ERMS AND CONDITIONS OF SALE
Acceptance. UA USA, LLC (“Seller”) is offering to sell air conditioning products (“Product”) to customer (“Customer”) by and through an authorized purchaser, (“Purchaser”). By purchasing the Product, Customer and Purchaser accept and agree to be bound by these Terms and Conditions. These Terms and Conditions constitute the entire offer, acceptance, and agreement between Seller, Customer, and Purchaser (collectively “Parties”). All prior or contemporaneous agreements, representations or understandings by and between the Parties, whether written or oral, are superseded and merged herein, and any competing terms in any purchase order or other document supplied by Purchaser or Customer are rejected. No supplement, amendment or modification of these Terms and Conditions shall be valid or binding, except by Seller’s written agreement, signed by an authorized officer of Seller.
Shipping, Risk of Loss and Transfer of Title. If Product is being shipped to Purchaser or Customer, shipment dates are estimates only. No valid contract may be made to ship within or at a specified time unless in writing, signed by an authorized officer of Seller. Shipments shall be CPT Customer’s named destination (Incoterms 2010). Seller will contract for and pay the cost of carriage; however, freight charges will be added to Customer’s invoice at time of shipment. Title and risk of loss shall pass to Customer when Seller hands the Product to the carrier.
Price and Payment. Payment is due upon receipt of Product. All amounts not paid to Seller when due will incur a carrying charge of 1.5% per month to the extent allowed by law and otherwise at the highest written contract rate allowed by law. Purchaser and Customer shall be liable to Seller for all collection expenses, including reasonable attorney’s fees and court costs, incurred by Seller in attempting to collect any amounts due from Purchaser or Customer. Seller reserves the right to exercise all remedies available at law, including suspending or terminating performance in the event of non-payment. All prices are exclusive of all applicable taxes, duties, licenses, and tariffs levied upon the sale, purchase or delivery of the Product which are the obligation of Purchaser.
Purchaser Obligations. Purchaser represents and warrants that: (a) it is a licensed contractor, authorized by the jurisdiction in which the Product is installed, to install the Product; (b) it is qualified to install the Product, and will only utilize trained and qualified HVAC technical personnel to install the Product; (c) it will install the Product in accordance with Seller’s or other applicable manufacturer’s installation instructions, as well as in compliance with all laws, codes, regulations, and other applicable requirements of the jurisdiction in which the Product is installed; (d) it will install the Product in a manner that will preserve and enhance the goodwill and prestige of Seller; (e) it will not remove or alter any printed Seller of applicable manufacturer warranty, nameplate, label, tag or literature from any Product and, where applicable, to deliver the manufacturer’s printed warranty and operations manuals to the Customer; and (f) it will duly and timely record the model and serial number of all Products installed, along with the installation location and date, and furnish said information to Seller upon completion of installation (collectively “Purchaser Obligation”).
Customer Obligations. Customer shall: (a) acquire the Product only through an authorized Purchaser; (b) utilize licensed and qualified HVAC personnel to install the Product; (c) within thirty (30) days of receipt of the Product, complete the Product Registration Card included in the original Product packaging and return it to Manufacturer or register on the Product on the manufacturer’s website; and (d) maintain the Product in accordance with the Product operating manual and recognized best practices, (collectively “Customer Obligation”).
Destination and Use. The Product shall only be purchased, installed, and used in the United States of America.
Limited Warranty. The Product is subject to a Manufacturer’s Limited Warranty, which is available at warranty policy. EXCEPT AS OTHERWISE PROVIDED IN THE LIMITED WARRANTY, OR AS REQUIRED BY LAW, NEITHER SELLER NOR MANUFACTURER MAKE ANY OTHER WARRANTY OF ANY KIND WITH RESPECT TO THE PRODUCT, AND HEREBY DISCLAIM AND EXCLUDE ALL WARRANTIES AND REMEDIES NOT EXPRESSLY PROVIDED HEREIN OR REQUIRED BY LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES. NO ONE IS AUTHORIZED TO CHANGE THIS LIMITED WARRANTY IN ANY RESPECT OR CREATE ANY OTHER OBLIGATION OR LIABILITY FOR MANUFACTURER IN CONNECTION WITH THE PRODUCT OR ANY UNITED APPLIANCES EQUIPMENT.
Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL MANUFACTURER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, INFRINGEMENT OF THIRD PARTY RIGHTS, LOSS OF GOODWILL, LOSS OF REVENUE OR PROFITS, WORK INTERRUPTION, SYSTEM FAILURE, DETERIORATION OF OTHER PROPERTY, COSTS OF PRODUCT REMOVAL AND REINSTALLATION, INCREASE IN THE USE OF ENERGY, LOSS OF USE, INJURY TO PERSONS OR PROPERTY ARISING OUT OF OR RELATED TO THE PRODUCT, WHETHER FOR BREACH OF WARRANTY, BREACH OF CONTRACT, TORT OR OTHERWISE, EVEN IF MANUFACTUER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL MANUFACTURER’S LIABILITY EXCEED THE ACTUAL PURCHASE PRICE OF THE SYSTEM WITH RESPECT TO WHICH ANY CLAIM IS MADE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES OR EXCLUSIONS OR LIMITATIONS OF DAMAGES, INCLUDING INIENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY.
Cancellation and Returns. If any Product order is cancelled prior to shipment, without Seller’s written consent, Purchaser and Customer shall be liable to Seller for cancellation charges including Seller’s incurred costs and profits. Product may be returned only in new, unused condition, within thirty (30) days of receipt, and a restocking fee will apply.
Force Majeure. Seller will not be responsible for any delay or failure in any performance due, without limitation, to act of God, war, warlike conditions, blockade, embargoes, riots, governmental restriction or order, labor disturbances, unavailability of anticipated usual means of supplies, transportation or loading facilities, wrecks, epidemics, quarantine, fire, flood, earthquake, explosion, any unforseen change in circumstances, or any other causes beyond its reasonable control.
Indemnification. Purchaser agrees to defend, indemnify, and hold Seller harmless from and against any loss, damage, liability, and expense (including legal and expert fees) arising out of, resulting from or in any way connected with the breach of any Purchaser Obligation. Customer agrees to defend, indemnify, and hold Seller harmless from and against any loss, damage, liability, and expense (including legal and expert fees) arising out of, resulting from or in any way connected with the breach of any Customer Obligation.
Dispute Resolution.
12.1 Agreement for Binding Arbitration. Arbitration under these Terms and Conditions is governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.), and applies to Seller, Purchaser, Coustomer, and their respective heirs, assigns, spouses, family members, affiliates, officers, directors, attorneys, insurers, shareholders, successors, subsidiaries and/or parent companies, and survives the termination of the Warranty Period. SUBJECT TO CUSTOMER’S RIGHT TO BRING ANY CLAIM AGAINST SELLER IN A SMALL CLAIMS COURT OF COMPETENT JURISDICTION, SELLER, PURCHASER AND CUSTOMER AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF THIS AGREEMENT OR THE USE OF THE PRODUCT, INCLUDING ISSUES OF ARBITRABILITY, SHALL, (“DISPUTE”), AT THE OPTION OF EITHER PARTY, BE RESOLVED BY BINDING ARBITRATION BEFORE A SINGLE NEUTRAL ARBITRATOR ADMINISTERED BY JUDICIAL ARBITRATION AND MEDIATION SERVICES (“JAMS”) UNDER ITS APPLICABLE ARBITRATION RULES IN EFFECT AT THE TIME THE DISPUTE ARISES. DISPUTES SHALL NOT BE RESOLVED BY COURT OR JURY TRIAL, AND PURCHASER AND CUSTOMER IS WAIVING ANY RIGHT TO A COURT OR JURY TRIAL. The JAMS Policy on Consumer Arbitration and Minimum Standards of Procedural Fairness in effect at the time the Dispute arises are deemed incorporated by reference herein and shall govern the Arbitration.
The JAMS Rules and may be found at www.jamsadr.com, by searching for “JAMS Arbitration Rules” using a service such as www.google.com or www.yahoo.com, or by asking Manufacturer for a copy of the rules. If for any reason JAMS will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral Arbitrator.
The Arbitration hearing shall, unless the Parties otherwise agree in writing, be held within forty-five miles of where customer resides. Manufacturer shall pay all costs and expenses unique to arbitration, including without limitation the arbitrator’s fees. The Parties shall be entitled to discovery as provided by the Federal Rules of Civil Procedure. The arbitrator must follow applicable law and may award only those remedies that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator’s decision in any court of competent authority.
Any Party may apply to a court of competent authority for temporary or preliminary injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such relief.
12.2 Class, Collective, and Representative Action Waiver. This Agreement affects the ability to participate in class, collective or representative actions. Purchaser and Customer agree to bring any Dispute in Arbitration on an individual basis only, and not on a class, collective, or private attorney general representative basis. There will be no right or authority for any Dispute to be brought, heard or arbitrated as a class, collective, representative, or private attorney general action, or as a member in any purported class, collective, representative, or private attorney general proceeding (“Class Action Waiver”). Notwithstanding any other provision of this Agreement or the JAMS Rules, disputes regarding the validity, enforceability, or breach of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, representative, or private attorney general action and (2) a civil court of competent jurisdiction finds all or part of the Class Action Waiver unenforceable, the class, collective, representative, and/or private attorney general action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. The Class Action Waiver shall be severable in any case in which the dispute is filed as an individual action and severance is necessary to ensure that the individual action proceeds in arbitration.
12.3 Commencing the Arbitration. All claims in arbitration are subject to the same statues of limitations that would apply in court under applicable law. The Party bringing the claim must demand arbitration in writing and deliver the written demand by hand or first-class mail to the other party within the applicable statute of limitations period. The demand for arbitration shall include identification of the parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. Any demand for arbitration shall be provided to Provider’s registered agent for service of process. The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration.
12.4 Enforcement of this Agreement. This Agreement is the full and complete agreement relating to the formal resolution of disputes covered by this Agreement and shall supersede all other agreements concerning arbitration. In the event any part of this Agreement is held unenforceable, the rest of this Agreement will be enforceable. If the Class Action Waiver in subsection 2 of this Agreement is unenforceable, Seller, Purchaser, and Customer agree that this Agreement is otherwise silent as to any Party’s ability to bring a class, collective, or representative action in arbitration.
Miscellaneous. This Agreement is made and entered into in the State of California and shall in all respects, be interpreted, enforced and governed by the laws of the State of California. Seller shall not be deemed to have waived any provision in these Terms and Conditions, unless specifically agreed to in writing and signed by an authorized officer of Seller. No waiver of any provision of this Agreement shall be deemed to constitute a continuing waiver of that provision, nor shall it be deemed to constitute a waiver of any other provision. Should any provision of these Terms and Conditions be declared by any court of competent jurisdiction to be illegal or invalid, the validity of the remaining parts, terms, or provisions shall not be affected thereby, and said illegal and/or invalid part, term, or provision shall be deemed not to be a part of these Terms and Conditions.
