STANDARD TERMS AND CONDITIONS OF SALE AND SERVICES
AZBIL NORTH AMERICA, INC., TERMS AND CONDITIONS REV. 2024
1. Terms. The terms and conditions of sale and services (“Terms of Sale and Services”) from Azbil North America, Inc. (“Seller”) as set forth below apply to all sales by Seller to any buyer (“Buyer”) except to the extent that the Terms of Sale have been expressly altered or modified in writing and signed by Seller; Seller shall have the right to correct clerical errors or omissions in quotations, invoices, or other documents. Any terms or conditions contained in any acceptance or confirmation of Seller’s quotation or contained in any purchase order which are different from or in addition to the Terms of Sale set forth below shall be deemed material alterations, and notice of objection to differing terms is hereby made. Such additional or differing terms are excluded from the terms except as otherwise may be agreed to in writing and signed by Seller. The Buyer’s assent to the Terms of Sale herein shall be conclusively evidenced by (i) any written or oral assent by the Buyer to the Terms of Sale or (ii) the Buyer’s receipt of the goods covered by the Terms of Sale and the Buyer’s failure to object to any term or condition of the Terms of Sale within ten (10) days after receiving such goods. Should any provision of these Terms of Sale be held unenforceable or invalid for any reason, said provision shall be deemed to be modified to conform to applicable law and these Terms of Sale, and as so modified, shall continue to be in full force and effect. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver, nor shall any single or partial waiver operate as a waiver of any other or future right, power or privilege hereunder. Unless otherwise agreed to in writing by Seller, a quotation that has been accepted by Buyer, or an order that has been received by Seller, cannot be cancelled or modified.
2. Prices and Terms of Payment. Unless otherwise agreed to in writing and signed by Seller, the goods sold hereunder are invoiced at the price in effect at the time the quotation was accepted or assented to by Buyer. Except as otherwise specifically provided, prices are ExW Seller’s designated facilities (INCOTERMS 2020). All prices are subject to change without notice. Payment for the goods is due thirty (30) days after Seller invoice date. All payments shall be in U.S. dollars unless otherwise agreed in writing by Seller. Late payments shall bear interest on the unpaid amount at an interest rate of 1.5 % per month or the maximum lawful monthly interest rate, as well as any reasonable attorney’s fees. Buyer shall pay for the goods by certified check, through a confirmed irrevocable letter of credit under terms and conditions agreed to in writing by Seller, or in any other manner agreed by the parties in writing. All sales, excise, duties, customs, tariffs, and similar taxes or charges which the Seller may be required to pay or collect with respect to the goods purchased herein (except for taxes on Seller’s income) shall be added to the price for such goods or charged to Buyer and paid by Buyer. Buyer shall indemnify Seller for the same unless Buyer provides Seller with a proper tax exemption certificate.
3. Delivery.
a. All goods shall be shipped ExW Seller’s designated facilities (INCOTERMS 2020), unless otherwise agreed upon in writing. Title to any goods sold hereunder shall pass to Buyer on delivery of the goods at Seller’s facility. All goods not stocked by Seller in the United States shall be shipped on terms that shall be specified by Seller in its proposal or acceptance of the applicable order. Shipment dates are approximate only. No shipment date requested or specified by Buyer is binding on Seller unless an officer of Seller specifically agrees to the request or specification in writing. Seller shall package the goods consistent with industry standards for the mode of transportation for shipment. Buyer shall give reasonable advanced, written notice to Seller to allow Seller to comply with any special packaging request of Buyer, and Buyer shall bear all costs of fulfilling such requests.
b. To secure payment of any unpaid portion of the purchase price, Buyer hereby grants to Seller a purchase money security interest in the goods, together with all replacements, substitutions, additions, attachments, repairs, accessions, and all proceeds thereof (including any insurance proceeds arising out of loss or damage to the goods). Buyer shall, upon request by Seller, provide all information and signatures required by Seller to perfect such security interest. Seller reserves all rights granted to a secured creditor under Arizona and other applicable Uniform Commercial Codes, including but not limited to the right, upon demand, to repossess equipment, materials or spare parts delivered hereunder if Buyer fails to make timely payments. To simplify such repossession, Seller may require the Buyer to assemble the collateral and make it available to Seller at a place reasonably convenient to the parties and designated by Seller.
c. Buyer shall conduct a reasonable and complete inspection of the goods delivered hereunder after Buyer’s receipt of the goods. All claims for damage to goods, errors, defects (other than warranty defects) shall be made in writing to Seller within ten (10) days after delivery of the applicable goods, and such notice shall specify all the claimed defects, errors, or nonconformities giving rise to the rejection; any failure to specify any error, defect, shortage or nonconformity shall constitute a waiver of such error, defect, shortage or nonconformity. Buyer’s failure to make any such claim within such ten (10) day period shall constitute an irrevocable acceptance of the goods and shall be conclusive evidence that such shipment of goods fully complies with all terms, conditions, and specification relating to such goods. Each shipment of goods shall be accepted or rejected in its entirety, and the Buyer’s acceptance shall be final and irrevocable. If Seller is responsible for the order shortage or discrepancy, Seller shall correct such non-delivery, shortage or discrepancy by delivering substitute products C.I.F. (INCOTERMS 2020) Buyer’s designated premises within a reasonable time.
4. On-Site Service
a. If the Services comprise any Service to be rendered at a location designated by the Purchaser, the Purchaser shall provide all necessary equipment, labour forces, electricity, water, working spaces, hand sanitizers and telecommunications equipment without any charge to Azbil. The Purchaser may also be required to submit a Material Safety Data Sheet (MSDS) to Azbil. If Azbil determines that the location is prone to explosion or radiation hazard, Azbil may submit to the Purchaser a list of requirements to comply with when performing the Service(s).
b. Without limitation or prejudice to the foregoing, the Purchaser shall, or shall procure the occupier of the premises where the Service(s) are or will be performed to, comply with its obligations, including taking measures to ensure that (i) the workplace; (ii) all means of access to or egress from the work place; and (iii) any machinery, equipment, plant, article or substance kept on the workplace, are safe and without risk to the health of every person within those premises, whether or not the person is at work or is an employee of the occupier.
5. Warranties, Exceptions, and Disclaimers.
a. Seller warrants all goods sold hereunder bearing the trademark “azbil” will substantially conform to the specifications published for such goods under normal use and application, subject to the further provisions of this Section 4. Only goods not substantially conforming to such specifications shall be considered “defective in workmanship or materials” for the purposes of this Section. Goods returned transportation prepaid to Seller’s facility within twelve (12) months after shipment of the goods by Seller and which are found by Seller to be defective in workmanship or materials, shall be repaired or replaced, at Seller’s option, free of charge and return-shipped lowest cost transportation prepaid. If Buyer requires premium transportation, Buyer will be billed for the difference in transportation costs. No goods shall be returned to Seller without a Returned Material Authorization (“RMA”). All returns must reference the RMA on the shipping label. This goods-only warranty does not cover travel and labor expenses. Repaired or replaced goods shall be warranted for the remainder of the unused warranty term or for ninety (90) days from shipment, whichever is longer. THE PARTIES EXPRESSLY AGREE THAT REPAIR OR REPLACEMENT OF DEFECTIVE GOODS, OR REFUND OF THE PURCHASE PRICE, AT SELLER’S OPTION, SHALL CONSTITUTE THE EXCLUSIVE REMEDY OF THE BUYER AND THE EXCLUSIVE LIABILITY OF SELLER. Goods which are manufactured by third parties other than Seller, Azbil Corporation or their affiliates are warranted in accordance with the published warranty of the supplier to the extent Seller has the right to assignor transfer such guarantees . Unless otherwise agreed in writing, Buyer shall be responsible for providing, maintaining and ensuring the compatibility of any hardware, software, electrical or other physical requirements necessary for the application of the goods.
b. The warranties set forth in Section 4.a shall not apply in the following cases: (i) modification to the goods, not made, specifically required in writing by, or approved in writing prior to modification by Seller; (ii) use of the goods with equipment or software not supplied or approved in writing by Seller; (iii) misuse or abuse of the goods or improper maintenance of the goods; (iv) exposure of the goods to conditions beyond the environmental, power or operating constraints specified by Seller; (v) installation or wiring of the goods other than in accordance with Seller’s instructions or (vi) Force Majeure. Any costs incurred by Seller in the repair of faults or errors related to these actions shall be reimbursed by Buyer at Seller’s then-current rates, and Buyer shall indemnify Seller against any damages suffered by Seller that are directly related to such faults or errors. Items specifically excluded from the warranty in Section 4.a and which will not be repaired or replaced free of charge include backlight lamps for LCD displays, fuses, and components subject to wear or burnout through usage.
c. WITH THE EXCEPTION OF THE WARRANTIES SET FORTH IN SECTION 4.A, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTIES, AND NO WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE, OR COURSE OF DEALING. SELLER DISCLAIMS ANY WARRANTY AGAINST EROSION OR CORROSION OF ANY SYSTEM IN WHICH THE GOODS ARE SOLD OR INSTALLED, AND THE PARTIES ACKNOWLEDGE THAT ANY EROSIVENESS OR CORROSIVENESS OF THE SYSTEM IN WHICH THE GOODS SOLD OR INSTALLED, AND ANY RESULTING EROSION OR CORROSION, SHALL NOT CONSTITUTE A WARRANTY DEFECT.
d. Warranty for Software Product: If the Purchaser informs Azbil of non-compliance with the Specifications in a software Product and provides a description of the non-compliance along with documentation evidencing repeated non-compliance within twelve (12) months after the software Product is delivered to the Purchaser, whether electronically or otherwise accepted by the Purchaser in accordance with Section 11 (the “Software Product Warranty Period”), Azbil will, at its option and expense: a) modify the software Product at Azbil’s facility; b) make available to the Purchaser instructions for modifying the non-compliant software Product, or c) make available at Azbil’s facility, a replacement software Product: provided, however, that Azbil does not warrant that software Product:
(i) suffices for any purpose not expressly set out in documents provided by Azbil;
(ii) operates in accordance with any procedure not expressly set out in documents provided by Azbil;
(iii) operates without pauses;
(iv) operates without mutual interference with other software;
(v) is free from bugs or errors; or
(vi) that bugs or errors of the software Product are remediable.
Modified or replacement software Products are warranted for the remainder of the unused Software Product Warranty Period.
e. The foregoing software warranty does not apply to non-compliance not caused by Azbil, including but not limited to:
(i) non-compliance caused by misuse, improper use or abuse of the software Product not in accordance with Azbil’s instructions by the Purchaser or any third party;
(ii) non-compliance caused by use of the software Product for any purpose other than expressly set out in documents provided by Azbil;
(iii) non-compliance caused by improper maintenance of the software Product or the hardware in which the software Product is installed;
(vi) non-compliance caused by relocation of or modification to the hardware in which the software Product is installed;
(v) non-compliance caused by the Purchaser’s failure to implement quality control measures proposed by Azbil;
(vi) non-compliance caused by other software together with which the software Product operates;
(vii) non-compliance caused by modification to the System Product regarding which the software Product operates or other system related thereto;
(viii) non-compliance caused by the effect of another system product than the System Product regarding which the software Product operates;
(ix) non-compliance caused by a Force Majeure Event; or
(x) non-compliance caused by viruses, worms, trojan horses and other similar things.
f. Warranty for System Product: If the Purchaser informs Azbil of non-compliance with the Specifications in a System Product within twelve (12) months after the System Product is delivered to the Purchaser’s designated site, Azbil will investigate the cause of the non-compliance of the System Product and correct the non-compliance of the System Product in accordance with Section 14.1 through 14.4, if the non-compliance is in any hardware or software Product, or in accordance with Section 14.5, if the non-compliance is in any Third-party Product. The Purchaser, however, shall pay fees for the investigation to Azbil if:
(i) the non-compliance is caused by a product other than the Products;
(ii) the non-compliance is caused by a hardware or software Product, but the Hardware Product Warranty Period or Software Product Warranty Period of such Product is expired;
(iii) the non-compliance is caused by modification to the System Product or other system related thereto;
(iv) the non-compliance is caused by the Purchaser’s failure to implement quality control measures proposed by Azbil;
(v) the non-compliance is caused by misuse, improper use or abuse of the System Product or other system related thereto; or
(vi) the non-compliance is not caused by Azbil.
g. Warranty for Maintenance Service: During the period of one (1) month after Azbil completes maintenance Service, Azbil shall correct without fees any malfunction in the Product(s) for which Azbil provided the maintenance Service. Provided, however, that the foregoing warranty does not apply to defects not caused by Azbil, such as:
(i) a defect caused by misuse, improper use or abuse of the Product not in accordance with Azbil’s instruction by the Purchaser or any third party;
(ii) a defect caused by improper maintenance of the Product;
(iii) a defect caused by failure to repair the defect found in the course of the maintenance Service by Azbil;
(iv) a defect of equipment or parts thereof for which Azbil provided maintenance Service;
(v) a defect caused by modification, repair, adjustment or parts replacement by the Purchaser or any third party without prior written approval by Azbil;
(vi) a defect caused by the use of any associated complementary hardware or software; or
(vii) a defect caused by a Force Majeure Event.
6. Indemnification.
a. In the event Buyer has furnished specifications or drawings to Seller and Seller manufactures or modifies goods in accordance with such drawings or specifications, Buyer agrees to hold Seller harmless against any and all Claims (defined below) asserted against Seller, its employees and agents, by any person or other legal entity, due to injury or death of any person, damage or destruction to personal or real property, or because of infringement or alleged infringement of any patent, design, copyright, trade secret, tradename, or trademark, which claims arise out of or in connection with the sale, use, or inability to use any of the goods sold hereunder which are produced out of Seller’s compliance with the drawings or specifications furnished to Seller by Buyer.
b. In addition to the indemnification obligation set forth in Section 5.a, Buyer shall indemnify, defend, and save and hold harmless Seller from and against all losses, liabilities, costs, and expenses (including without limitation attorneys’ fees) arising out of third party claims, arising from Buyer’s material breach of these Terms of Sale, the grossly negligent acts or omissions of Buyer or its agents, employees and subcontractors, or the willful misconduct or breach of applicable law by any of the foregoing. Seller shall promptly deliver to the Buyer any notice or papers served upon it in any proceeding covered by the applicable indemnification obligations and will defend the same at its expense. Seller shall, however, have the right to participate in the defense at its own expense. Seller shall provide to Buyer the reasonably requested information, assistance and authority, at Buyer’s expense, to assist Buyer in defending against such Claims. In no event shall Seller incur any obligation of any kind as a result of agreement or settlement by Buyer of any Claims without the prior written consent of Seller.
c. IN NO EVENT SHALL AZBIL BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES SUCH AS, WITHOUT LIMITATION, LOSS OF ANTICIPATED PROFITS, LOSS OF GOODWILL, OVERHEAD OR OTHER ECONOMIC LOSS, RELATING TO OR RESULTING FROM THE PRODUCTS OR ANY PART OF THE PRODUCTS SOLD PURSUANT HERETO, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, THE NEGLIGENCE OF AZBIL, OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAWS, AZBIL’S LIABILITY FOR ANY DAMAGE HEREUNDER SHALL BE LIMITED TO THE PRICE OF THE PRODUCTS IN RELATION TO WHICH SUCH DAMAGE IS CLAIMED WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE.
d. AZBIL SHALL HAVE NO LIABILITY WITH RESPECT TO, AND SHALL NOT BE OBLIGATED TO INDEMNIFY OR HOLD HARMLESS THE PURCHASER, OR ITS AFFILIATES, OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES FROM OR AGAINST ANY COST, LOSS, EXPENSE, DAMAGE OR LIABILITY ARISING OUT OF OR OTHERWISE IN RESPECT OF THE PERFORMANCE OF SERVICES OTHER THAN ANY SUCH COST, LOSS, EXPENSE, DAMAGE OR LIABILITY RESULTING FROM THE WILLFUL MISCONDUCT OR FRAUD OF AZBIL OR ANY OF ITS DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, PARTNERS, MEMBERS OR AGENTS.
7. Confidentiality. Information one party provides (“Disclosing Party”) to the other party (“Receiving Party”) that a reasonable person would understand to be the Disclosing Party’s confidential information shall be the Disclosing Party’s “Confidential Information.” Prints, drawings, manufacturing processes, research, data, databases, software, inventions, design and engineering concepts, and other non-public information relating to the goods, Seller’s and its affiliates’ business activities and operations, shall be considered Seller’s Confidential Information. Receiving Party shall not disclose any part of Disclosing Party’s Confidential Information without Disclosing Party’s prior written consent. Receiving Party will restrict disclosure of Disclosing Party’s Confidential Information to Receiving Party’s employees, subcontractors and agents on a ‘need-to-know’ basis who are subject to confidentiality obligations similar to those in this Agreement. Confidential Information does not include information that: (a) was in the public domain at the time of disclosure without breach of these Terms of Sale; (b) that Receiving Party knew at the time of Disclosing Party’s disclosures; or (c) that Receiving Party independently developed. Receiving Party may disclose Disclosing Party’s Confidential Information pursuant to a court order or as law otherwise compels; provided, Receiving Party promptly notifies Disclosing Party and provides reasonable assistance to Disclosing Party. All Confidential Information is and shall remain Disclosing Party’s exclusive property. In addition to any other remedies, in the event of breach of this Section 6, Disclosing Party is entitled to an injunction restraining such actions without proving actual damages or threatened irreparable harm.
8. Drawings. Seller’s prints or drawings, whether furnished by Seller or its affiliates to Buyer before or after the effective date of any order, are the property of Seller and its affiliates, and Seller and its affiliates retain any and all intellectual property rights therein. Provision or disclosure of such prints or drawings to Buyer does not convey any permission to manufacture the related goods, and Seller grants no license, express or implied, by virtue of provision or disclosure of any drawings or materials to Buyer other than the right of Buyer to use the specific materials provided in the form delivered by Seller to Buyer for sole the purpose of using the goods, and subject to Buyer’s confidentiality obligations under Section 6.
9. Product Changes and Discontinuances. Seller shall have the right at any time and without liability or obligation of any kind to Buyer to discontinue the manufacture of any or all of the goods or of any other products manufactured by Seller or its affiliates, and to change, alter, re-design, improve or otherwise modify in any respect whatsoever, whether or not similar in kind or nature to the foregoing, any or all of the goods or any other products manufactured by Seller or its affiliates, without incurring any obligation to add, install or otherwise make modifications to any goods or other products manufactured or sold by Seller or its affiliates. No discontinuations or changes will be made that would affect goods for which Seller has issued an order acknowledgement.
10. Force Majeure.
Neither party shall be liable for any failure to meet its obligations if such failure is due to any cause beyond the party’s reasonable control, including, but not limited to: (i) fire, flood, earthquake, storm or other natural disasters; (ii) epidemic or plague (including for avoidance of doubt the occurrence of Coronavirus SARS-CoV-2, also known as COVID-19); (iii) acts of war, terrorism, rebellions, riots, civil disorders or revolutions; (iv) strikes and other labour disturbance; (v) breakdown of equipment, machinery or facilities; (vi) interruption, reduction, stoppage, or suspension of utilities and water, gas, electricity, fuel, light, heat, power, telecommunication services or any other utilities or services; (vii) interruption or delay in transportation (e.g. traffic jams); (viii) laws, order, directions or requests by any federal, state, municipal or local governmental or quasi-governmental authority; or (ix) failures on the part of contractors or suppliers of materials (e.g. semiconductors) (“Force Majeure Event”).
11. Compliance with Laws.
a. Buyer acknowledges and understands that U.S. export laws, regulations, and rules apply to these Terms of Sale and Services, including but not limited to the U.S. Export Administration Regulations and Foreign Assets Control Regulations (“Export Laws”). Export Laws restrict or forbid the transfer, sharing, export or re-export of goods sold under these Terms of Sale and Services, technical data related thereto, or certain confidential information (“Restricted Information”) with or to certain designated persons or destinations specified in such Export Laws without the prior authorization of the applicable government. Buyer represents and warrants that it and its owners, directors, officers, employees, agents, and contractors are, and will remain in compliance with, all applicable Export Laws. For any exports, Buyer agrees that it shall comply with all applicable Export Laws and complete all requirements (including obtaining any necessary export or reexport licenses or other government approvals), prior to exporting, reexporting, transferring or releasing any Restricted Information. Buyer shall also maintain the necessary records required by such Export Laws. Buyer shall be responsible for any breach of this Section by its owners, directors, officers, employees, agents or contractors, as well as its successors and permitted assigns.
b. Buyer represents and warrants that neither Buyer nor, to its knowledge, any of its owners, directors, officers, employees, agents or contractors is directly or indirectly owned or controlled by any person currently included on the U.S. Specially Designated Nationals Lists or the U.S. Foreign Sanctions Evaders List (collectively “SDN Lists”) maintained by the U.S. Office of Foreign Assets Control, Department of the Treasury (“OFAC”) or is otherwise subject to economic sanctions or trade embargoes imposed by any other governmental entity. Buyer shall promptly notify Seller if it or any of its owners, directors, officers, employees, agents or contractors becomes directly or indirectly owned or controlled by any person included on the then-current SDN List or otherwise becomes subject to economic sanctions or trade embargoes imposed by any applicable governmental entity. Neither Buyer nor, to its knowledge, any of its owners, directors, officers, employees, agents or contractors (i) is currently the subject of any investigation by OFAC or any other governmental authority, or (ii) is directly or indirectly owned or controlled by any person or entity currently the subject of any sanction’s investigation. Buyer shall promptly notify Seller if it or any of its owners, directors, officers, employees, agents or contractors becomes the subject of any such investigation(s). Neither Buyer nor any of its owners, directors, officers, employees, agents or contractors is located, organized or resident in Cuba, Iran, North Korea, Syria, Sudan or any other country or territory that is, or whose government is, subject to a comprehensive trade embargo imposed by OFAC or any other applicable government entity.
c. Buyer: (i) shall comply with all U.S. antiboycott laws and regulations; and (ii) shall not cause Seller to be in violation of any U.S. antiboycott laws or regulations.
12. Anti-Corruption
Neither the Purchaser nor its directors, officers or employees shall (i) use any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) make or take an act in furtherance of any direct or indirect unlawful payment or benefit to any foreign or domestic government or regulatory official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office from corporate funds; (iii) violate any provision of the Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), and the rules and regulations thereunder; (iv) violate any provision of the UK Bribery Act 2010, or any other applicable anti-bribery or anti-corruption laws; (v) violate any anti-corruption laws and regulations that would be applicable to it in the jurisdictions in which the Purchaser operates; or (v) make, offer, agree, request or take an act in furtherance of any unlawful bribe or other unlawful benefit including, without limitation, any bribe, rebate, payoff, influence payment, kickback or other unlawful payment. The Purchaser shall institute, maintain and enforce, policies and procedures designed to promote and ensure compliance with the FCPA, the UK Bribery Act 2010, and any anti-corruption laws and regulations that would be applicable to it in the jurisdictions in which the Purchaser operates.
13. Human Rights
a. The Purchaser and Azbil agree that there will be no discrimination against an employee because of age, race, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex or sexual orientation, and in particular, that there shall be no such discrimination in terms of hiring, promotion, wages, discipline, or dismissal.
b. The Purchaser and Azbil will respect the human rights of third parties, such as its own employees and other persons relevant to transactions.
14. Employment
The Purchaser and Azbil will not employ anyone under the legal working age as defined by applicable local laws. The Purchaser and Azbil will comply with all applicable laws addressing the working requirements and conditions for employment, including but not limited to, minor workers and foreign workers
15. Notices. Any notice or report required or desired to be given concerning these Terms of Sale shall be in writing and in the English language, and may be given by personal delivery, by certified mail, return receipt requested, by reputable overnight carrier service or by confirmed facsimile. Any notice or report addressed to Seller or Buyer at their respective addresses set forth above, or at such address or addresses as any such party shall have furnished to the other party in writing, shall be deemed to have been given: (a) when personally delivered or if properly addressed and deposited in the mail (certified, return receipt requested), on the date shown on the return receipt for acceptance or rejection; (b) if properly addressed and deposited with a reputable overnight carrier, on three (3) business days following the date of deposit; or (c) if properly addressed and sent by facsimile (confirming transmission of all pages), on the date shown on the confirmation, provided that a copy of such notice is also sent on the same date by regular postal mail. For this purpose, a “business day” shall be a day on which such reputable overnight carrier has a regular scheduled delivery (excluding Saturdays).
16. Governing Law and Resolution of Disputes.
a. The interpretation of these Terms of Sale shall be governed solely by the laws of the State of Arizona, U.S.A., without regard to any conflict of law’s provisions therein. The provisions of the International Convention on the Sale of Goods shall not apply. The official and legally binding text of these Terms of Sale shall be in the English language and any interpretation or construction of these Terms of Sale shall be based thereon.
b. If a dispute arises out of or relates to these Terms of Sale, or the breach thereof, and if said dispute cannot be settled through direct discussions, the parties agree to first endeavor to settle the dispute in an amicable manner by mediation administered by the American Arbitration Association under its then prevailing Commercial Mediation Rules, before resorting to arbitration. Thereafter, any unresolved controversy or claim arising out of or relating to these Terms of Sale, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its then prevailing Commercial Arbitration Rules. The site of this arbitration shall be Phoenix, Arizona. The arbitrator(s) shall award to the prevailing party, if any, as determined by the arbitrator(s), all of its Costs and Fees. “Costs and Fees” means all reasonable expenses of the arbitration, including arbitrators’ fees, administrative fees, travel expense, out-of-pocket expenses such as copying and telephone, court cost, witness fees and attorneys’ fees.