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.

 

    1. 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.
    2. 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.

 

    1. 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.

 

    1. 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.

 

    1. 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.

 

    1. 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.

 

    1. 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.

 

    1. 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.

 

    1. 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.

 

    1. 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.

 

  1. 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.