seller. Buyer shall pay all delivery costs and charges or pay Seller’s standard shipping charges plus handling. Unless otherwise instructed by Buyer in writing, Seller shall select the carrier. Partial deliveries are permitted. Seller may deliver Products in advance of the delivery schedule. Delivery times are approximate and are dependent upon prompt receipt by Seller of all information necessary for delivery of the Products. Seller shall not be liable for any loss or expense (consequential or otherwise) incurred by Buyer as a result of any delay in delivery for any reason other than arbitrary refusal of Seller to perform. Seller may deliver Products in installments.
(B) Title and Risk of Loss. Title and risk of loss to Products purchased under these Terms and Conditions shall pass to Buyer upon delivery thereof to the carrier F.O.B. Origin at Seller’s location, whether or not the Products conform to the terms of the Contract. If Products delivered do not correspond in quantity, type or price to those itemized in the shipping invoice or documentation, Buyer shall so notify Seller in writing within 24 hours after receipt otherwise the Products shall be deemed to conform as to quantity, type and price. Seller’s delivery dates are estimates only and Seller is not liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of the Seller, nor shall the carrier be deemed an agent of the Seller. A delayed delivery of any part of an Order does not entitle Buyer to cancel other deliveries. If any shipment of Products is delayed at Buyer’s request, Seller may invoice Buyer for such Products, and risk of loss to such Products shall pass to Buyer on the date Seller is prepared to make shipment. Buyer shall, at its sole risk and expense, be required to arrange for or provide transportation of the Products from the place of delivery ex-works, to the Products’ final destination if it is other than the place of delivery.
(C) Seller Not Liable for Any Non-Delivery By Carrier. SELLER SHALL NOT BE LIABLE FOR ANY NON-DELIVERY OF THE PRODUCTS OR ANY FAILURE OF BUYER TO RECEIVE THE PRODUCTS FROM CARRIER. Buyer shall be responsible for any and all freight and restocking fees if delivery is not made within 24 hours at Buyers location. See section 7(B).
4. SECURITY AND RISK OF LOSS
(A) Title and risk of loss passes to Buyer pursuant to the terms of Section 3 of these Terms and Conditions.
(B) Seller shall retain a security interest in the Products, including any replacements, and all proceeds and products thereof until the Buyer pays the full purchase price (including taxes, delivery and additional charges). Buyer’s failure to pay any amount when due shall give Seller the right to repossess and remove the Products. Such repossession and removal shall be without prejudice to any of Seller’s other remedies at law or in equity. Buyer agrees that it shall do or cause to be done, execute and deliver, all such further acts and instruments as Seller may reasonably request at any time in order to perfect and protect Seller’s security interest in the Products, including, without limitation, a financing statement appropriate for filing.
(C) As collateral security for the full payment of the purchase price of the Products, Buyer hereby grants to Seller a lien on and security interest in and to all the right, title and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under Florida Uniform Commercial Code. Seller shall have the right to file any and all documents and take any action it deems necessary to fully establish protection of its security interest in the Products; however, the failure of Seller to file any such document shall not in any way act as a waiver of Seller’s right to such security interest.
(D) Seller shall have the right to repossess and remove the Products from any location where the Products may be located and recover all monies due and owing to Seller. Such repossession and removal shall be without prejudice to any of Seller’s other remedies at law or in equity.
5. CONTRACT PRICE
Buyer shall purchase the Products at the Contract Price. The prices of the Products are those prices specified on the front of the invoice or price quotation. Pricing for undelivered Products may increase in the event of an increase in Seller’s cost, change in market conditions or any other causes beyond the Seller’s reasonable control. Price quotations shall automatically expire in thirty (30) days from the date issued, or as otherwise stated in the quotation. Prices are subject to change and Seller shall thereafter notify Buyer of any price increases. In the event of a price increase, Buyer may cancel any undelivered portion of any order by written notice to Seller, provided such written notice is received by Seller not more than ten (10) days after Buyer’s receipt of Seller’s notice of price increase. Upon cancellation, Buyer shall pay Seller the Contract Price for all Products which have been completed or are in the process of completion. All prices shall be confidential and Buyer shall not disclose such prices to any unrelated party.(
6. PAYMENT AND DEFAULT
(A) Terms of payment are net 30/60/90 days with the method of payment specified in the invoice. Payment shall be made for the Products whether or not Buyer has made, or may make, any inspection or use of the Products.
(B) Buyer’s failure to make any payment when due in accordance with the terms of these Terms and Conditions shall constitute a default. For any and all unpaid invoices, Buyer shall pay interest on all late payments at the rate of 1.5% per month, calculated daily and compounded monthly. If Buyer fails to make each payment when it is due, Seller reserves the right to change or withdraw credit and thereby suspend or cancel performance under any or all purchase orders or agreements in which Seller has extended credit to Buyer. In the event of default by Buyer, Seller shall be entitled to costs, fees, and expenses, including but not limited to recovery of attorney fees, court costs and fees, and collection costs. In addition to all other remedies available under these Terms and Conditions or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Products if Buyer fails to pay any amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof.
(C) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
(D) If Buyer disputes any invoice or portion thereof, it shall notify Seller in writing within thirty (30) days of receipt of the invoice, detail the reason for the dispute, and pay all undisputed amounts. All charges not timely disputed in writing shall be deemed to be undisputed and shall be due and payable as set forth above.
(E) Any other material breach of these Terms and Conditions other than Payment as described in section 6(A) above, shall constitute a default. Any non-compliance with these Terms and Conditions shall be considered a material breach of these Terms and Conditions. Seller’s failure to declare a default for any breach of the Terms and Conditions set forth herein shall not be deemed a waiver of the Seller’s right to declare future defaults.
(F) Upon default by Buyer, Seller may terminate the Contract and/or these Terms and Conditions fifteen (15) days after providing written notice of the default to Buyer pursuant to Section 32 below.
7. CANCELLATION OF PURCHASE ORDER
(A) Cancellation. Buyer may cancel its order only with the prior written consent of Seller, which Seller may withhold in its sole discretion. Products listed as NC/NR status (Non-cancelable and Non-Returnable) are identified on the Order Acknowledgement for all other orders. All cancellations will be subject to payment to Seller of reasonable and proper cancellation charges.
(B) Restocking Fee for Returned Products. Buyer may return Products only at its sole cost and only with the prior written authorization of Seller, subject to a restocking fee constituting 15% of the Purchase Price. No returns of special, custom, or made-to-order Products will be permitted. No returns will be permitted more than sixty (60) days after delivery under any circumstances. Upon receipt and inspection of returned item(s), Seller will advise of the refund status.
(C) All Contract Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes.
8. LIMITED WARRANTY
Seller warrants that the Products are free from defect in material and workmanship at the time of shipment. Buyer is solely responsible for determining the appropriateness of any Products purchased. If, after inspection of the Products by Buyer, the goods are defective then Seller will, at its option, repair or replace the defective good or refund an appropriate portion of the Contract Price for the defective good. Seller shall have no obligation with respect to any defect in any of its Products unless it is notified within thirty (30) days after shipment of the Products stating the full particulars of the claim. Seller shall have the right to inspect the goods alleged to be defective on Buyer’s premises or, at Seller’s request, at Seller’s designated facility. The remedy of repair, replace or refund provided for herein is the sole and exclusive remedy of Buyer for a defective good. THE FOREGOING WILL BE THE SOLE AND EXCLUSIVE REMEDY OF BUYER WHETHER IN CONTRACT, TORT, OR OTHERWISE, AND SELLER WILL NOT BE LIABLE FOR INJURIES OR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM ANY CAUSE WHATSOEVER. THIS LIMITATION APPLIES TO ALL PRODUCTS DURING AND AFTER THE WARRANTY PERIOD. IN NO EVENT WILL SELLER BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR COMMERCIAL LOSSES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. To the extent the limitation or exclusion of liabilities or damages contained herein is not permitted under applicable law, this limited warranty will apply to the maximum extent allowed by applicable law.
9. LIMITATION OF WARRANTY
The limited warranty does not extend to any Products manufactured by Seller which have been subjected to misuse, neglect, accident, improper testing or installation, unauthorized repair, or alteration, whether by Buyer or others. This warranty shall not be expanded, and no obligation or liability will arise, due to technical advice or assistance, qualification or testing data or services Seller may provide in connection with Buyer’s purchase.
10. DISCLAIMER OF WARRANTY
THE ABOVE WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND ALL OTHER OBLIGATIONS OR LIABILITIES OF SELLER, ALL IMPLIED WARRANTIES, TERMS AND CONDITIONS (WHETHER STATUTORY OR OTHERWISE) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. IN PARTICULAR, SELLER MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS.
IN NO EVENT SHALL SELLER’S TOTAL LIABILITY TO BUYER, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, EXCEED THE PRICE OF THE PARTICULAR PRODUCTS SOLD HEREUNDER WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. IN NO EVENT WILL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES.
All Products are sold for commercial use only and are not intended for use by consumers. Accordingly, Seller disclaims all warranties to consumers, as defined by the Magnuson-Moss Act and/or applicable Canadian Consumer Protection Act. Seller shall not be liable for any improper use, installation or maintenance of the Products by Buyer.
11. LIMITATION OF LIABILITY
(A) NOTWITHSTANDING ANY CONTRARY STATUTE OF LIMITATIONS, IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(B) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER OR, AS TO SERVICES, FOR THE AMOUNTS PAID TO SELLER FOR SERVICES PERFORMED HEREUNDER.
(C) This limitation of liability is a material basis for the parties’ bargain and reflects the bargained-for allocation of risks between Seller and Buyer, without which Seller would not have agreed to provide the Products at the price charged.
12. TECHNICAL ASSISTANCE OR ADVICE
If technical assistance or advice are offered or given to Buyer, such assistance or advice is given free of charge and only as an accommodation to Buyer. Seller shall not be held liable for the content or Buyer’s use of such technical assistance or advice nor shall any statement made by any of Seller’s representatives in connection with the Products or Services constitute a representation or warranty, express or implied.
13. ADEQUATE ASSURANCE & TERMINATION
(A) Adequate Assurance. Seller reserves the right by written notice to cancel any order or require full or partial payment or adequate assurance of performance from Buyer without liability to Seller in the event of: (i) Buyer’s insolvency, (ii) Buyer’s filing of a voluntary petition in bankruptcy, (iii) the appointment of a receiver or trustee for Buyer or (iv) the execution by Buyer of an assignment for the benefit of creditors. Seller reserves its right to suspend its performance until payment or adequate assurance of performance is received and also reserves its right to cancel Buyer’s credit at any time for any reason.
(B) Termination. In addition to any remedies that may be provided under these Terms and Conditions, Seller may terminate any contract with Buyer with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under any contract and such failure continues for thirty (30) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms and Conditions, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
14. COMPLIANCE WITH LAWS
(A) Buyer acknowledges that Products may be used in various jurisdictions for various applications subject to disparate regulations and therefore that Seller cannot warrant compliance with all applicable laws and regulations. Seller disclaims any representation or warranty that the Products conform to federal, state or local laws, regulations, ordinances, codes or standards, except as expressly set forth by Seller in writing. Buyer shall comply with all applicable laws, regulations and ordinances.
(B) The Products covered by a quotation and/or order may be subject to various laws including U.S. and foreign export controls. Seller is committed to complying with all relevant export laws. If these items are of United States origin and are being exported from the United States, the following statement applies, “These commodities, technology or software were exported from the United States in accordance with the Export Administration Regulations. Diversion contrary to U.S. law is prohibited.” Buyer is responsible for applying for export licenses, if required, based on end user or country of ultimate destination. Seller’s obligations are conditioned upon Buyer’s compliance with all U.S. and other applicable trade control laws and regulations. Buyer shall not trans-ship, re-export, divert or direct Products other than in and to the ultimate country of destination declared by Buyer and specified as the country of ultimate destination on Seller’s invoice. Buyer agrees to indemnify and hold Seller harmless from any and all costs, liabilities, penalties, sanctions and fines related to non-compliance with applicable export laws and regulations.
(C) Buyer represents and warrants that it is not subject to any trade sanctions imposed by the U.S., EU and/or UN and that it is in compliance and shall comply with all applicable laws and regulations relating to trade restrictions and/or export controls (including trade sanctions imposed by the US, EU and/or UN) with respect to Products sold hereunder, and shall provide evidence of compliance with the foregoing as Seller may reasonably request from time to time.
(D) Buyer represents and warrants that it is in compliance and shall comply with all applicable anti-bribery and anti-corruption laws, including the U.S. Foreign Corrupt Practices Act, and has not, directly or indirectly, offered, paid, promised, or authorized the giving of money or anything of value to any government official for the purpose of influencing any act or decision of such government official. Buyer is not on, nor is Buyer associated with any organization that is on, any list of entities maintained by the United States government that identifies parties to which the sale of goods or services is restricted or prohibited.
15. AMENDMENT AND MODIFICATION
These Terms and Conditions may only be amended or modified in writing which specifically states that it amends these Terms and Conditions and is signed by an authorized representative of each party.
No waiver by Seller of any of the provisions of these Terms and Conditions is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms and Conditions operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
17. CONFIDENTIAL INFORMATION
All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with these Terms and Conditions is confidential, solely for the use of Buyer and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
18. FORCE MAJEURE
Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached any contract or these Terms and Conditions, for any failure or delay in fulfilling or performing any term of any contract with Buyer when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, hurricanes, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, national emergencies, epidemic, pandemic, outbreak of any communicable disease, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Buyer shall not assign any of its rights or delegate any of its obligations under these Terms and Conditions without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Contract.
20. RELATIONSHIP OF THE PARTIES
The relationship between the parties is that of independent contractors. Nothing contained in these Terms and Conditions shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Buyer shall defend, indemnify and hold Seller, and its subsidiaries or affiliates, and their trustees, officers, employees and agents, harmless from and against any and all loss, lawsuit, liability, damage, cost and expense (including legal fees) which may arise out of, relate to, in connection with, or result from: (i) claims by third persons against Seller that the Products provided hereunder caused damage to property or bodily injury (including death); (ii) the willful misconduct or any acts or omissions of Seller, its agents or employees in connection with the Contract and these Terms and Conditions; (iii) any defect in the Equipment, or (iv) any breach or default in the performance of Seller’s obligations. The provisions of this Section shall survive expiration or termination of these Terms and Conditions. Buyer’s indemnification obligation hereunder shall not apply to the extent that any claim is caused by the negligence or misconduct of Buyer.
22. LIMITATION ON ACTIONS BROUGHT BY BUYER
NO ACTION, REGARDLESS OF FORM, ARISING OUT OF, RELATING TO OR IN CONNECTON WITH THIS CONTRACT OR THE SALE OF THE PRODUCTS TO BUYER MAY BE BROUGHT BY BUYER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE.
23. GOVERNING LAW
All matters arising out of or relating to these Terms and Conditions are governed by and construed in accordance with the laws of the State of Florida without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction.
24. INFORMAL DISPUTE RESOLUTION, JURISDICTION, VENUE, AND GOVERNING LAW
(A) MANDATORY ABRBITRATION. If any dispute between Buyer and Seller is unresolved within thirty (30) days from the date of the notice set forth in section 24 above that requires direct negotiations, then any dispute arising under, relating to, or in connection with the sale of the Products or these Terms and Conditions shall be finally settled by binding arbitration. Any and all disputes, claims, or controversies whatsoever based on contract, tort, statutory, constitutional or other legal rights or for any losses, damages or expenses, relating to or in any way arising out of or connected with the sale of the Products and these Terms and Conditions no matter how described, pleaded or styled, between the Buyer and Seller in which Seller or any other claimant asserts damages (excluding attorney fees, costs, and interest, which are not included to determine the amount at issue) shall be referred to and resolved exclusively by binding arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1, et seq., (“FAA”) solely in Broward County, Florida, U.S.A. to the exclusion of any other forum. Buyer hereby consents to such exclusive jurisdiction and waives any jurisdictional, venue or other objection that may be available to any such arbitration proceeding in Broward County, Florida. The arbitration shall be administered by National Arbitration and Mediation (“NAM”) under its Comprehensive Dispute Resolution Rules and Procedures and the fee schedule in effect at the time of initiating the proceeding with NAM, which are deemed to be incorporated herein by reference. Each party shall bear their own costs and fees associated with any such filing.
NEITHER PARTY WILL HAVE THE RIGHT TO A JURY TRIAL OR TO ENGAGE IN PRE-ARBITRATION DISCOVERY EXCEPT AS PROVIDED IN THE APPLICABLE ARBITRATION RULES AND HEREIN, OR OTHERWISE TO LITIGATE THE CLAIM IN ANY COURT. THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING. OTHER RIGHTS THAT BUYER OR SELLER WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION. An award rendered by an arbitrator may be entered in any court having jurisdiction under the Convention or FAA. Buyer and Seller further agree to permit the taking of a deposition under oath of the Buyer asserting the claim, or for whose benefit the claim is asserted, in any such arbitration. In the event this provision is deemed unenforceable by an arbitrator or court of competent jurisdiction for any reason, then and only then the provisions of Section 26(C) below governing venue and jurisdiction shall exclusively apply to any lawsuit involving claims described in this Clause.
The Arbitrator may award attorney’s fees to Seller in the event Seller is required to collect any unpaid amounts due from Buyer.
(B) SUBMISSION TO JURISDICTION. If a Court of competent jurisdiction finds that the Arbitration clause provision set forth in Section 26(A)-(B) above is inapplicable, unenforceable, and/or invalid for any reason, it is agreed by and between Buyer and Seller that all disputes and matters whatsoever arising under, in connection with or incident to the sale of the Products or and these Terms and Conditions shall be litigated, if at all, before the United States District Court for the Southern District of Florida in Ft. Lauderdale, or as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Broward County, Florida, U.S.A. to the exclusion of the Courts of any other county, state or country. Buyer hereby consents to such exclusive jurisdiction and waives any jurisdictional, venue or other objection that may be available.
25. CLASS ACTION WAIVER
THESE TERMS AND CONDITIONS PROVIDE FOR THE EXCLUSIVE RESOLUTION OF DISPUTES THROUGH INDIVIDUAL LEGAL ACTION AND SUPERSEDES ANY LAW ENTITLING BUYER TO PARTICIPATE IN A CLASS ACTION. THIS CLASS ACTION WAIVER PRECLUDES BUYER FROM PARTICIPATING IN OR BEING REPRESENTED IN ANY CLASS OR REPRESENTATIVE ACTION REGARDING ANY CLAIM BROUGHT UNDER THESE TERMS AND CONDITIONS OR IN CONNECTION WITH THE SALE OF THE PRODUCTS. EVEN IF APPLICABLE LAW PROVIDES OTHERWISE, BUYER AGREES THAT ANY ARBITRATION OR LAWSUIT AGAINST SELLER WHATSOEVER SHALL BE LITIGATED BY BUYER INDIVIDUALLY AND NOT AS A MEMBER OF ANY CLASS OR AS PART OF A CLASS ACTION. BUYER EXPRESSLY AGREES TO WAIVE AUTHORITY TO ARBITRATE CLAIMS ON A CLASS ACTION BASIS. IF BUYER’S CLAIM IS SUBJECT TO ARBITRATION UNDER SECTION 26 ABOVE, BUYER FURTHER AGREES AND ACKNOWLEDGES THAT THE CLASS ACTION WAIVER IS MATERIAL AND ESSENTIAL TO THE ARBITRATION OF ANY DISPUTES BETWEEN THE PARTIES AND IS NON-SEVERABLE FROM THE AGREEMENT TO ARBITRATE CLAIMS. THE VALIDITY AND EFFECT OF THIS CLASS ACTION WAIVER MAY BE DETERMINED ONLY BY A JUDGE OR COURT OF LAW AND NOT BY AN ARBITRATOR. BUYER AGREES THAT THIS SECTION SHALL NOT BE SEVERABLE UNDER ANY CIRCUMSTANCES FROM THE ARBITRATION CLAUSE SET FORTH IN SECTION 26 ABOVE, AND IF FOR ANY REASON THIS CLASS ACTION WAIVER IS UNENFORCEABLE AS TO ANY PARTICULAR CLAIM, THEN AND ONLY THEN SUCH CLAIM SHALL NOT BE SUBJECT TO ARBITRATION. BUYER AGREES THAT SELLER CAN RECEIVE IMMEDIATE JUDICIAL ASSISTANCE TO ENFORCE THIS CLASS ACTION WAIVER.
If any term or provision of these Terms and Conditions is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms and Conditions which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms and Conditions including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Governing Law, Indemnification, Submission to Jurisdiction/Arbitration and Survival.
28. COMPLETE AGREEMENT
These Terms and Conditions constitute the entire agreement between Buyer and Seller relating to the subject matter hereof, and supersede all prior and contemporaneous discussions, understandings, and agreements related to the subject matter hereof.
The parties have expressly requested that these Terms and Conditions and all related documents be drafted in the English language.
All notices, requests, consents and other communications required or permitted under these Terms and Conditions shall be in writing and shall be sent by courier or certified mail, to Buyer and Seller at their respective addresses. Notices to Seller shall be sent to: 8010 W. Sample Road, Coral Springs, FL 33065. Notices to Buyer shall be sent to the address listed on Buyer’s purchase order. Either party may change its address by providing written notice to the other.