The parties to which these terms and conditions (“T&Cs”) are Advanced Deposition & Coating Technologies, Inc., a California corporation, dba Advanced Coating, whose principle office is located in Rancho Cucamonga, California, U.S.A. (“Advanced”); and its customer who has, or is, engaging, Advanced to perform Parylene conformal coating and related services on its behalf (“Customer”).
Advanced is engaged and experienced in commercial business enterprises and activities relating to the customized application of Parylene and Parylene coatings, the preparation of electronic assemblies and/or other substrates for Parylene coatings, as well as associated processes and techniques. Upon the acceptance of Customer’s order Advanced agrees to perform Parylene coating services for the goods provided to Advanced by Customer for such coating, and any other related services, as more fully described or referenced in the Quote attached to these T&Cs and in any existing Standard Processing Protocols of Advanced.
Upon receipt of either a purchase order or other request for services, including any work instructions and documents supporting those requests, from Customer, Advanced shall provide Customer a quotation for such services, which shall include and incorporate, these T&Cs and other existing Standard Processing Protocols of Advanced(“Quote”). Such Quote shall be valid for ninety (90) days, or for a period otherwise stated in the Quote. Normally the quoted price does not include any applicable packaging, crating, shipping or delivery, storage, in-transit insurance, sales, and other taxes, unpacking or installation charges, or the like.
Advanced will only accept Customer’s order on the condition that Customer agrees to these T&Cs and any existing Standard Processing Protocols of Advanced. If the Customer fails to object, in writing, to these T&Cs and any existing Standard Processing Protocols of Advanced, either before the receipt of the confirmation of Customer’s order from Advanced, or the delivery to Customer of the goods which were serviced by Advanced, which ever event occurs earlier, this shall constitute the Customer’s agreement to all of the T&Cs contained herein and to any existing Standard Processing Protocols of Advanced (collectively “Agreement”). Customer further agrees that in the event there are any conflicting terms and conditions in any submitted purchase order or order of Customer, that these T&Cs and any existing Standard Processing Protocols of Advanced, shall prevail.
Any returning Customers of Advanced shall have the obligation and affirmative duty to inform Advanced of any changes in Customer’s own terms and conditions from those which were used and relied upon by Advanced in prior orders of that Customer with Advanced. This is imperative so that Advanced may become alerted to such prior to attempting to process the new order from Customer; and to timely resolve any conflicts between these T&Cs of Advanced and the new terms and conditions of Customer. Failure to do so by Customer may result in cancellation, or delay in processing, of Customer’s current order by Advanced.
Although Advanced is not required to accept requested order changes from Customer after the order has been accepted by Advanced, reasonable changes may be considered, only under the following conditions: a) The request for change is submitted in writing to Advanced and received in time to be fully implemented before the start of the rendering of any portion of the services to be done by Advanced on behalf of Customer; and b) any additional charges for material, labor, and administrative costs incurred by Advanced as a result of the changes are paid by Customer. Any change orders will necessarily result in delays of any previously scheduled order ship dates.
Customer may cancel Customer’s order only upon at least five (5) days prior written notice by Customer. However, the Customer shall then pay Advanced a cancellation charge. Cancellation shall be implemented and based on the following:
If the cancellation notice is timely received by Advanced prior to Advanced commencing any portion of the Parylene coating preparation or services, the cancellation charge shall be: either a) the costs incurred and provided by Advanced along with a normal profit amount applicable for work performed prior to Advanced’s receipt of the cancellation notice, or b) 10% of the total order price, whichever amount is greater; If the cancellation notice is received after Advanced commences any portion of the Parylene coating preparation or services, but before they are completed, the cancellation order charge shall be: either a) the costs incurred and provided by Advanced along with a normal profit amount for work performed prior to Advanced’s receipt of the cancellation notice, or b) 25% of the total order price, whichever amount is greater; If the cancellation notice is received after Advanced completes the Parylene coating services, the Customer shall forfeit any right to cancel their order, and Customer shall be liable for, and must pay, all charges under their order.
Standard coatings and sealants are IPC-CC-830/MIL-I-46058 compliant, and Advanced workmanship standards comply with IPC-A-610 and IPC J-STD-001. Certificates of Compliance will be supplied upon request. Unless otherwise stated in the Quote, Advanced shall only provide Parylene coating services consistent with Advanced’s usual and customary Parylene coating specifications-which are available to Customer upon request. Customer must deliver their parts to Advanced in such a condition that Advanced is able to coat these parts.
It may become necessary for Advanced to request an exception to a stated requirement of either Customer or Advanced in processing a Customer order. In that even Advanced will, in writing, designate the requirement to be excepted and the reasoning behind such request.
Customer acknowledges, and should be aware, that older drawings sometimes contain references to legacy specifications that may, or may not, over-specify requirements, which might require a request for exception. Although Advanced may be familiar with these specifications, it does not maintain a revision controlled library, and thus may ask Customer to provide the necessary documents; which may also result in Advanced suggesting an alternative process that embodies the essence of the legacy specifications.
If, for any reason, Advanced determines it is unable to meet Customer’s order requirements, as Advanced may understand them to be, Advanced will pause its service process for Customer and promptly notify Customer of its questions or concerns, and Advanced will not proceed to complete Customer’s order until all such concerns are fully resolved.
Customer acknowledges and agrees that Advanced may subcontract all or any portion of its services to be provided under this Agreement, at its sole discretion.
Advanced is ITAR registered, registration code M26606.
Advanced is registered to ISO 9001 and AS 9100.
Advanced continuously monitors order turn times and actively attempts to reduce order cycle times, where feasible. On those occasions where the provided configuration baseline, the part, and/or drawings do not agree, the processing clock cannot start until the differences are resolved. Advanced will communicate with Customer in an attempt jointly determine a solution to any such discrepancies; however, delays in processing times may result.
Inspections by Advanced normally mean unaided visual inspections only. A receiving inspection consists of examination of the shipping container for gross damage and a sampling of the parts to confirm the part, purchase order and the drawing, if one is provided, share a common REV level and that the parts sampled generally resemble the parts depicted by the applicable drawing. As parts are removed from their transit packaging, ESD bags, or the like, they are briefly examined for gross damage, broken boards, and loose components in the bag. Advanced does not critically examine each part before it enters the coating process. Any formal notice of this type of nonconformance is usually made as the nonconformance(s) are detected.
Advanced cleans nearly all parts, and all PCBs before coating. The standard cleaning protocol is designed to remove the residues commonly deposited during the handling of parts during manufacturing and is not designed, nor is it expected, to remove oil or flux deposits, or unique manufacturing artifacts. Our expectation is that any significant cleaning issues have been addressed prior our receipt of the parts, and that the parts would be received in a clean condition. Cleaning processes can include the use of plasma cleaning, ultrasound baths and alcohol and/or aqueous cleaning solutions. Standard DI water is a minimum of 2m0hm resistivity. Standard drying protocol includes a minimum of 60 minutes of oven time at a maximum temperature of 60 degrees Celsius.
Cleaning processes can negatively impact markings and labels, up to and including their obliteration. Generally, coated labels and permanent inks are safe in the washing process, however short of experimentation, there is no certain way to determine which label or marking will fail.
Parts are scrutinized more closely by technicians as they move through the cleaning, masking, coating, and demasking process. Any nonconformance of the parts which get discovered at these stages will be communicated to Customer.
Parylene will infiltrate some type of connectors, switches, and the like, if the structure is not sealed prior to coating. Standard masking conventions will not prevent this infiltration so the connector must be sealed. The standard sealant is Dow Corning 3140©RTV COATING. If Customer deems and informs Advanced that this sealant may be unsuitable for their order Advanced will attempt to discuss alternatives with the Customer.
The standard tolerance for locating masking/demasking is 0.0625”. Masking and demasking and their subsequent inspections are performed without visual aid to the standards: IPC-A-610 and IPC-JSTD-001.
Acrylic, Urethane and Epoxy can all be touched up with like coating. However, Parylene is unique in that it cannot be used as a touch-up. The preferred touch-up material for Parylene is two-part urethane such as Humiseal A-120 or Dymax 984-LVUF. If a specific touch-up material is not identified by the Customer in writing on the drawing, specification, or the purchase order, then the preferred touch-up materials will be deemed authorized by the Customer.
Unless otherwise noted on the customer drawing, specification or purchase order, final inspection consists of unaided visual inspection as called out in IPC standards (IPC-A-610 and IPC-JSTD-001) and is limited to the work performed or to the value added to the parts performed by Advanced.
Due to the heavier molecular structure of the UV fluorescent materials in contrast with smaller and lighter Parylene dimer molecules, Advanced will not be able to guarantee that the UV tracer will be luminescent after adding to dimer.
If any special tools or fixtures are needed to be engineered or manufactured to complete Customer’s order, that are normally not used by or available to Advanced, which involve non-recurring engineering costs on the part of Advanced (“NRE costs”), such NRE costs shall be paid for by Customer and reimbursed to Advanced, per Advanced’s invoice to Customer. Customer is also responsible for payment to Advanced for any damages or repairs to these items.
Normally, but not always, these special tools and fixturing are returned to Customer conditional upon completion of Customer’s order and complete payment by Customer for their order and NRE costs. However, any other tools or fixturing which are normally used in the coating process for Customer or other customers, shall remain, and be deemed, the sole and exclusive property of Advanced; and Customer shall not have any ownership, license, or right to possession or use in such tools or fixtures.
If Advanced determines that it is necessary to make any changes in the construction, design, materials, and dimensions of Advanced’s products, or to discontinue certain of its products, it reserves the right to do so. All measurements and weights stated in the Agreement should be viewed as approximate.
Unless otherwise specified, finished products will be returned to Customer in the same container(s) as initially received by Advanced. Therefore, Customer assumes all costs and responsibility for shipping its product to Advanced in suitable and well-constructed packaging which can be reused by Advanced to ship their product safely back to Customer after their order is completed.
Customer shall have no later than ninety(90) days from the time that they receive the finished products which have been coated by Advanced, to inform Advanced in writing of any defects or non-conformities in the workmanship of Advanced on their order. If such timely notice is given to Advanced, Advanced shall make reasonable efforts to correct such defects or non-conformities in the Customer’s order.
Crating, shipping, shipping insurance, and freight shall be paid by the Customer. Crating charges will be invoiced at cost of material and labor.
Advanced may decide to ship merchandise via UPS, Fed Ex, or similar carrier, prepaid. Merchandise shipped via other carriers will be sent freight and in-transit insurance charges collect. If the Customer does not provide specific written instructions as to the method of shipment the Customer desires, then Advanced will determine the method of shipment.
All prices quoted are FOB Advanced’s plant in Rancho Cucamonga, California, U.S.A., freight collect. This means that the Customer bears the freight charges and shall pay the freight charges to the carrier, title to the coated Items transfers to the Customer once the coated Items leaves Advanced’s plant; and the Customer assumes all of the risk of transportation. Customer is responsible for filing any claims for loss and/or damage to the finished items once they leave Advanced’s plant.
Unless the Customer previously advises Advanced in writing, Advanced reserves the right to make partial shipments, and invoices covering these partial shipments are to be paid by Customer as they are issued.
All the intellectual property rights to any inventions, improvements, modifications, or ideas made or conceived by Advanced or Customer, shall exclusively belong to that respective party. Advanced and Customer shall each retain all their own respective intellectual property rights. Customer understands and agrees that any disclosure of any information to Customer by Advanced, related to the coating process. or any modification or customization of the coating process as part of the services to Customer, will not confer any intellectual property rights to Customer. This Agreement does not, and shall not be read or interpreted to, assign any intellectual property rights whatsoever to Customer or Advanced. Advanced does not assign, transfer, and/or confer any intellectual property rights to Customer as part of performing its services to Customer under this Agreement.
All Data (“Data” shall mean any and all data and records required to be made pursuant to the services being provided under this Agreement, including but not limited to all reports, specifications, drawings, models, engineering work, and the like, whether in written printed, graphic, video or audio form, or maintained in any computer database or computer readable form, which are created as a direct result of the services provided by Advanced) shall be, and remain, the exclusive property of Advanced. Any copyrightable work, whether published or unpublished, created by Advanced in connection with or during the performance of any engineering work, or services by Advanced, shall belong exclusively to Advanced, and all right, title and interest therein, including, without limitation, worldwide copyrights, shall be the exclusive property of Advanced.
These provisions regarding ownership of intellectual property rights shall survive the termination of this Agreement.
An invoice will be issued upon completion and shipment of the order, and subject to previous credit approval, final payment is due “Net 30” (which indicates that full payment is expected within 30 days). If the balance due is not received within thirty-days (30) from the date of the invoice, then any late fees and interest on the unpaid invoice balance will then be additionally assessed, to the fullest extent allowable by law, from the date of the initial invoice.
If delivery of the goods is delayed at the Customer’s request, Advanced reserves the right to transfer the goods that are to be coated and/or the coated Items, to storage with the costs of transfer and storage to be charged to the Customer. The Customer shall bear all the risk of loss or damage during such transfer and storage.
Advanced shall maintain documents regarding Customer’s order for not less than 7 years, or per the stated Customer Purchase Order requirements, and shall allow access to such records to Customer and its customers.
Limited Express Warranty – For Parylene Coating Services Only
PLEASE READ THIS LIMITED EXPRESS WARRANTY CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS!
THIS EXPRESS WARRANTY IS APPLICABLE ONLY TO PARYLENE COATING SERVICES ADVANCED PROVIDES TO CUSTOMER.
THIS LIMITED EXPRESS WARRANTY IS THE ONLY WARRANTY APPLICABLE TO THE PARYLENE COATING SERVICES, AND WHERE ALLOWABLE BY LAW, REPLACES ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
Subject to the terms and conditions of this limited express warranty (“Limited Warranty”), Advanced expressly warrants that it will recoat or otherwise correct any defects in workmanship by Advanced in the Parylene coating services provided to Customer (“Goods Coated”), for a period of thirty (30) days starting from the date Customer receives the Goods Coated (the "Warranty Period"). This Limited Warranty only covers any materials and labor needed to correct defects in materials or workmanship provided in the process of coating of the Goods Coated by Advanced for Customer. If the Quote provides that the coating applied by Advanced shall meet with the specifications provided by the Customer to Advanced, then Advanced warrants that the coating applied by Advanced to the Customer’s parts shall meet with the specifications provided by Customer to Advanced for the coating process Otherwise, Advanced shall only warrant that the coating applied by Advanced shall meet with Advanced’s standard specifications. This Limited Warranty does not cover, and Advanced is not liable for, the Goods Coated performing in any particular manner or for the Goods Coated being suitable for any specific or intended use by Customer or by any other third party.
This Limited Warranty shall not apply, and Advanced has no liability under this Limited Warranty, if:
Defects were discovered after the Warranty Period ends;
The Goods Coated were modified, tampered with, repaired, or altered by Customer or anyone other than Advanced; and/or
The Goods Coated are damaged by Acts of God, any force majeure, power surge, misuse, abuse, negligence, accident, mishandling, misapplication, wear and tear, or other causes unrelated to defective workmanship.
In order to obtain warranty service during the Warranty Period, the Customer must contact Advanced during the Warranty Period to inform Advanced of any defect(s) in workmanship of the Goods Coated. The Customer may then send the Goods Coated to Advanced’s plant in Rancho Cucamonga, California, U.S.A. at the Customer’s sole expense paid in advance; and if Advanced determines that the Goods Coated are covered under the Limited Warranty and that the work that needs to be performed on the Goods Coated is covered by the Limited Warranty, then the Customer will be refunded the shipping charges incurred in sending the Goods Coated to Advanced’s plant.
TO THE FULLEST EXTENT ALLOWED BY LAW, THIS AGREEMENT EXPRESSLY EXCLUDES ALL IMPLIED WARRANTIES, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION: (a) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY; AND (b) ANY AND ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED UNDER APPLICABLE LAW, THE IMPLIED WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY, AND OTHER RIGHTS MAY EXIST AND MAY VARY FROM JURISDICTION TO JURISDICTION.
TO THE FULLEST EXTENT ALLOWED BY LAW, UNDER NO CIRCUMSTANCES SHALL ADVANCED, OR ANY OF ADVANCED’S CURRENT OR FORMER OWNERS, OFFICERS, DIRECTORS, SHAREHOLDERS, SUCCESSORS, PREDECESSORS, AFFILIATES, PARENTS, DIVISIONS, SUBSIDIARIES, BRANCHES, UNITS, PARTNERS, JOINT VENTURERS, CONTRACTORS, AGENTS AND ASSIGNS, BE LIABLE FOR LOST REVENUE, LOST PROFIT, BUSINESS INTERRUPTION, COSTS OF DELAY, LOSS OF USE, REPUTATIONAL HARM, LOSS OF GOODWILL, LOSS OF CAPITAL, OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES UNDER OR ARISING FROM THIS AGREEMENT.
ADVANCED SHALL NOT BE LIABLE FOR ANY DAMAGES OR HARM RESULTING TO ANY CUSTOMER PARTS OR CUSTOMER PROPERTY WHICH ARE INCURRED IN, OR RELATE TO, THE COATING PROCESS FOR CUSTOMER; OR FOR ANY LOSSES TO, OR THEFT OF, CUSTOMERS’ PARTS OR PROPERTY, WHILE THEY ARE IN THE POSSESSION OF ADVANCED.
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, ADVANCED SHALL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY AMOUNTS IN EXCESS OF THE TOTAL AMOUNT ACTUALLY PAID, OR PAYABLE, BY CUSTOMER TO ADVANCED FOR THE SUBJECT COATING SERVICES.
BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
FURTHER, NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT EXCLUDES EITHER PARTY’S LIABLITY FOR MATTERS THAT VIOLATE THE PUBLIC INTEREST, AND DO NOT APPLY TO EXEMPT EITHER PARTY FROM THEIR OWN FRAUD OR WILLFUL INJURY TO THE PERSON OR PROPERTY OF ANOTHER, OR VIOLATIONS OF LAW.
If the Customer is using, or will use, the items which were coated (including, but not limited to, any medical item, product, or device) that is to be implanted in humans or animals, then the Customer shall procure and maintain an insurance policy, at Customer’s sole expense, at all times that the Customer has possession or ownership of the Goods Coated, the Customer is selling the Goods Coated to a third party, and/or the Goods Coated are under any type of warranty provided by Customer. Customer shall then be required to maintain the following types of insurance(s):
1. Products Liability InsuranceCustomer shall have Products Liability Insurance Coverage with limits of not less than two million dollars ($2,000,000) for each occurrence and five million dollars ($5,000,000) annual aggregate. Any exclusions or amendments to the policy form must be disclosed to Advanced. The policy shall specifically include Advanced, its subsidiaries, and its shareholders, directors, officers, and employees, as additional named insureds. The policy shall also specifically waive Customer’s rights of subrogation against Advanced, its subsidiaries, and its shareholders, directors, officers, and employees.
2. MiscellaneousAll insurance companies must be authorized to do business in the states where business is being transacted covering all operations under this Agreement. All insurance policies shall provide for thirty days (30) days prior written notice to Advanced of cancellation or nonrenewal. All insurance companies must be rated “A” or better in the most recent A.M. Best’s Rating Guide.
Customer shall supply Advanced with the above proof of insurance and forms as required prior to the Goods Coated being delivered to Customer, but the failure of Advanced to request or demand such proof or forms shall not waive Advanced’s rights to have Customer maintain insurance coverage under this Agreement. Copies of the required endorsements to the policies shall also be provided to Advanced upon their request.
Advanced shall not be liable for any failure or delay in its performance under this Agreement due to direct, or indirect, causes (or the effects therefrom) which are beyond its reasonable control, including, but not limited to, acts of God, acts of civil or military authority, fires, epidemics, pandemics, floods, earthquakes, wind events, riots or civil unrest, insurrections, protests, wars, sabotage, labor shortages or disputes, strikes, lockouts or other labor difficulties, accidents, and/or governmental actions.
Customer agrees to assume, and to pay all costs, attorneys’ fees, and expenses of, the defense of Advanced, and to fully indemnify and to fully hold Advanced harmless, in any threatened or actual legal proceeding naming Advanced as an actual or potential defendant, when the actual or threatened legal proceeding involves allegations of:
The alleged willful misconduct or negligent acts or omissions of Customer or of Customer’s owners, members, shareholders, directors, officers, agents, or employees;
Customer’s alleged defective specifications provided by Customer to Advanced for the items coated in their order to Advanced;
Customer’s alleged fraud, misleading statements, misrepresentations, or deceptive or unfair trade or business practices; and/or
Customer’s alleged negligent or willful violation of the law.
Within fifteen (15) days of the proper service of any summons and complaint, or of a written notice of threatened litigation, Advanced shall promptly deliver to Customer and request in writing a defense and/or indemnification as provided herein. Advanced and Customer agree to cooperate fully in the defense of such action, as Customer may reasonably require. Advanced shall be entitled to retain counsel of its own choice, at the Customer’s sole expense.
Customer and Advanced unconditionally consent and agree that the jurisdiction and venue of any dispute between the parties regarding the construction, interpretation, performance, and rights and remedies under this Agreement, or any breach or threatened breach thereof, shall be exclusively resolved in a binding arbitration proceeding within San Bernardino County, California, U.S.A.
The Agreement shall be deemed to have been made and accepted, and is to be performed, in Rancho Cucamonga, San Bernardino County, California, U.S.A., and the construction, interpretation, performance, and rights and remedies under this Agreement shall be construed under and governed by the laws of the State of California, without regard to its internal choice of law rules.
This Agreement may be modified or amended if the modification is in writing and signed by both parties. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
Advanced and Customer hereby waive, to the extent permitted by law, the right to trial by jury, and instead Advanced and Customer unconditionally consent and agree that the jurisdiction and venue of any dispute between the parties regarding the construction, interpretation, performance, and rights and remedies under this Agreement, or any breach or threatened breach thereof, shall be submitted and be subject to, the exclusive jurisdiction of the American Arbitration Association (“AAA”) for binding arbitration conducted under the AAA’s Commercial Arbitration and Mediation Rules then pertaining (available at www.adr.org), except as modified herein with respect to discovery, with a single neutral arbitrator. The arbitrator shall be selected within 30 business days from the date a party receives a demand for arbitration. The arbitration shall take place in the County of San Bernardino, State of California, U.S.A., and the arbitrator shall apply California law (enforcement of this arbitration provision shall also be governed by California law). Prior to the commencement of arbitration, emergency relief is available from any court to avoid irreparable harm.
The arbitrator shall have all of the same powers vested in a judge conducting a civil action in the Superior Courts of California. The arbitrator shall have the power to award all of the same remedies to either of the parties that would otherwise have been available to each of the parties in a civil action in such courts including the power to award provisional, injunctive, and equitable remedies.
The arbitrator shall be exclusively entitled to determine all questions and issues regarding the enforceability of this Agreement and whether any claims or controversies being asserted by any party are in fact subject to binding arbitration under the terms of this Agreement.
THE PARTIES HEREBY AGREE TO WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, CROSS-COMPLAINT OR COUNTERCLAIM, WHETHER AT LAW OR EQUITY, REGARDLESS OF WHICH PARTY ORIGINALLY BRINGS SUIT. THIS WAIVER SHALL APPLY TO ANY MATTER WHATSOEVER BETWEEN THE PARTIES HERETO WHICH ARISES OUT OF OR IS RELATED IN ANY WAY TO THESE T&Cs OR RELATED CUSTOMER ORDERS. CUSTOMER AND ADVANCED UNDERSTAND AND ACKNOWLEDGE THAT THEY ARE EACH WAIVING THEIR RESPECTIVE RIGHTS TO A JURY TRIAL AND THEY EACH UNDERSTAND THAT BY AGREEING TO FINAL AND BINDING ARBITRATION THROUGH THIS AGREEMENT THAT WE ARE EACH GIVING UP THEIR RIGHTS TO SUE EACH OTHER IN COURT FOR ANY AND ALL CLAIMS AND CONTROVERSIES WHICH ARE NOT SPECIFICALLY EXEMPTED UNDER THIS AGREEMENT.
THE PARTIES AGREE THAT EXCEPT FOR ANY POSSIBLE CLAIMS BROUGHT AS A REPRESENTATIVE ACTION BY EITHER PARTY UNDER “THE CALIFORNIA PRIVATE ATTORNEYS GENERAL ACT”(“PAGA”) ALL PROCEEDINGS ARISING OUT OF OR RELATED TO ANY ISSUE WHICH FALLS WITHIN THE SCOPE OF THIS AGREEMENT WILL BE CONDUCTED ON AN INDIVIDUAL, AND NOT ON A CLASS-WIDE, BASIS.
Each party shall be entitled to discovery of essential facts, documents, and witnesses, as determined by the arbitrator. Each party shall have the right to take depositions and to obtain additional discovery regarding the subject matter of the arbitration, and, use and exercise all of the same rights, remedies, and procedures, and be subject to all the same duties, liabilities, and obligations in said arbitration as they would otherwise be entitled to under the California Code of Civil Procedure. Each party is entitled to discovery sufficient to arbitrate their claims and defenses as determined by the arbitrator. The provisions of California Code of Civil Procedure § 1283.05 are hereby specifically incorporated into and made a part of this Agreement by this reference.
In addition to the policies provided in the above referred rules and procedures the arbitrator shall also have all the powers provided in California Code of Civil Procedure §§1282 through 1284.3 including, but not limited to the following powers:
To determine the enforceability of this Agreement and whether any issue or controversy between the parties is in fact subject to binding arbitration under the terms of this Agreement, or otherwise;
To issue subpoenas for the attendance of witnesses and subpoenas duces tecum for the production of books, records, documents, and other evidence;
To order depositions in the discovery process;
To order depositions to be used as evidence;
To enforce the rights, remedies, procedures, duties, liabilities, and obligations of discovery as if the arbitration were a civil action before a California Superior Court;
To conduct a hearing on the issues and claims which are in controversy;
To issue orders for provisional, injunctive, and equitable relief;
To consider and rule on all motions available under the Code of Civil Procedure as would be available in a normal court of law; and
To administer oaths to parties and witnesses.
This agreement to engage in binding arbitration proceedings shall be deemed self-executing, and in the event either party fails to appear at any properly noticed arbitration proceeding, an award may be entered against such party notwithstanding said party’s failure to appear.
As soon as practicable after the close of the arbitration hearing (but generally, no later than thirty (30) days thereafter) the arbitrator shall issue the arbitrator's final written decision including findings of fact and conclusions of law.
THE PARTIES AGREE THAT THE ARBITRATOR SHALL NOT AWARD EITHER PARTY PUNITIVE, EXEMPLARY, INCIDENTAL, MULTIPLIED OR CONSEQUENTIAL DAMAGES.
The award of the arbitrator shall be enforced and is subject to judicial review pursuant to the provisions of California Code of Civil Procedure §§ 1283.4 through 1294.2.
Service and/or notice, for all aspects of the arbitration, including, but not limited to, the demand for arbitration, notice of hearing, notice of arbitration award, notice of ruling, the petition to confirm the arbitration award, notice of the hearing on the petition to confirm arbitration award, and notice of ruling on the hearing of the petition to confirm arbitration award, shall be deemed proper if service is made by first class mail at either the address of the parties as listed in this Agreement, or at the last known mailing address of either of the parties.
Any notice delivered to a party pursuant to this Agreement must be in writing and delivered personally or will be deemed to be delivered when deposited in the U.S. Mail, postage prepaid, registered or certified mail, return receipt requested, addressed to the Party at their last known address or at such other address that may have been specified by written notice delivered in accordance with this provision.
If to Advanced: If to Customer:
Advanced Coating to Customer, or their agent’s,
10723 Edison Court last known address
Rancho Cucamonga, CA 91730
Attention: Steven J. Doltar
Toll free telephone: 800.722.1444
Fax: 909.481.1427
www.advancedcoating.com
If any legal action or any arbitration or other proceeding is brought for the enforcement or interpretation of this Agreement, or because of an alleged dispute, breach, threatened breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover their reasonable attorney's fees and other costs incurred in that action or proceeding, including arbitrator’s fees and arbitration fees and expenses, in addition to any other relief to which it or they may be entitled.
In the event of a breach or attempted breach of this Agreement, a party shall be entitled to all injunctive and equitable relief available to that party to enjoin the other party’s breach or possible future breach, in addition to all remedies available to the party at law. All remedies hereunder shall be cumulative.
If any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future laws, that provision will be removed from this Agreement and this Agreement will be interpreted and enforced as if the illegal, invalid, or unenforceable provision had never been a part of this Agreement and the remaining provisions will remain in effect and will not be affected by the illegal, invalid or unenforceable provision or its removal. Instead of the illegal, invalid or unenforceable provision, there will be added, as part of this Agreement, a provision as similar in terms to the illegal, invalid or unenforceable provision as may be possible and still be legal, valid and enforceable.
This Agreement shall be effective and shall be binding upon, and shall inure to the benefit of, each of the parties, and their respective affiliates, subsidiaries, successors, and assigns, and where applicable their respective heirs, executors, and administrators.
This Agreement, and any existing Standard Processing Protocols of Advanced, and Customer/Vendor Confidentiality Agreements, constitute the entire understanding of the parties, and supersedes all prior agreements or understandings, whether written or oral, with respect to this subject matter. No terms, conditions, or warranties, other than those written in this Agreement, and no amendments or modifications of this Agreement will be binding on the parties unless in writing and signed by all the parties.
