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These
Terms and Conditions shall constitute the sole and exclusive
Agreement (“Agreement”) in regard to the
goods purchased by Purchaser from Aquasyn California
LLC, a California limited liability company (“Aquasyn”).
1. Purchaser is solely responsible for determining whether
the goods ordered and purchased from Aquasyn are suitable
for their intended application. Aquasyn makes no representation
or warranty concerning the suitability of any goods
for any particular project or application. Aquasyn has
no control over the actual use of the goods purchased
and, therefore, shall have no liability. Purchaser shall
be solely responsible and assumes all risk of loss arising
out of or relating to the use of the goods purchased.
Purchaser shall be solely responsible for developing
a maintenance schedule for the goods purchased. Any
statements by Aquasyn or its employees, representatives,
consultants or advisors are only general comments and
shall not constitute recommendations, representations,
warranties, binding agreements or anything that would
cause Aquasyn to be liable for any reason.
2. All prices exclude excise, sales, use, G.S.T., or
similar taxes, freight, other delivery expenses, insurance
charges and duties, all of which shall be borne by Purchaser.
Any notice canceling or rescheduling any portion of
a purchase order must be in writing and, unless such
notice is received by Aquasyn at least fourteen (14)
days prior to the scheduled shipment date, Purchaser
shall be subject to Aquasyn’s standard cancellation,
rescheduling and restocking charges and policies in
effect from time to time.
4. Shipment shall be F.O.B. at Aquasyn’s warehouse
in Los Angeles County, California. Purchaser assumes
all risk of loss upon delivery of the goods by Aquasyn
to Purchaser or its agents or shippers at Aquasyn’s
warehouse. Aquasyn reserves the right to make deliveries
in installments. All such installments shall be separately
invoiced and paid for when due without regard to subsequent
deliveries. Delay in delivery of any installment shall
not relieve Purchaser of its obligation to accept remaining
deliveries. Purchaser shall have seven (7) days from
the date of delivery within which to notify Aquasyn
of any nonconforming goods, defective materials, workmanship
or shortages in the goods delivered. No goods may be
eturned unless the Purchaser notifies Aquasyn within
said seven (7) day time period and Aquasyn authorizes
the return. All returned goods must be shipped freight
prepaid by Purchaser. All shipping and restocking charges
on any goods improperly rejected shall be paid by Purchaser.
5. On approved credit, Purchaser shall pay Aquasyn for
all goods delivered to Purchaser within thirty (30)
days of delivery by Aquasyn. In the absence of approved
credit, all goods shall be paid for in cash on delivery
in advance unless the Purchaser and Aquasyn expressly
agree otherwise in writing. All references to money
amounts herein, unless otherwise specified, shall be
in United States currency. All payments shall be made
in United States dollars at the closing rate of exchange
for the United States dollar at the primary bank of
Aquasyn on the day preceding the date on which payment
is made to Aquasyn as required by this Agreement. Failure
to make payment pursuant to the terms provided for herein
shall constitute a default by Purchaser which shall
give Aquasyn the right to elect to terminate its obligation
to ship further goods to Purchaser or request adequate
assurances from Purchaser. If Aquasyn requests adequate
assurances from Purchaser, Aquasyn shall have the sole
and absolute discretion as to whether such assurances,
if any, are adequate. Aquasyn reserves the right to
reject orders and withhold shipment in the event Purchaser’s
account is past due. Payments past due shall bear interest
on the daily balance at the rate of one and one-half
percent (1.5%) per month (18% APR) or the maximum rate
permitted by law, whichever is lower.
6. DISCLAIMER AND LIMITATION OF LIABILITY. AQUASYN GRANTS
NO WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY
OR OTHERWISE, REGARDING THE GOODS, THEIR FITNESS FOR
ANY PURPOSE, QUALITY OR MERCHANTABILITY ALL OF WHCH
ARE HEREBY ISCLAIMED. AQUASYN SHALL NOT BE LIABLE FOR
ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, INCIDENTAL OR
INDIRECT DAMAGES, LOST PROFITS, THE COSTS OF PROCUREMENT
OF SUBSTITUTE PRODUCTS OR SERVICES HOWEVER CAUSED, OR
ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF
THIS AGREEMENT. PURCHASER AGREES THAT AQUASYN’S
LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM
OF ACTION, SHALL IN NO EVENT EXCEED THE PRICE PAID BY
THE PURCHASER FOR THE SUBJECT GOODS. THIS LIMITATION
SHALL APPLY EVEN IF AQUASYN HAS BEEN ADVISED IN ADVANCE
OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING
ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY
PROVIDED HEREIN.
7. Aquasyn shall not be responsible for any delays or
failure to perform caused by government orders or requirements,
transportation conditions, labor or material shortages,
supplier delays, strikes, riots, fires, weather, acts
of God, terrorist acts, or any other cause beyond the
reasonable control of Aquasyn and Aquasyn’s performance
shall be excused and this Agreement shall be deemed
suspended during the continuance of such prevention
and for a reasonable time thereafter. If the output
or operations of Aquasyn or its suppliers is reduced
by any such cause, then Aquasyn may allocate goods among
its customers in a manner and to an extent that Aqusayn
deems equitable in its sole and absolute discretion.
8. The relationship of Aquasyn and Purchaser established
by this Agreement is that of vendor and purchaser and
nothing contained herein shall be construed so as to
create a partnership, joint venture or franchisor-franchisee
relationship.
9. The provisions set forth herein, may not be supplemented,
modified or amended in any manner, except by an instrument
in writing stating that it is a supplement, modification
or amendment of these provisions and signed by each
party hereto. The terms and conditions on any purchase
order forms issued by Purchaser shall not be deemed
to be a part of this Agreement and shall not e deemed
to modify or supplement this Agreement in any way, notwithstanding
the fact that Aquasyn may acknowledge or otherwise approve
such purchase orders. No waiver of any of these provisions
shall be deemed or constitute a waiver of any other
provision, whether or not similar, nor shall any waiver
constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
10. In any action arising out of or relating to the
terms, conditions, interpretation, construction or enforcement
of this Agreement, the prevailing party in such action
shall be entitled, in addition to all other relief awarded
therein, to its actual attorney’s fees paid or
incurred. Any and all controversies claims and disputes
arising out of or relating to this Agreement, or the
breach thereof, shall be settled by binding arbitration
in the County of Los Angeles, State of California, in
accordance with the Commercial Arbitration Rules of
the American Arbitration Association then in effect.
The arbitration shall be conducted by one (1) arbitrator
who is a retired judge or an attorney licensed to practice
law in California with at least fifteen (15) years commercial
law experience. The arbitration award made in accordance
with these provisions shall be final and binding and
not subject to appeal. The arbitrator’s award
shall be in the form of findings of fact and conclusions
of law. Judgment may be entered to enforce the award
in any court of competent jurisdiction and the party
against whom such award is made waives all rights of
objection to such enforcement. The prevailing party
in any arbitration shall be entitled to an award of
its attorneys’ fees.
11. Neither party hereto, nor any of their employees,
agents or representatives has made any statements, promises
or agreements verbally or in writing in conflict with
the terms set forth herein. Any and all representations
by either of the parties or their employees, agents
or representatives made during negotiations, which representations
are not contained herein, shall not be binding upon
either of the parties hereto. This Agreement contains
the entire agreement between the parties. Time is of
the essence of this Agreement and all of the terms,
provisions, covenants and conditions hereof.
12. This Agreement shall be deemed to have been made
under, and shall be construed and interpreted in accordance
with the laws of the State of California without reference
to principles of conflicts of laws. The parties expressly
disclaim the provisions of the United Nations Convention
for the International Sales of Goods. The English language
version of this Agreement shall be controlling for all
purposes. In the event that any provision hereof is
deemed to be illegal or unenforceable, such a determination
shall not affect the validity or enforceability of the
remaining provisions, hereof, all of which shall remain
in full force and effect. The rights, duties and obligations
of each of the parties shall not be
assigned without the consent of all the parties. |
