The parties to which these terms and conditions (“T&Cs”) are: Advanced Deposition & Coating Technologies, Inc., a California corporation, dba Advanced Coating, whose principal office is located in Rancho Cucamonga, California, U.S.A. (“Advanced”); and its customer, who is purchasing certain Galxyl® Parylene raw material products from Advanced (“Customer”).
Advanced is the exclusive authorized sub-dealer of Galxyl® Parylene raw material products, in the United States, Canada, and Mexico. Advanced is authorized to engage in the sale, of certain Galxyl paracyclophane derivative products, known as Galxyl Parylene N, and Galxyl Parylene C,(“Galxyl”), and potentially other related products (collectively “Product”). Advanced is not the manufacturer of the Galxyl Product. Galxyl is manufactured by a company known as Galentis S.R.L. (“Galentis”). Customer is typically a party who engages in commercial activities relating to the application of Parylene and Parylene coatings, and is desirous of purchasing said Galxyl raw material Product from Advanced. Customer represents that it is purchasing the Product for its own use only, and not for resale.
Upon receipt of either a purchase order or other request for Product, including any instructions and documents supporting those requests, from Customer, Advanced may provide Customer a quotation for such Product, which shall include and incorporate, these T&Cs and other existing and applicable 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 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 and applicable protocols of Advanced. If the Customer fails to object, in writing, to these T&Cs and any existing and applicable protocols of Advanced, either before the receipt of the confirmation of Customer’s order from Advanced, or the delivery to Customer of the Product which is being sold to Customer by Advanced, which ever event occurs earlier, that shall constitute the Customer’s agreement to all of the T&Cs contained herein and to any existing and applicable 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, to those contained in these T&Cs or any existing and applicable protocols of Advanced, that the provisions of these T&Cs and any existing and applicable protocols of Advanced, shall prevail and control.
Upon the acceptance of Customer’s order, Advanced agrees to sell said Product to Customer, subject to these T&Cs, and as more fully described or referenced in the Quote attached to these T&Cs and in any existing and applicable protocols of Advanced.
Any returning Customers of Advanced shall have the obligation and affirmative duty to promptly 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, for their purchase of Product from Advanced. This is imperative so that Advanced may become alerted to such changes prior to attempting to process the new order for Product from Customer; and in order to timely resolve any conflicts between these T&Cs of Advanced and the added terms and conditions of Customer. Failure to do so by Customer may result in cancellation, or delay in processing, of Customer’s contemplated order, by Advanced.
Any modifications of any of the terms and conditions contained in this Agreement, will only be effective if they are in writing and are signed by both Advanced and Customer. 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.
Although Advanced is not required to accept requested order changes from Customer after the order has been originally 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 goods are ordered by Advanced from its material’s supplier; and b) any additional charges for material, labor, stocking or re-stocking, and administrative costs incurred by Advanced as a result of these Customer changes are paid by Customer. Any changes in the Customer’s orders will necessarily result in delays of any previously scheduled Customer 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: 1. If the cancellation notice is timely received by Advanced prior to Advanced shipping any portion of Customer’s Product order to Customer, the cancellation charge shall be ten percent (10%) of the total order price; or 2. If any portion of Customer’s Product order has already been shipped to Customer, all of the Product ordered shall be immediately returned to Advanced by Customer in the same condition in which the original Product was at the time of shipping to Customer, and Customer shall promptly pay Advanced a handling and restocking fee of twenty percent (20%) of the original purchase order amount, along with any shipping, insurance, freight and any other expenses associated with the return of the Product. In the event of any returns of Product by Customer to Advanced, Customer assumes all costs and responsibility for shipping back its Product to Advanced, in suitable and well-constructed packaging, as Customer shall be solely responsible for any damage incurred to the Product while being returned to Advanced.
Galxyl Product sold by Advanced to Customer may be delivered to Customer with certain Galentis Galxyl specifications. It is important to note that such specifications may change from time to time. If such Product does not meet the Galxyl specifications Customer shall immediately deliver written notice of noncompliance to Advanced, with specific description of such alleged noncompliance. Failure to give such notice of noncompliance within twenty (20) days of shipment to Customer of the Product, constitutes acceptance of the Product, and constitutes a complete waiver by Customer of any alleged noncompliance, or of any remedies for such alleged noncompliance. Where notices of noncompliance are timely given by Customer to Advanced, as referenced above, Advanced shall make its best efforts to inform the manufacturer (Galentis) to promptly remedy the problem. As part of this process, Customer may then be requested to provide Advanced, and/or Galentis, with a sample(s) of such nonconforming Product, as soon as reasonably practicable; and it shall be Customer’s sole responsibility to bear any return shipping related expenses. If upon examination by Galentis it is determined that the Product is nonconforming, then replacement conforming Product will be shipped to Customer, without cost to Customer. In such event, any returned nonconforming Product may be retained or disposed of by either Advanced, or Galentis. However, if a disagreement arises about whether the Product is, or is not, in compliance with the required Galxyl manufacturing specifications, then representative samples of the Product shall be submitted to an independent testing laboratory mutually agreed to by Customer, Advanced, and Galentis. The results of said laboratory tests and findings shall then be final and binding on all parties concerned; and all of the costs associated with the laboratory submission shall be borne by the party against which the laboratory decided-namely, either Customer or Galentis. If the laboratory finds that there was, in fact, no noncompliance, Customer shall immediately pay to Advanced any outstanding amounts due on its Product order with Advanced, plus interest at the annual rate of five percent (5%), from the last date payment was due on the outstanding balance for the disputed Product. Further, in the event of finding nonconformance of the ordered Product, if appropriate, Advance, at its sole discretion, may request Galentis the opportunity to provide technical assistance directly to Customer regarding any such nonconforming Product. Except as specifically stated above, Advanced is not liable for the Product performing in any particular manner, or for the Product being suitable for any specific or intended use or purpose, either by Customer or by any third party.
The Customer shall pay shipping, shipping insurance, and freight. Crating charges will be invoiced at cost of material and labor. Advanced may decide to ship the Product 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 Product transfers to the Customer once the Product 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 Product once it leaves Advanced’s plant. Advanced will insure all shipments, in an amount equal to the purchase order of the Customer, with the carrier, unless otherwise instructed. 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.
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 event Advanced will, in writing, designate the requirement to be excepted and the reasoning behind such request.
An invoice will be issued upon completion and shipment of the Product 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 Product is delayed at the Customer’s request, Advanced reserves the right to transfer the ready Product 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.
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 product or service 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 Product order 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.
If Advanced determines that it is necessary to make any changes in the construction, design, materials, and dimensions of the Product, or of other 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.
Customer shall at no time have any ownership or other interest in, or rights to, or right to use, the Galxyl® Trademark or Galxyl Trade Name, nor shall Customer acquire any such rights by purchasing any Product from Advanced under these T&Cs. Nor shall Customer at any time infringe upon, or impair, the Galxyl® Trademark or Galxyl Trade Name. All the intellectual property rights to any inventions, improvements, modifications, or ideas made or conceived by Advanced, Galentis, or Customer, shall exclusively belong to that respective party. Advanced, Galentis, 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, or Galentis, related to the Product, or any modification or customization of the Product as part of the sale of the Product 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 selling any Product, or performing any services for Customer, under this Agreement. All Data (“Data” shall mean any and all data and records required to be made pursuant to the sale of the Product or 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 sale of the Product, or services provided by Advanced, or Galentis) shall be, and remain, the exclusive property of Advanced, and Galentis, respectively. Any copyrightable work, whether published or unpublished, created by Advanced, or Galentis, in connection with or during the sale of the Product, performance of any engineering work, or services by Advanced, shall belong exclusively to Advanced, and Galentis, respectively, and all right, title and interest therein, including, without limitation, worldwide copyrights, shall be the exclusive property of Advanced, and Galentis, respectively. These provisions regarding ownership of intellectual property rights shall survive the termination of this Agreement.
Customer acknowledges and agrees that during the course of ordering and purchasing the Product, and in the course of their dealings with Advanced, and Galentis, Customer may have access or become exposed to, and may become acquainted with, their trade secrets, intellectual property, inventions, analytical procedures, manufacturing processes, designs, specifications, know-how, and technical information, concerning the Product, as well as the operation and business of said parties, including, but not limited to, their respective: customer lists, customers’ habits and needs, confidential customer information, customer financial and order information, customer specifications and histories, their customer contact information, their key industry contacts, vendor and supplier lists and information, vendor and supplier contact information, the identity of and information about sales leads, key industry contacts, pricing, mark ups, advertising, branding of services, public relation and marketing strategies, plans and techniques, customer work product and research, sales and business forecasts, plans and histories, business opportunities, business and profitability data and formulas, operational and financial information, business structures, information about actual work, creative works, services or products, or those under consideration or being planned, policies, practices, procedures, research, technology, ideas, technical processes, devices, operational processes, techniques and methodologies, formulas, drawings, designs, schematics, descriptions, patterns, models, compilations, test materials, programs, software and computer programs and systems, and websites, and any other corelated information, that (a) derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use, and (b) is the subject of their respective efforts that are reasonable under the circumstances to maintain its secrecy. Customer agrees and affirms that all such information is confidential and constitutes the respective confidential proprietary information and trade secrets of Advanced, and Galentis, and shall at all times remain the sole and exclusive property of each of said respective parties (collectively “Confidential Information”). Customer further acknowledges and agrees that said parties have incurred substantial time, effort, costs, and expenses in creating, developing, and compiling their Confidential Information. Customer specifically agrees that he, she, or it shall not, at any time, directly or indirectly, sell, transfer, appropriate, or disclose any such Confidential Information, and shall not at any time use such information, except to the limited extent necessary to complete the purchase of the Product from Advanced.
Advanced shall maintain documents regarding Customer’s order for not less than 10 years, or per the stated Customer Purchase Order requirements, and shall allow access to such records to Customer and its customers.
PLEASE READ THIS PARAGRAPH CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS! AS STATED PREVIOUSLY IN THIS AGREEMENT, ADVANCED IS ONLY A SUB-DEALER OF THE GALXYL PRODUCT, AND IS NOT THE MANUFACTURER OF SUCH PRODUCT. THIS PRODUCT IS MANUFACTURED BY A COMPANY KNOWN AS GALENTIS, AND SUPPLIED TO ADVANCED WITHIN NORTH AMERICA, FOR COMMERCIAL SALE AND DISTRIBUTION ONLY. ADVANCED HAS NO CONTROL OF THE MANUFACTURE, OR MANUFACTURING PROCESS, OF THIS PRODUCT. AS A RESULT, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, ADVANCED MAKES NO WARRANTY, REPRESENTATION, OR PROMISE OF INDEMNITY, REGARDING THIS PRODUCT, IT BEING UNDERSTOOD THAT SUCH PRODUCT SHALL BE COVERED SOLELY BY ANY WRITTEN WARRANTIES OR PROMISES OF INDEMNITY, IF ANY EXIST, WHICH MAY BE PROVIDED BY THEIR RESPECTIVE MANUFACTURER, IN EACH CASE, AND ARE FURTHER SUBJECT TO ANY LIMITATIONS AND DISCLAIMERS SET FORTH THEREIN, AND IN THIS AGREEMENT. ANY WARRANTY CLAIM BY CUSTOMER ON ANY MANUFACTURER’S WARRANTY SHALL BE MADE DIRECTLY BY CUSTOMER TO THE MANUFACTURER OF THE PRODUCT, WITHOUT THE INVOLVEMENT OR PARTICIPATION OF ADVANCED.
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 ANY APPLICABLE 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 PRODUCT, PARTS, OR CUSTOMER PROPERTY, WHICH ARE INCURRED IN, OR RELATE TO, THE SALE OF THE PRODUCT TO CUSTOMER, OR INSPECTION OR TESTING OF THE PRODUCT FOR ALLEGED NONCONFORMITY; OR FOR ANY LOSSES TO, OR THEFT OF, CUSTOMER’S PARTS, PRODUCT, OR PROPERTY, WHILE THEY ARE IN THE POSSESSION OF ADVANCED, GALENTIS, OR THEIR AGENTS. 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 PRODUCT ORDER. 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 Product to coat, or apply to, items (including, but not limited to, any medical item, product, or device) that is/are 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, or to be coated, or applied, with the Product; the Customer is selling or transferring the goods coated, or applied, with the Product, to a third party; and/or the goods coated, or applied with, the Product are under any type of warranty provided by Customer. Customer shall then be required to maintain the following types of insurance(s):
A. Products Liability Insurance Customer 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.
B. Miscellaneous All insurance companies must be authorized to do business in the states, or jurisdictions, 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 Product 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.
C. Condition Precedent The insurance requirement referenced in this section is a condition precedent to Customer taking ownership or possession of the Product, if the Product is being, or will be, used to coat, or apply to, items (including, but not limited to, any medical item, product, or device) that is/are to be implanted in humans or animals.
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, storms, riots or civil unrest, insurrections, acts of terrorism, protests, wars, sabotage, theft, labor shortages or disputes, strikes, lockouts or other labor difficulties, accidents, infestations, breakdown of plants or storage facilities, cyberattacks, bank errors, computer or software failures, interruptions of energy sources, 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, or arbitration, of any third party, naming Advanced as an actual or potential defendant, when the actual or threatened legal proceeding involves allegations of: 1) The alleged willful misconduct or negligent acts or omissions of Customer or of Customer’s owners, members, shareholders, directors, officers, agents, or employees; 2) Customer’s allegedly providing defective specifications or instructions in the course of ordering, or utilizing the Product from Advanced, to coat any goods or parts; 3) Customer’s alleged fraud, misleading statements, misrepresentations, or deceptive or unfair trade or business practices; 4) Customer’s alleged negligent or willful violation of the law ; and/or 5) Customer’s alleged breach of any representations, warranties, or covenants, made by Customer to such third party, or parties. Within fifteen (15) days of the proper service of any demand for arbitration, or 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. The United Nations Convention on Contracts for the International Sale of Goods does not apply to, or govern, this Agreement or the transactions hereby contemplated.
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 the State 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, CROSSCOMPLAINT 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, THE PRODUCT, 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:
1. 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;
2. To issue subpoenas for the attendance of witnesses and subpoenas duces tecum for the production of books, records, documents, and other evidence;
3. To order depositions in the discovery process;
4. To order depositions to be used as evidence;
5. 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;
6. To conduct a hearing on the issues and claims which are in controversy;
7. To issue orders for provisional, injunctive, and equitable relief;
8. 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
9. 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, 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:
Advanced Coating
10723 Edison Court
Rancho Cucamonga, CA 91730
Attention: Steven J. Doltar
Toll free telephone: 800.722.1444
Fax: 909.481.1427
www.advancedcoating.com
If to Customer:
to Customer, or their agent’s last known address
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 probable 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.
No party shall, by virtue of entering into this Agreement, be deemed to be either the legal representative or agent of any other party. The relationship of, and between, Customer and Advanced, shall be that of independent contractors, and not that of an employee/employer. Customer and Advanced agree and acknowledge that neither party hereto is the employee, employer, partner, joint venture, agent, principal, nor legal representative of the other. As such, neither party shall have the right nor authority to make or enter into any contracts, agreements, or commitments in the name, or for the account, of the other party, nor to assume, create, or incur, any liability or obligations of any sort or kind, either express or implied, on behalf of, or against, any other party, nor to make any representation or warranty express or implied, on behalf of, or otherwise bind, the other. No party shall have any fiduciary or other special duty or other relationship to, or with, any other party. Neither party shall make any representation to anyone, expressed nor implied, that they are the agent, principal, employee, employer, partner, joint venture, or legal representative of the other.
This Agreement, and any existing and applicable 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.
