Important Information About These Terms and
Conditions
These Terms and Conditions constitute a binding contract between
Customer and Seller and are referred to herein as either "Terms and
Conditions" or this "Agreement". Customer accepts these Terms and
Conditions by making a purchase from or placing an order with Seller or
shopping on any Seller Website including eBay and Amazon Stores or
Mobile Application (each, a "Site") or otherwise requesting products
(the "Products") or engaging Seller to perform or procure any Services
(as this and all capitalized terms are defined herein). These Terms and
Conditions are subject to change without prior notice, except that the
Terms and Conditions posted on a Site at the time Customer places an
order or signs a Statement of Work will govern the order in question,
unless otherwise agreed in writing by Seller and Customer.
Customer consents to receiving electronic records, which may be
provided via a Web browser or e-mail application connected to the
Internet; individual consumers may withdraw consent to receiving
electronic records or have the record provided in non-electronic form
by contacting Seller. In addition, Internet connectivity requires
access services from an Internet access provider. Contact your local
access provider for details. Electronic signatures (or copies of
signatures sent via electronic means) are the equivalent of written and
signed documents.
Customer may issue a purchase order for administrative purposes only.
Additional or different terms and conditions contained in any such
purchase order will be null and void. No course of prior dealings
between the parties and no usage of trade will be relevant to determine
the meaning of these Terms and Conditions or any purchase order or
invoice, or any document in electronic or written form that is signed
and delivered by each of the parties for the performance of Services
other than Third Party Services (each, a "Statement of Work"). This
Agreement contains the entire understanding of the parties with respect
to the matters contained herein and supersedes and replaces in its
entirety any and all prior communications and contemporaneous
agreements and understandings, whether oral, written, electronic or
implied, if any, between the parties with respect to the subject matter
hereof.
Governing Law
THESE TERMS AND CONDITIONS, ANY
STATEMENTS OF WORK, THE SERVICES HEREUNDER AND ANY SALE OF PRODUCTS
HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW JERSEY,
WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT
OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN BERGEN
COUNTY, NEW JERSEY, AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE
FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION
THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS
TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT
TO ANY SUCH PROCEEDING. Except in the case of nonpayment,
neither party may institute any action in any form arising out of these
Terms and Conditions more than one (1) year after the cause of action
has arisen. The rights and remedies provided Seller under these Terms
and Conditions are cumulative, are in addition to, and do not limit or
prejudice any other right or remedy available at law or in equity.
Risk of Loss
If Customer provides Seller with Customer’s carrier account number or
selects a carrier other than a carrier that regularly ships for Seller,
title to Products and risk of loss or damage during shipment pass from
Seller to Customer upon delivery to the carrier (F.O.B. Origin, freight
collect). For all other shipments, title to Products and risk of loss
or damage during shipment pass from Seller to Customer upon delivery to
the specified destination (F.O.B. Destination, freight prepaid and
added). Notwithstanding the foregoing, title to software will remain
with the applicable licensor(s), and Customer's rights therein are
contained in the license agreement between such licensor(s) and
Customer.
Services
Customers may order services (collectively, "Services") from or through
Seller from time to time. Certain Services, including, but not limited
to, extended warranty service by manufacturers, are sold by Seller as a
distributor or sales agent ("Third Party Services").
In the case of Third Party Services, the third party shall be the party
responsible for providing the services to the Customer and Customer
will look solely to the third party for any loss, claims or damages
arising from or related to the provision of such Third Party Services.
Customer hereby releases Seller and the entities that control, are
controlled by, or are under common control with Seller ("Affiliates")
from any and all claims arising from or relating to the purchase or
provision of any such Third Parties Services. Any amounts, including,
but not limited to, taxes, associated with Third Party Services which
may be collected by Seller will be collected solely in the capacity as
an independent sales agent.
Where Services are ordered in a Statement of Work, each Statement of
Work hereby incorporates these Terms and Conditions and constitutes a
separate agreement with respect to the Services performed. Seller, or
any of its Affiliates on behalf of Seller, may execute a Statement of
Work. In the event of an addition to or a conflict between any term or
condition of the Statement of Work and these Terms and Conditions, the
terms and conditions of this Agreement will control, except as
expressly amended in the applicable Statement of Work by specific
reference to this Agreement. Each such amendment will be applicable
only with respect to such Statement of Work and not to future
Statements of Work. Changes to the scope of the Services described in a
Statement of Work will be made only in a writing executed by authorized
representatives of both parties. Seller will have no obligation to
commence work in connection with any such change, unless and until the
change is agreed upon in that writing executed by both parties. All
such changes to the scope of the Services will be governed by these
Terms and Conditions and the applicable Statement of Work. Each
Statement of Work may be signed in separate counterparts each of which
shall be deemed an original and all of which together will be deemed to
be one original.
Cooperation
In addition to any specific Customer duties set forth in any applicable
Statement of Work, Customer agrees to cooperate with Seller in
connection with performance of the Services by providing (i) timely
responses to Seller's inquiries and requests for approvals and
authorizations, (ii) access to any information or materials reasonably
requested by Seller which are necessary or useful as determined by
Seller in connection with providing the Services, including, but not
limited to, physical and computer access to Customer's computer
systems, and (iii) all Required Consents necessary for Seller to
provide the Services. "Required Consents" means consents or approvals
required to give Seller, its Affiliates, and its and their
subcontractors the right or license to access, use and modify all data
and third party products. Customer acknowledges and agrees that the
Services are dependent upon the completeness and accuracy of
information provided by Customer and the knowledge and cooperation of
the agents, employees or subcontractors (“Personnel”) engaged or
appointed by Customer who are selected by Customer to work with Seller.
Seller will follow all reasonable Customer security rules and
procedures, as communicated in writing by Customer to Seller from time
to time.
Access
Seller may perform the Services at Customer's place of business, at
Seller's own facilities or such other locations as Seller and Customer
deem appropriate. When the Services are performed at Customer's
premises, Seller will attempt to perform such Services within
Customer's normal business hours unless otherwise jointly agreed to by
the parties. Customer will also provide Seller access to Customer's
staff and any other Customer resources (and when the Services are
provided at another location designated by Customer, the staff and
resources at such location) that Seller determines are useful or
necessary for Seller to provide the Services. When the Services are
provided on Customer's premises or at another location designated by
Customer, Customer agrees to maintain adequate insurance coverage to
protect Seller and Customer's premises and to indemnify and hold Seller
and its Affiliates, and its and their agents and employees harmless
from any loss, cost, damage or expense (including, but not limited to,
attorneys' fees and expenses) arising out of any product liability,
death, personal injury or property damage or destruction occurring at
such location in connection with the performance of the Services, other
than solely as a result of Seller's gross negligence or willful
misconduct.
Payment
Orders are not binding upon Seller until accepted by Seller. Customer
agrees to pay the total purchase price for the Products plus shipping
(to the extent shipping is not prepaid by Customer), including shipping
charges that are billed to Seller as a result of using Customer's
carrier account number. Terms of payment are within Seller's sole
discretion. In connection with Services being performed pursuant to a
Statement of Work, Customer will pay for the Services in the amounts
and in accordance with any payment schedule set forth in the applicable
Statement of Work. If no payment schedule is provided, Customer will
pay for the Services as invoiced by Seller. Invoices are due and
payable within the time period specified on the invoice, measured from
the date of invoice, subject to continuing credit approval by Seller.
Seller, or any of its Affiliates on behalf of Seller may issue an
invoice to Customer. Seller may invoice Customer separately for partial
shipments, and Seller may invoice Customer for all of the Services
described in a Statement of Work or any portion thereof. Customer
agrees to pay interest on all past-due sums at the lower of one and
one-half percent (1.5%) per month or the highest rate allowed by law.
Customer will pay for, and will indemnify and hold Seller and its
Affiliates harmless from, any applicable sales, use, transaction,
excise or similar taxes and any federal, state or local fees or charges
(including, but not limited to, environmental or similar fees), imposed
on, in respect of or otherwise associated with any Statement of Work,
the Products or the Services. Customer must claim any exemption from
such taxes, fees or charges at the time of purchase and provide Seller
with the necessary supporting documentation. In the event of a payment
default, Customer will be responsible for all of Seller’s costs of
collection, including, but not limited to, court costs, filing fees and
attorneys’ fees. In addition, if payments are not received as described
above, Seller reserves the right to suspend Services until payment is
received. Customer hereby grants to Seller a security interest in the
Products to secure payment in full. Customer authorizes Seller to file
a financing statement reflecting such security interest.
Except as otherwise specified on an applicable Statement of Work,
Customer will reimburse Seller for all reasonable out-of-pocket
expenses incurred by Seller in connection with the performance of the
Services, including, but not limited to, travel and living expenses.
Export Sales
If this transaction involves an export of items (including, but not
limited to, commodities, software or technology) subject to the Export
Administration Regulations, such items were exported from the United
States by Seller in accordance with the Export Administration
Regulations. Customer agrees that it will not divert, use, export or
re-export such items contrary to United States law. Customer expressly
acknowledges and agrees that it will not export, re-export, or provide
such items to any entity or person within any country that is subject
to United States economic sanctions imposing comprehensive embargoes
without obtaining prior authorization from the United States
Government. The list of such countries subject to United States
economic sanctions or embargoes may change from time to time but
currently includes Cuba, Iran, Sudan, and Syria. Customer also
expressly acknowledges and agrees that it will not export, re-export,
or provide such items to entities and persons that are ineligible under
United States law to receive such items, including but not limited to,
any person or entity on the United States Treasury Department’s list of
Specially Designated Nationals or on the United States Commerce
Department’s Denied Persons List, Entity List, or Unverified List. In
addition, manufacturers' warranties for exported Products may vary or
may be null and void for Products exported outside the United States.
Warranties
Customer understands that Seller is not the manufacturer of the
Products purchased by Customer hereunder and the only warranties
offered are those of the manufacturer, not Seller or its Affiliates. In
purchasing the Products, Customer is relying on the manufacturer’s
specifications only and is not relying on any statements,
specifications, photographs or other illustrations representing the
Products that may be provided by Seller or its Affiliates. SELLER AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM
ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO PRODUCTS,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF
NONINFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES. THE
DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY
MANUFACTURER'S WARRANTY. Customer expressly waives any
claim that it may have against Seller or its Affiliates based on any
product liability or infringement or alleged infringement of any
patent, copyright, trade secret or other intellectual property rights
(each a “Claim”) with respect to any Product and also waives any right
to indemnification from Seller or its Affiliates against any such Claim
made against Customer by a third party. Customer acknowledges that no
employee of Seller or its Affiliates is authorized to make any
representation or warranty on behalf of Seller or any of its Affiliates
that is not in this Agreement.
Seller warrants that the Services will be performed in a good and
workmanlike manner. Customer's sole and exclusive remedy and Seller's
entire liability with respect to this warranty will be, at the sole
option of Seller, to either (a) use its reasonable commercial efforts
to reperform or cause to be reperformed any Services not in substantial
compliance with this warranty or (b) refund amounts paid by Customer
related to the portion of the Services not in substantial compliance;
provided, in each case, Customer notifies Seller in writing within five
(5) business days after performance of the applicable Services. EXCEPT AS SET FORTH HEREIN OR IN ANY STATEMENT OF WORK
THAT EXPRESSLY AMENDS SELLER'S WARRANTY, AND SUBJECT TO APPLICABLE LAW,
SELLER MAKES NO OTHER, AND EXPRESSLY DISCLAIMS ALL OTHER,
REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS, EITHER EXPRESS OR
IMPLIED (INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED
WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE,
MERCHANTABILITY, DURABILITY, TITLE, ACCURACY OR NON-INFRINGEMENT)
ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE
SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY RELATING TO THIRD
PARTY SERVICES, ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY
HARDWARE OR SOFTWARE USED IN PERFORMING SERVICES AND ANY WARRANTY
CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES. THIS
DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND
LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIVE OF SELLER OR OF ITS
AFFILIATES IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON
BEHALF OF SELLER OR ANY OF ITS AFFILIATES THAT IS NOT IN THIS AGREEMENT
OR IN A STATEMENT OF WORK EXPRESSLY AMENDING SELLER'S WARRANTY.
Customer shall be solely responsible for daily back-up and other
protection of its data and software against loss, damage or corruption.
Customer shall be solely responsible for reconstructing data (including
but not limited to data located on disk files and memories) and
software that may be lost, damaged or corrupted during the performance
of Services. SELLER, ITS AFFILIATES, AND ITS
AND THEIR SUPPLIERS, SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED AND
SHALL CONTINUE TO BE RELEASED FROM ALL LIABILITY IN CONNECTION WITH THE
LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE, AND CUSTOMER ASSUMES
ALL RISK OF LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE IN ANY WAY
RELATED TO OR RESULTING FROM THE SERVICES.
Seller will not be responsible for and no liability shall result to
Seller or any of its Affiliates for any delays in delivery or in
performance which result from any circumstances beyond Seller’s
reasonable control, including, but not limited to, Product
unavailability, carrier delays, delays due to fire, severe weather
conditions, failure of power, labor problems, acts of war, terrorism,
embargo, acts of God or acts or laws of any government or agency. Any
shipping dates or completion dates provided by Seller or any purported
deadlines contained in a Statement of Work or any other document are
estimates only.
Pricing Information; Availability Disclaimer
Seller reserves the right to make adjustments to pricing, Products and
Service offerings for reasons including, but not limited to, changing
market conditions, Product discontinuation, Product unavailability,
manufacturer price changes, supplier price changes and errors in
advertisements. All orders are subject to Product availability and the
availability of Personnel to perform the Services. Therefore, Seller
cannot guarantee that it will be able to fulfill Customer’s orders. If
Services are being performed on a time and materials basis, any
estimates provided by Seller are for planning purposes only.
Credits
Any credit issued by Seller to Customer for any
reason must be used within two (2) years from the date that the credit
was issued and may only be used for future purchases of Products and/or
Services. Any credit or portion thereof not used within the two (2)
year period will automatically expire.
Limitation of Liability
UNDER NO CIRCUMSTANCES AND
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET
FORTH HEREIN, WILL SELLER, ITS AFFILIATES OR ITS OR THEIR SUPPLIERS,
SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT,
SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED
TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS , EVEN IF SELLER HAS
BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES
ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH
LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE,
STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS
OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM
ARISING OUT OF OR IN CONNECTION WITH CUSTOMER'S IMPLEMENTATION OF ANY
CONCLUSIONS OR RECOMMENDATIONS BY SELLER OR ITS AFFILIATES BASED ON,
RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE PRODUCTS OR
SERVICES; OR (D) ANY UNAVAILABILITY OF THE PRODUCT FOR USE OR ANY LOST,
DAMAGED OR CORRUPTED DATA OR SOFTWARE. IN THE EVENT OF ANY LIABILITY
INCURRED BY SELLER OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF
SELLER AND ITS AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL
NOT EXCEED THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR
THE PRODUCT(S) GIVING RISE TO THE CLAIM OR THE SPECIFIC SERVICES GIVING
RISE TO THE CLAIM; OR (B) $10,000.00.
Limited License
Customer's sole rights to the work product, materials and other
deliverables to be provided or created (individually or jointly) in
connection with the Services, including but not limited to, all
inventions, discoveries, methods, processes, formulae, ideas, concepts,
techniques, know-how, data, designs, models, prototypes, works of
authorship, computer programs, proprietary tools, methods of analysis
and other information (whether or not capable of protection by patent,
copyright, trade secret, confidentiality, or other proprietary rights)
or discovered in the course of performance of this Agreement that are
embodied in such work or materials ("Work Product") will be, upon
payment in full, a non-transferable, non-exclusive, royalty-free
license to use such Work Products solely for Customer's internal use.
Customer will have no ownership or other property rights thereto and
Customer shall have no right to use any such Work Product for any other
purpose whatsoever. Customer acknowledges that Sellers may incorporate
intellectual property created by third parties into the Work Product
(“Third Party Intellectual Property”). Customer agrees that its right
to use the Work Product containing Third Party Intellectual Property
may be subject to the rights of third parties and limited by agreements
with such third parties.
Confidential Information
Each party anticipates that it may be necessary to provide access to
information of a confidential nature of such party, the Affiliates or a
third party (hereinafter referred to as "Confidential Information") to
the other party in the performance of this Agreement and any Statement
of Work. "Confidential Information" means any information or data in
oral, electronic or written form which the receiving party knows or has
reason to know is proprietary or confidential and which is disclosed by
a party in connection with this Agreement or which the receiving party
may have access to in connection with this Agreement, including but not
limited to the terms and conditions of each Statement of Work.
Confidential Information will not include information which: (a)
becomes known to the public through no act of the receiving party; (b)
was known to the receiving party, or becomes known to the receiving
party from a third party having the right to disclose it and having no
obligation of confidentiality to the disclosing party with respect to
the applicable information; or (c) is independently developed by
agents, employees or subcontractors of the receiving party who have not
had access to such information. To the extent practicable, Confidential
Information should be clearly identified or labeled as such by the
disclosing party at the time of disclosure or as promptly thereafter as
possible, however, failure to so identify or label such Confidential
Information will not be evidence that such information is not
confidential or protectable.
Each party agrees to hold the other Party's Confidential Information
confidential for a period of three (3) years following the date of
disclosure and to do so in a manner at least as protective as it holds
its own Confidential Information of like kind but to use no less than a
reasonable degree of care. Disclosures of the other Party's
Confidential Information will be restricted (i) to those individuals
who are participating in the performance of this Agreement or the
applicable Statement of Work and need to know such Confidential
Information for purposes of providing or receiving the Products or
Services or otherwise in connection with this Agreement or the
applicable Statement of Work, or (ii) to its business, legal and
financial advisors, each on a confidential basis. Each party agrees not
to use any Confidential Information of the other Party for any purpose
other than the business purposes contemplated by this Agreement and the
applicable Statement of Work. Upon the written request of a party, the
other party will either return or certify the destruction of the
Confidential Information of the other party.
If a receiving party is required by law, rule or regulation, or
requested in any judicial or administrative proceeding or by any
governmental or regulatory authority, to disclose Confidential
Information of the other Party, the receiving party will give the
disclosing party prompt notice of such request so that the disclosing
party may seek an appropriate protective order or similar protective
measure and will use reasonable efforts to obtain confidential
treatment of the Confidential Information so disclosed.
Return Privileges
NewAge allows customer to exchange any defective product at buyers
expense, as long as it is within the original warranty period. Product
that the Seller, in their discretion, accepts as a return for any other
reason other than defect will be subject to a 25% restocking fee, and
must be returned with an authorized RMA number within 7days of product
receipt. Software is not returnable if the packaging has been opened.
If software was distributed electronically, it is not returnable if the
licenses were downloaded. Customers must notify NewAge Customer
Support of any damaged Products within fifteen (15) days of receipt.
Termination
Either party may terminate performance of a Service or a Statement of
Work for cause if the other party fails to cure a material default in
the time period specified herein. Any material default must be
specifically identified in a written notice of termination. After
written notice, the notified party will, subject to the provision of
warranties herein, have thirty (30) days to remedy its performance
except that it will only have ten (10) days to remedy any monetary
default. Failure to remedy any material default within the applicable
time period provided for herein will give cause for immediate
termination, unless such default is incapable of being cured within the
time period in which case the defaulting party will not be in breach
(except for Customer’s payment obligations) if it used its reasonable
efforts to cure the default. In the event of any termination of the
Services or a Statement of Work, Customer will pay Seller for all
Services performed and expenses incur red up to and including the date
of termination plus any termination fee if one is set forth in the
applicable Statement of Work. In such event Customer will also pay
Seller for any out-of-pocket demobilization or other direct costs
resulting from termination. Upon termination, all rights and
obligations of the parties under this Agreement will automatically
terminate except for any right of action occurring prior to
termination, payment obligations and obligations that expressly or by
implication are intended to survive termination (including, but not
limited to, limitation of liability, indemnity, confidentiality, or
licensing of Work Product and this survival provision).
Provisions Related to Custom Imaging
If in connection with the provision of Products or Services, Customer
desires to have Seller provide installation of custom software images,
Customer will be required to execute an Installation Indemnity
Agreement.
Arbitration
Any claim, dispute, or controversy (whether in contract, tort or
otherwise, whether preexisting, present or future, and including, but
not limited to, statutory, common law, intentional tort and equitable
claims) arising from or relating to the Products, the Services, the
interpretation or application of these Terms and Conditions or any
Statement of Work or the breach, termination or validity thereof, the
relationships which result from these Terms and Conditions or any
Statement of Work (including, to the full extent permitted by
applicable law, relationships with third parties who are not
signatories hereto), or Seller's or any of its Affiliates' advertising
or marketing (collectively, a "Claim") WILL BE RESOLVED, UPON THE
ELECTION OF ANY OF SELLER, CUSTOMER OR THE THIRD PARTIES INVOLVED,
EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. If arbitration is
chosen, it will be conducted pursuant to the Rules of the American
Arbitration Association. If arbitration is chosen by any party with
respect to a Claim, neither Seller nor Customer will have the right to
litigate that Claim in court or to have a jury trial on that Claim or
to engage in pre-arbitration discovery, except as provided for in the
applicable arbitration rules or by agreement of the parties involved. Further,
Customer will not have the right to participate as a representative or
member of any class of claimants pertaining to any Claim.
Notwithstanding any choice of law provision included in these Terms and
Conditions, this arbitration agreement is subject to the Federal
Arbitration Act (9 U.S.C. §§ 1-16). The arbitration will take place
exclusively in Ramsey, New Jersey. Any court having jurisdiction may
enter judgment on the award rendered by the arbitrator(s). Each party
involved will bear its own cost of any legal representation, discovery
or research required to complete arbitration. The existence or results
of any arbitration will be treated as confidential. Notwithstanding
anything to the contrary contained herein, all matters pertaining to
the collection of amounts due to Seller arising out of the Products or
Services will be exclusively litigated in court rather than through
arbitration.
Miscellaneous
Seller may assign or subcontract all or any portion of its rights or
obligations with respect to the sale of Products or the performance of
Services or assign the right to receive payments, without Customer's
consent. Customer may not assign these Terms and Conditions, or any of
its rights or obligations herein without the prior written consent of
Seller. Subject to the restrictions in assignment contained herein,
these Terms and Conditions will be binding on and inure to the benefit
of the parties hereto and their successors and assigns. No provision of
this Agreement or any Statement of Work will be deemed waived, amended
or modified by either party unless such waiver, amendment or
modification is in writing and signed by both parties. The relationship
between Seller and Customer is that of independent contractors and not
that of employer/employee, partnership or joint venture. If any term or
condition of this Agreement or a Statement of Work is found by a court
of comp etent jurisdiction to be invalid, illegal or otherwise
unenforceable, the same shall not affect the other terms or conditions
hereof or thereof or the whole of this Agreement or the applicable
Statement of Work. Notices provided under this Agreement will be given
in writing and deemed received upon the earlier of actual receipt or
three (3) days after mailing if mailed postage prepaid by regular mail
or airmail or one (1) day after such notice is sent by courier or
facsimile transmission. Any delay or failure by either party to
exercise any right or remedy will not constitute a waiver of that party
to thereafter enforce such rights.
Version Date: 01.06.2022