ORDERS AND SALE OF GOODS AND SERVICES TERMS AND CONDITIONS
ESL POWER SYSTEMS, INC. (“ESL”) reserves the right to reasonably alter, change, amend, modify, update, expand, or rescind any of the terms set forth below in its sole discretion to the extent allowed by applicable law.
YOUR RIGHTS AND OBLIGATIONS:
- THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU (THE “CUSTOMER”). PLEASE READ IT CAREFULLY.
- THESE TERMS REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS AND THEREFORE INCLUDE AN AGREEMENT TO ARBITRATE AND WAIVER OF YOUR RIGHT TO BRING CLAIMS IN COURT AND YOUR RIGHT TO A JURY TRIAL.
- BY PLACING AN ORDER FOR PRODUCTS OR SERVICES (COLLECTIVELY, “PRODUCT(S)”) FROM ESL, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS AND NO ALTERATION OF THESE TERMS AND CONDITIONS WILL BE ACCEPTED ABSENT A SIGNED ACCEPTANCE BY ESL. YOU AFFIRM THAT IF YOU PLACE AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY, YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SICH ORGANIZATION OR COMPANY TO THESE TERMS.
- YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES IF YOU (A) DO NOT AGREE TO THESE TERMS, OR (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH ESL.
- APPLICABILITY
These Terms and Conditions (“Terms”) apply to the purchase and sale of products and services from ESL. These Terms, along with any accompanying quotations (“Quotation(s)”) and/or order confirmation (“Order Confirmation”) (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement supersedes any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. ESL expressly rejects Customer’s general terms and conditions of purchase, and fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions or serve to modify or amend these Terms. An acceptance of ESL’s Quotation or Order Confirmation by Buyer is a prerequisite to the purchase of the Products and shall operate as an acceptance of these Terms which are expressly incorporated into the Quotation and/or Order Confirmation. - TITLE AND RISK OF LOSS
Title to ESL Products sold to Customer shall remain with ESL until payment is made in full by Customer and received by ESL. Such reservation of title is for the purpose of securing the purchase price (and thus constitutes securing and reserving a purchase money security interest) and shall not relieve Customer of the duty to inspect the Products upon receipt, to notify ESL of any deficiencies or defects, and to exercise due care in the use, installation, operation, and maintenance of the Products when on the premises of Customer or under the control of Customer. Customer therefore hereby grants and ESL hereby reserves a purchase money security interest in the Products (including all accessions, accessories, parts, supplies and replacements therefore) and the proceeds thereof until all obligations of Customer to ESL from time-to-time are satisfied in full. Customer hereby appoints ESL as its attorney-in-fact to prepare, sign and file in Customer’s name any financing statement or other document necessary to perfect ESL’s security interest and also agrees that ESL may take any action necessary to perfect the security interest of ESL in the Products.
Notwithstanding any reservation of title by ESL, risk of loss and/or damage with respect to the Products, however caused, shall pass to Customer at the time of shipment (which means ESL’s transfer of the Products to the transportation carrier). Customer assumes all of the obligations and risks of an absolute owner at that time and agrees to indemnify and save harmless ESL from any and all loss or damage or claim for loss or damage to persons or properties caused by reason of the use, possession or operation of the Products, unless otherwise stated and agreed to by ESL in writing in ESL’s Quote or Order Confirmation, or required by law. All Products are non-cancelable, non-refundable and non-returnable unless noted otherwise on ESL’s Quotation. - PRICE AND QUOTATIONS
Customer shall purchase the Products from Seller at the prices set forth in ESL’s published publication (which are subject to change without prior notification) as of the date of the Order Confirmation, unless a valid quotation (“Quotation”) exists that otherwise sets the Product price. The prices set forth to Customer and owing for Products are hereinafter referred to as the “Prices”. All written Quotations are valid for thirty (30) days from the date of Quotation unless noted otherwise on ESL’s Quotation.
All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for and pay all such charges, costs, and sales, use, excise or similar taxes, including, but not limited to whenever ESL must itself pay such charges, costs and taxes on Customer’s behalf and/or collect such charges, costs, and taxes from Customer arising out of the sale of Products; provided that Customer shall not be responsible for any taxes imposed on, or with respect to, ESL’s income, revenue, gross receipts, personnel, or real or personal property or other assets. The Prices exclude transportation and insurance costs, which are the responsibility of the Customer. - SHIPMENT AND DELIVERY
All orders will be shipped F.O.B. Origin Corona, CA using ESL’s standard methods for packaging and shipping Products, unless otherwise stated in ESL’s Quotation and/or Order Confirmation. All destination, shipping and other charges shall be paid by Customer in accordance with ESL’s then current shipping and billing practices. ESL shall deliver the Products to Customer’s designated location listed in the Quotation or Order Confirmation. The Products will be delivered within a reasonable time after the receipt of Customer’s purchase order, subject to availability of the Products. Delivery dates given in the Order Confirmation are approximate and estimates only and subject to variations and requirements. ESL shall not be liable for any loss, transit-related damage, or delays in delivery or in performance due to causes beyond its reasonable control including, but not limited to, the events referenced in the force majeure section below. ESL recommends that Customers insure goods in transit. In the event of such delay, the date of delivery or performance shall be extended for a period equal to the time lost because of the delay. Customer is responsible for taking delivery of the Products and shall be responsible for all loading costs and providing equipment and labor reasonably suited for receipt of the Products. Customer is responsible for fees associated with not taking timely delivery of the Products, such as storage fees. ESL may, in its sole discretion, without liability or penalty, make partial shipments of Products to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Customer’s purchase order. - CUSTOMER PICKUP
In certain circumstances, as determined in ESL’s sole discretion, Products purchased by Customer may be available for Customers to pick-up from ESL’s Warehouse. In the event that Customer is informed that Products are available for Customer pick-up and Customer wants to pick-up the Products, Customer agrees that (1) upon written notification that Customer’s order is ready for pick-up, Customer shall pickup Customer’s order of Product(s) within five (5) business days of ESL’s written notification; and (2) if Customer’s order is not picked up by Customer within this 5 business day timeframe, ESL reserves the right in its sole discretion to (a) store the Products and charge Customer a storage fee; and/or (b) to ship the Product using ESL’s standard carrier at the Customer’s expense, including all freight and applicable handling fees, and on the terms of this Agreement applicable for shipping. In the event that ESL chooses to store the Products and charge Customer a storage fee, ESL may thereafter in its sole discretion determine that it will no longer store the Products and decide to ship the Products per the terms above. - INSPECTION
Customer shall inspect the Product at the time of delivery.
If damage is observed or discovered by Customer upon delivery and inspection of the Product, Customer shall (a) at the time of delivery sign the Bill of Lading as “Received with Damages” for any visible damage; and (b) file a freight claim with ESL within 7 days of delivery of the Product to Customer by emailing your claim to sales@eslpwr.com. Freight claims filed either after this 7-day window (i.e., after 7 days from delivery have passed) and/or without the proper notation of “Received with Damages” on the Bill of Lading may be denied. In the event of such a denial, Customer will be financially responsible for any and all replacement and repair costs, whether relating to the Product, the shipment, or other associated costs.
If further defects or discrepancies are observed by Customer, Customer shall notify ESL by email at sales@eslpwr.com of any defects or discrepancies within 5 (five) business days of receipt of the Products. Discrepancies refers to Products that are non-conforming goods because either (i) the Product shipped is different than identified in the Quotation or Order Confirmation; or (ii) the Product’s label or packaging incorrectly identifies its contents. Failure to provide any such notice within such time shall be deemed an acceptance in full of any such delivery.
If Customer timely notifies ESL of any Products that are nonconforming goods, Customer shall, in its sole discretion, (i) replace such nonconforming goods with conforming Products, or (ii) credit or refund the Price for such nonconforming goods together with any reasonable third-party shipping and handling expenses actually incurred and paid by Customer in connection therewith. Customer shall ship, at its expense and risk of loss, the Products constituting nonconforming goods to ESL’s facility. If ESL exercises its option to replace nonconforming goods, ESL shall, after receiving Customer’s shipment of the Products that are nonconforming goods, ship to Customer, at Customer’s expense and risk of loss, the replaced Products.
Customer acknowledges and agrees that the remedies set forth in this section are Customer’s exclusive remedies for nonconforming goods. Except as provided hereunder, all sales of Products to Customer are made on a one-way basis and Customer has no right to return Products purchased under this Agreement to ESL. - PAYMENT
Unless Customer maintains an account with ESL, all amounts due for and relating to Products are due at the time of purchase. In the event that Customer qualifies for and maintains an open account with ESL, Customer agrees to pay ESL all amounts due within thirty (30) days of the date of invoice from ESL. Customer agrees to pay interest on all late payments at the lesser rate of one and one-half percent (1.5%) per month or the highest rate permissible under applicable law, whichever is less, on any unpaid amount for each calendar month (or fraction thereof) that such payment is delinquent and not received by ESL. In the event of ESL’s referral to an attorney, a collection agency, and/or other person and/or entity for collection of unpaid amounts from Customer, reasonable attorney’s fees and all costs incurred for collection of the overdue and/or late amounts shall be paid by Customer. Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with ESL, whether relating to ESL’s breach, bankruptcy, or otherwise. - ESL’S REMEDIES
Should Customer fail to make any payment when due, fail to perform any other of Customer’s obligations hereunder, and/or should Customer be or become insolvent or be a party to any bankruptcy or receivership proceeding prior to full payment of all amounts payable hereunder, ESL may to the extent allowed by law: (a) with or without demand or notice to Customer declare the entire amount unpaid immediately due and payable; (b) enter upon the premises where the Products may be found and remove the Products without breach of peace (Customer shall assemble the Products and make the Products available to ESL at a place reasonably convenient to both parties and shall permit and assist ESL in effecting the retaking and removal of the Products); and/or (c) sell any or all of the Products as permitted under applicable law, applying the proceeds of the sale to payment of the expenses of retaking, repairing and selling the Products, reasonable attorneys’ fees and to the satisfaction of all indebtedness then due and unpaid. Any surplus shall be paid to Customer, and any deficiency shall be immediately paid to ESL by Customer. The remedies provided herein shall be cumulative and in addition to all other remedies provided by law or equity or under the Uniform Commercial Code. - LIMITED WARRANTY
ESL warrants to Customer that the Products shall be free from defects in material and workmanship under normal use and service for a period of one (1) year from date of shipment to Customer. Written notice and an explanation of the circumstances of any alleged warranty claim that the Products are defective in material or workmanship shall be given promptly by Customer to ESL after the Customer discovers, or upon reasonable inspection should have discovered, the alleged defect, and in all events written notice must be received by ESL within the one (1) year warranty period, before the expiration of the applicable one (1) year warranty period. The warranties under this section do not apply (and ESL will not be liable) where the Products are subject to misuse, abuse, neglect, negligence, abnormal physical stress or environmental conditions, improper operations, improper installation, improper maintenance, improper testing, improper repair, improper storage or handling, use contrary to any instructions issued by ESL, alteration, modification, accident and/or unusual degradation of the Products or parts due to an unsuitable installation or operating environment. The warranties under this section do not apply where the Products have been reconstructed, repaired, or altered by anyone other than ESL or its authorized representative; or used with any third-party product, hardware, or product that has not been previously approved by ESL.
No representation or other affirmation of facts, including but not limited to statements regarding capacity, suitability for use, or performance of the Products, shall be or be deemed to be a warranty or representation by ESL for any purpose, nor give rise to any liability or obligation of ESL whatsoever. In the event of a warranty claim, ESL reserves the right to inspect and test the allegedly defective Product. Customer’s sole and exclusive remedy in the event of breach of warranty, as set forth herein, is expressly limited to either the following, which shall be at ESL’s sole election: (a) the correction of the defect by adjustment, repair, modification, or replacement (shipped at Customer’s expense and risk of loss); or (b) issuance of a credit or refund of the purchase price for the defective Product, less any applicable discounts, rebates, or credits. In the event that a Product is defective or requires inspection, testing, repair, modification, and/or replacement, Customer shall return the Product as directed by ESL. Customer shall request a Return Merchandise Authorization (RMA) PRIOR TO RETURNING THE DEFECTIVE PRODUCT TO ESL. Returned Products must include ESL’s RMA number and reason for the return. Freight and all shipping costs for returning the Product to ESL is the responsibility of Customer. ESL will factory inspect, repair, modify or replace and return Product(s), or issue a credit or refund, under warranty within the above guidelines, at its sole discretion. Customer has no right to return for repair, replacement, credit, or refund any Products except as set forth in this Section. THIS SECTION SETS FORTH THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND ESL’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN.
WARRANTIES DISCLAIMER: EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN AND TO THE EXTENT PERMISSIBLE BY LAW, ESL MAKES NO OTHER WARRANTIES EXPRESSED OR IMPLIED WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY ESL, OR ANY OTHER INDIVIDUAL OR ENTITY ON ESL’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION OF THE AGREEMENT. THIS WARRANTY EXTENDS ONLY TO CUSTOMER FROM ESL OR ITS AUTHORIZED DISTRIBUTOR OR SALES AGENT. - LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ESL OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR LOSS OF PROFITS OR REVENUE OR DIMINUTION IN VALUE, OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL , OR ENHANCED DAMAGES OR OTHER SIMILAR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR ANY BREACH OF WARRANTY OR AGREEMENT TO PURCHASE THE PRODUCTS OR OBLIGATIONS THEREUNDER, REGLARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE; (B) WHETHER ESL WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM(S) IS BASED.
ESL SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN SHIPMENT, INSTALLATION OR FURNISHING OF THE PRODUCTS OR SERVICES HEREUNDER.
IN NO EVENT SHALL ESL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE PRODUCTS AND SERVICES SOLD BY ESL, EXCEPT AS RELATED TO LIABILITY RESULTING FROM ESL’S GROSS NEGLIGENCE, WILLFULL MISCONDUCT, OR DEATH OR BODILY INJURY RESULTING FROM ESL’S ACTS OR OMISSIONS. - COMPLIANCE WITH LAW
Customer shall at all times comply with all laws applicable to this Agreement, Customer’s performance of its obligations hereunder, and Customer’s use of the Products. Without limiting the generality of the foregoing, Customer shall (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase or use of the Products; and (b) not engage in any activity or transaction involving the Products, by way of shipment, use, or otherwise, that violates any law. - GOVERNING LAW, JURISDICTION, AND VENUE
All rights hereunder will be governed by the laws of the State of California, without giving effect to any conflicts of laws provisions thereof. The Agreement for the purchase and sale of the Products is deemed to be entered into in Corona, California, regardless of the order or place of signing, and it is expressly agreed that any action or proceeding arising out of the purchase and sale of the Products, including, without limitation, actions for collection of amounts due from Customer and any warranty claims by Customer, shall be subject to the exclusive jurisdiction of the appropriate Court located in the County of Riverside, State of California, and the parties each hereby expressly consent to the exclusive and personal jurisdiction of such courts and in California, and hereby irrevocably and unconditionally waive any objection to the laying of venue of any such action or proceeding brought in any such Court. Customer expressly acknowledges that California is a fair, just and reasonable forum and agrees not to see removal or transfer or any such action filed by ESL. - ARBITRATION OF DISPUTES
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Agreement to Arbitrate. The Parties agree that this Agreement and any dispute, claim, or controversy arising out of or relating to this Agreement, the goods or services provided hereunder, or the breach, termination, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined exclusively by binding arbitration.
The arbitration shall be administered by JAMS (or, if JAMS is unavailable or declines to administer, by the American Arbitration Association) pursuant to its Comprehensive Arbitration Rules and Procedures then in effect, a copy of which can be accessed at: https://www.jamsadr.com/rules-comprehensive-arbitration. Judgment on the arbitration award may be entered in any court having jurisdiction thereof.
Location. The arbitration shall take place in Riverside, California, or at such other location as the parties may mutually agree in writing. The arbitration may be conducted by videoconference or teleconference if consented to by the parties.
Governing Law. This arbitration provision shall be governed by and construed in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and, to the extent not preempted by federal law, the laws of the State of California, including the California Arbitration Act, California Code of Civil Procedure Section 1280 et seq.
WAIVER OF RIGHTS. BY AGREEING TO ARBITRATE, EACH PARTY UNDERSTANDS AND ACKNOWLEDGES THAT IT IS WAIVING ITS RIGHT TO MAINTAIN A COURT ACTION TO RESOLVE ANY DISPUTE, CLAIM, OR CONTROVERSY, AND ITS RIGHT TO A JURY TRIAL. EACH PARTY FURTHER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS ARBITRATION PROVISION AND AGREES TO BE BOUND BY IT.
CLASS ACTION AND REPRESENTATIVE ACTION WAIVER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY ARBITRATION SHALL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. THE PARTIES EXPRESSLY WAIVE ANY RIGHT TO BRING OR PARTICIPATE IN ANY CLASS ACTION, COLLECTIVE ACTION, OR OTHER REPRESENTATIVE ACTION IN ANY FORUM, WHETHER IN ARBITRATION, COURT OR OTHERWISE. NEITHER PARTY SHALL HAVE THE RIGHT TO CONSOLIDATE CLAIMS WITH THOSE OF OTHER PARTIES OR TO PARTICIPATE IN A CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING, WHETHER AS A PLAINTIFF, CLASS MEMBER, OR OTHERWISE.
Mutuality. The agreement to arbitrate is mutual and binding upon both parties equally. Each party shall have the right to invoke arbitration to resolve any covered dispute, claim, or controversy against the other, and each party shall be equally bound by any arbitration award rendered pursuant to this provision.
Single Arbitrator; Discovery; Procedures. The arbitration will be held before a single neutral arbitrator. The arbitrator shall be a retired judge or an attorney licensed to practice law in California with at least ten (10) years of experience in commercial law and contract disputes. The arbitrator shall be selected in accordance with the rules of the administering organization. The Arbitrator has the power to decide, among other things, any motions brought by any Party, including discovery motions, motions for sanctions, motions for summary judgment and/or adjudication, motions to dismiss, and demurrers, applying the standards set forth under the California Rules of Civil Procedure. Neither Party will be denied the right to file a pleading challenge (which will be resolved prior to the commencement of discovery in the arbitration) or motion for summary disposition of a particular claim or issue. The Arbitrator may also grant injunctions and all other types of relief the Parties would otherwise be entitled to in court. The Arbitrator also has the authority to order discovery, by way of deposition, interrogatory, document production, or otherwise, as the arbitrator considers necessary to a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration and in accordance with California Code of Civil Procedure. The arbitrator shall issue a written, reasoned decision setting forth the essential findings and conclusions upon which the award is based. The Arbitrator will apply California substantive law relating to all claims and defenses the same as if the matter had been heard in court (except to the extent preempted by federal law) and will administer and conduct any arbitration in accordance with the Federal Rules of Civil Procedure and the Federal Evidence Code.
Costs and Fees. Unless otherwise required by applicable law or determined by the arbitrator otherwise in an award, the Parties shall share equally all administrative fees, costs and expenses charged by the arbitration administrator and all arbitrator fees, costs and expenses. Each party shall bear its own attorneys’ fees and costs, unless the arbitrator determines that applicable law requires a different allocation.
Preservation of Statutory Rights. Nothing in this arbitration provision shall be construed to limit any party’s ability to seek provisional or injunctive relief from a court of competent jurisdiction in connection with any dispute, to the extent such relief is available under applicable law. The arbitrator shall have the authority to award any remedy available under applicable law and the parties do not waive any substantive statutory rights by agreeing to arbitration.
Confidentiality. To the extent permitted by law, all arbitration proceedings, including any filings, evidence, testimony, and awards, shall be treated as confidential by the parties, except as may be necessary to enforce the arbitration award or as otherwise required by law. Neither party shall disclose any information concerning the arbitration to any third party without the prior written consent of the other party, except as may be required by law, legal process, or to enforce the arbitrator’s award. Any permitted disclosure shall be limited to the minimum information necessary.
Finality and Enforcement. The arbitrator’s decision shall be final and binding upon the parties. Judgment upon the award rendered by the arbitrator may be entered in any court having competent jurisdiction thereof. The parties agree that the arbitrator’s award shall be enforceable in any court of competent jurisdiction and that any party may seek judicial enforcement of the award without first seeking confirmation of the award.
Initiating Arbitration. Arbitration must be initiated upon the express written notice of either Party to the other. A demand for arbitration served on ESL must be sent to sales@eslpwr.com and a demand for arbitration served on Customer will be given to Customer’s most recent address and/or email on file with the Company (unless Customer specifies otherwise). The written notice must identify and describe the nature of all claims asserted and the facts upon which the claims are based (rather than mere factual or legal conclusions). Written notice of arbitration must be initiated within the limitations period applicable to the claim(s), or within one (1) year of the date the claiming party first knows or should have known of the event giving rise to the claim(s) if no statutory limitation period applies.
Severability. If any portion of this arbitration provision is determined by a court or arbitrator to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect the validity of the remaining portions of this arbitration provision, which shall remain in full force and effect. Notwithstanding the foregoing, if the Class Action and Representative Action Waiver set forth above is found to be unenforceable with respect to a particular claim or request for relief, then that claim or request for relief shall be severed and shall be decided by a court of competent jurisdiction and not through arbitration.
Survival. This arbitration provision shall survive the termination or expiration of this Agreement and any other relationship between the parties. - MISCELLANEOUS TERMS
No Waiver. No waiver by ESL of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by ESL. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement by ESL operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder by ESL precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by ESL.
Force Majeure. ESL shall not be liable or responsible to Customer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s reasonable control, including, the following force majeure events: (a) acts of God; (b) flood, fire, earthquake, pandemic, epidemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) order or action by any governmental authority or requirements of law; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other events beyond the control of ESL.
Notices. Notice or other communications relating to this Agreement must be delivered in writing to:
ESL Power Systems, Inc.
Attn: Sales Department
2800 Palisades Systems, Inc.
Corona, California 92878-9427
With a copy to: Sales@eslpwr.com
Agreement and Modification. Customer hereby acknowledges receipt of a true and complete copy hereof. No addition to or modification of any of the Terms as they appear herein shall be binding upon ESL unless signed in writing by a duly authorized representative of ESL. Notwithstanding the foregoing, typographical and clerical errors in quotations, orders and acknowledgments are subject to correction.
Assignment. The rights, interests, and obligations of Customer hereunder are not assignable, transferrable, or delegable without the prior written consent of ESL, which may be withheld in ESL’s sole discretion. Any attempted or purported assignment or delegation of any of the rights, interests, duties or obligations hereunder without such consent is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
No Third-Party Beneficiaries. This Agreement benefits solely the parties to this Agreement. Nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
Relationship of the Parties. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Severability. If any provision or provisions hereunder shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ ALL OF THE TERMS, CONDITIONS AND PROVISIONS HEREIN, UNDERSTANDS THEM AND AGREES TO BE BOUND BY THEM. FURTHER, CUSTOMER AGREES THAT THE TERMS, CONDITIONS AND PROVISIONS HEREIN ARE INTENDED TO SUPERSEDE ANY PRIOR INCONSISTENT TERMS, CONDITIONS AND PROVISIONS, WHETHER ORAL OR IN WRITING, EXPRESS OR IMPLIED, AND ALL OTHER PRIOR INCONSISTENT COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF. IT IS UNDERSTOOD AND AGREED THAT ESL SHALL NOT BE BOUND BY ANY CHANGES IN THE TERMS, CONDITIONS AND PROVISIONS HEREIN WITHOUT THE WRITTEN AGREEMENT OF ESL.
