PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT ORDER YOUR PRODUCT.
1. These Terms of Sale (“Terms of Sale” or “Agreement” to be used interchangeably) apply to Your purchase of products (“Product(s)”) sold in the United States by KOOLFANS, LLC., a Florida
Limited Liability Company d/b/a VFANS.NET, including its affiliates, subsidiaries or successors in interest (“Koolfans”). By placing Your order for Product, You or any of Your affiliates (“Customer” also referred to herein as “You” or “Your”) accept and are bound by the terms of these terms of sale (referred to as the “Terms of Sale” or the “Agreement”). If You have placed an order but do not wish to be subject to these Terms of Sale, You must promptly cancel Your order before it enters production. Once an order enters production it becomes non-cancellable. For purposes of this Agreement, the term Product includes products manufactured by Koolfans as well as by third parties (“Third Party Product(s)”).
2. Modification. This Agreement may not be modified, amended, altered, or supplemented unless otherwise agreed to in a written agreement signed by both You and Koolfans.
3. Payment Terms; Orders; Quotes; Interest. Your order is subject to acceptance or cancellation by Koolfans, in Koolfans’s sole discretion. Terms of payment are within Koolfans’ sole discretion, and unless otherwise agreed to by Koolfans in writing, payment must be received by Koolfans prior to Koolfans’s acceptance of an order. Each accepted order will be interpreted as a single order, independent of any other orders. Payment for Products must be made by credit card, wire transfer, electronic funds transfer, or some other prearranged payment method. Payment to Koolfans with respect to Products shall be made to the account indicated by Koolfans (as may be amended from time to time). Orders for Third-Party Products are subject to availability and are cancellable by Koolfans for any reason, at any time. Orders for Third-Party Products are non-cancellable by Customer. Timely payment of the price and all charges is of the essence. It is the responsibility of Customer to ensure payments are authorized and approved on time to ensure receipt of payment no later than the due date; in no case shall Koolfans be responsible for ensuring such authorization or approval. Koolfans reserves the right to charge an interest charge of 1.5% per month applied against undisputed overdue amounts. Interest will be recalculated every thirty (30) days; thereafter, based on Your current outstanding balance. Interest unpaid for more than one (1) year will be compounded annually. In addition, Koolfans without waiving any other rights or remedies to which it may be entitled shall have the right to refuse acceptance of additional new orders and delivery of pending order for Products from Customer until Koolfans’s receipt of all overdue amounts. Koolfans shall have no liability to Customer for any such refusal of additional orders or withholding of delivery. Koolfans further reserves the right to seek collection of all overdue amounts (including by referral to third-party collectors), plus all reasonable legal fees (including reasonable attorneys’ fees) and costs associated with such collection.
4. Invoices. Invoices are due and payable upon receipt unless otherwise noted on Your invoice. Koolfans may invoice parts of an order separately or may invoice purchases of Products
in one invoice to Customer. Koolfans is not responsible for pricing, typographical, or other errors, in any offer, and reserves the right to cancel orders arising from such errors. Customer
agrees that all invoices shall be deemed accurate unless Customer advises Koolfans in writing of a bona fide, material error within fourteen (14) days of the date of such invoice. In the event that Customer advises Koolfans in writing of a material error, (i) payment of any amounts corrected or modified by Koolfans in writing shall be due within fourteen (14) days of such correction, and (ii) all other amounts shall be paid by Customer by the invoice due date. In the event, Customer withholds payment of any invoiced amounts upon an assertion by Customer that such amounts are erroneous, and Koolfans subsequently concludes that such invoiced amounts are accurate, Customer shall pay interest on such amounts as described above from the due date for such amounts until Koolfans’s receipt of those amounts. In no case shall Customer be entitled to offset, defer, or deduct any invoiced amounts that Koolfans determines are not erroneous following the notification process set forth above.
5. Shipping Charges; Title; Risk of Loss. Unless otherwise specified in writing by Koolfans, Customer shall pay all freight, insurance, and taxes (including but not limited to import or export duties, sales, use, value-add, and excise taxes). Shipping and handling charges are not included in Product prices unless expressly indicated on Your invoice. If not included on Your invoice, shipping charges will be billed separately. Title to Products passes from Koolfans to Customer upon shipment to Customer. The risk of loss passes from Koolfans to Customer upon
Koolfans’s delivery of the Product to the carrier for shipment. Loss or damage that occurs during the shipping is Your responsibility. Immediately upon receipt of Your shipment and prior to installation, Customer must inspect the shipment and if Customer believes any part of Your order is missing, wrong, damaged or non-conforming, Customer must notify Koolfans within two (2) days of receipt and prior to installation of any Product. Customer and Koolfans agree that two (2) days is a reasonable time period for Customer to inspect the shipment and any Products contained therein. Failure of Customer to notify Koolfans within the time period indicated above that all or any part of Customer’s order is wrong, missing, or damaged as provided herein shall be deemed an acceptance by Customer of the shipment and the Products contained therein as reflected on the applicable purchase order or invoice. Shipping and delivery dates, whether verbal or specified in Your invoice, are estimates only and any discrepancy between estimated and actual shipping and delivery shall not form a basis for Customer canceling or otherwise terminating this Agreement.
6. ALL SALES ARE FINAL. There are exceptions to this rule on a case by case basis. Koolfans reserves the right to limit or decline returns or exchanges. The Store Manager has the authority to make a final decision for all returns. In general, products may be returned or exchanged only within seven (7) days of purchase. To consider a return or exchange Koolfans will only accept returns or exchanges if the product is unused in perfect mechanical and physical condition. The returned or exchanged product must include all its original assembly parts and accessories. The returned or exchanged product must be in its original packaging and in perfect physical condition. The returned or exchanged product must include its original instruction manual. No Refund will be issued after the first seven (7) days of purchase. No Exchanges will be accepted after the first seven (7) days of purchase. Koolfans will accept exchanges after the first seven (7) days of purchase for products with manufacturing defects. To qualify for exchanges after the sevens day of purchase, the product must carry a valid Manufacturer’s Warranty. If accepted, exchanges will be issued for a product of equal or lesser value. A Product may not be returned or exchanged because of damage which results from improper installation, operation, or Customer’s failure to read all labels, warnings, manuals and assembly instructions. Improper installation, care, or other failures on behalf of Customer to follow all labels, warnings, manuals and assembly instructions will void any Product warranty. All returns are subject to a 30% restocking fee and Credit Card Reverse Charge fees.
Consumers assume their responsibility for their purchase. It is Customer’s Duty to Read Assembly Instructions. Subject to Customer’s right to inspect the Product prior to installation as set forth in paragraph 5 above. All sales are final and an order may not be canceled once it is shipped or entered into production. Additionally, it is Customer’s responsibility to read all labels, warnings, manuals and assembly instructions prior to installation of any Product. Unless specified to the contrary on the Product itself, our Products are not weatherproof and should not be exposed to rain, water, or abrasive gases.
7. Installation of Surge Protector and Single or Three-Phase Thermally Protected Magnetic Switch or motor starter; Installation of Guards.
Sudden voltage surge can damage any electrical equipment. Though the Products we provide are heavy-duty industrial Products, they can be easily damaged due to voltage and amperage variation. Therefore, Customer must, at Customer’s sole expense, install a voltage surge protector as well as a single or three phase thermally protected magnetic switch or motor starter. Failure of Customer to do so will void any Product warranty. Guards must be installed on all Products which are operated within reach of people or if the lowest moving part is below eight (8) feet of working level, or when otherwise considered advisable. Koolfans is not responsible for any damage to Products resulting from a failure of Customer to comply with the requirements set forth in this paragraph.
8. Taxes. Taxes, including but not limited to any applicable sales or use tax, are not included in Product prices unless expressly indicated on Your invoice. If not included on Your invoice, taxes will be billed separately. Unless You provide Koolfans with a valid and accurate tax-exemption certificate applicable to Your Product purchase and ship-to location, You are responsible for sales tax and any other governmental fees associated with Your order. Customer may qualify for tax exemptions from time to time in which case Koolfans requests that Customer provide it with a valid certificate of exemption or other appropriate documentary proof of exemption at the time of Customer’s order. In the event that Customer is required by law to make a withholding or deduction in respect of the price payable to Koolfans, Customer will make the relevant payments to Koolfans net of the required withholding or deduction. Customer will supply to Koolfans evidence (e.g. official withholding tax receipts), to the reasonable satisfaction of Koolfans, that Customer has accounted to the relevant authority for the sum withheld or deducted. If such evidence is not provided to Koolfans within sixty (60) days of delivery of the Product by Koolfans to Customer, Koolfans will impose a penalty payment on Customer, and
Customer will be liable for such penalty, in the amount of the withholding imposed on that particular transaction.
9. Prices. The prices charged for Products purchased under this Agreement shall be the amounts set forth on Koolfans’s website or other quotation, or as provided by the applicable invoice. Quoted prices will remain in effect only until the expiration date of the quote or Koolfans’s acceptance of Your order, as evidenced by a written order confirmation and/or an invoice from Koolfans, and such prices are subject to shortages in materials or resources, increases in the cost of manufacturing, or other factors.
10. Changed or Discontinued Products. Koolfans may revise or discontinue a Product at any time without prior notice to Customer. A change in a Product may occur after Customer places an order but before Koolfans ships the Product to Customer. As a result, unless the order is canceled by Koolfans, Products Customer receives might display minor differences from the Products Customer orders. However, Products will substantially meet or exceed all material specifications of such order.
11. Limited Warranty for Koolfans Branded Products. KOOLFANS BRANDED PRODUCTS COME WITH A TWELVE (12) MONTH LIMITED WARRANTY FOR MANUFACTURING DEFECTS ONLY WHEN OPERATED UNDER NORMAL CONDITIONS AND IN ACCORDANCE WITH NAMEPLATE CHARACTERISTIC LIMITS. EXCEPT AS EXPRESSLY STATED IN THE PRECEDING SENTENCE, KOOLFANS (INCLUDING ITS AFFILIATES, CONTRACTORS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND OFFICERS), ON BEHALF OF ITSELF AND ITS SUPPLIERS (COLLECTIVELY THE “KOOLFANS PARTIES”) MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO ANY OF THE PRODUCTS INCLUDING BUT NOT LIMITED TO ANY WARRANTY (1) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, OR SUITABILITY; (2) RELATING TO THIRD-PARTY PRODUCTS; AND (3) REGARDING THE RESULTS TO BE OBTAINED FROM THE PRODUCTS OR THE RESULTS OF ANY RECOMMENDATION BY KOOLFANS. WARRANTIES DO NOT COVER DAMAGE DUE TO EXTERNAL CAUSES, SUCH AS INSTALLATION, ACCIDENT, ABUSE, MISUSE, PROBLEMS WITH ELECTRICAL POWER, SERVICE NOT PERFORMED OR AUTHORIZED BY KOOLFANS (SUCH AS INSTALLATION OR DE-INSTALLATION) USAGE NOT IN ACCORDANCE WITH THE PRODUCT INSTRUCTIONS, NORMAL WEAR AND TEAR, OR USE OF PARTS AND COMPONENTS NOT SUPPLIED OR INTENDED FOR USE WITH THE PRODUCTS. ANY SUCH EXTERNAL CAUSES WILL VOID THE REMAINING LIMITED WARRANTY, IF ANY.
KOOLFANS SHALL NOT BE LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO ANY PRODUCT, OR THE OPERATION THEREOF, FURNISHED BY ANY, AGENT, EMPLOYEE, OR OTHER PERSON EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT.
12. No Warranty for Third Party Products. KOOLFANS DOES NOT PROVIDE ANY WARRANTY WHATSOEVER WITH RESPECT TO THIRD-PARTY PRODUCTS. ANY WARRANTY ON A THIRD-PARTY PRODUCT IS PROVIDED BY THE ORIGINAL MANUFACTURER. ALL THIRD-PARTY PRODUCTS ARE PROVIDED BY KOOLFANS “AS-IS”.
13. Limitation of Liability. KOOLFANS WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY PRODUCT PROVIDED HEREUNDER. KOOLFANS SHALL NOT HAVE LIABILITY FOR THE FOLLOWING: (1) LOSS OF REVENUE, INCOME, PROFIT, OR SAVINGS; (2) LOSS OF USE OR RECOVERY OF A PRODUCT; (3) LOSS OF BUSINESS OPPORTUNITY; (4) BUSINESS INTERRUPTION OR DOWNTIME; OR (5)DELIVERABLES, KOOLFANS PRODUCTS, OR THIRD-PARTY PRODUCTS NOT BEING AVAILABLE FOR USE. NOTWITHSTANDING ANYTHING HEREIN CONTAINED TO THE CONTRARY, IN NO EVENT SHALL KOOLFANS TOTAL LIABILITY TO CUSTOMER FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING ANY PRODUCTS PROVIDED HEREUNDER) IN ANY 12-MONTH PERIOD EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO KOOLFANS DURING THE PRIOR 12-MONTHS OF THIS AGREEMENT FOR THE SPECIFIC PRODUCT GIVING RISE TO SUCH CLAIM(S).
14. Limited Warranty Claim. In the event that Customer claims a Product is defective, and Customer believes such defect to be a defect covered by the limited warranty as set forth in Section 11 of this Agreement, Customer must first notify Koolfans of such claimed defect in the manner herein described for service of notice as required hereunder. Koolfans will then provide Customer with a return authorization number. Within three (3) business days after receiving said return authorization number, Customer, at Customer’s expense, must ship the Product to Koolfans for inspection. Failure of Customer to ship the Product to Koolfans within such three (3) day period shall void all warranties of Customer under this Agreement. The customer carries the risk of loss for any such shipment back to Koolfans. In the event that the Product, or any part thereof, is manufactured by a Third Party, Customer will have the option of awaiting a response from the Third Party manufacturer on their evaluation of the claim, or, to have Koolfans ship them a replacement Product. In the event that Customer chooses to have Koolfans ship Customer a replacement Product, Customer must also include a credit card authorization, the amount of which will be equal to the cost of the replacement Product and return shipping the replacement Product to Customer. In the event that it is determined by Koolfans or the Third Party manufacturer that the alleged defect is not covered by the limited warranty as set forth in Section 11 above, then Customer’s credit card will be charged the full value of the replacement Product and return shipment. If the alleged defect is determined by Koolfans or the Third Party manufacturer to fall within the limited warranty as set forth in Section 11, then Customer will not be charged for the replacement Product or return shipment.
15. Indemnification. Each party shall defend and indemnify the other party against (i) any third-party claim or action for personal bodily injury, including death, to the extent directly caused by the indemnifying party’s gross negligence or willful misconduct in the course of performing its obligations under this Agreement; and (ii) any damage, cost, expense or liability, including but not limited to attorneys fees and costs, at trial and appellate levels, arising from any material breach of any term covenant or provision of this Agreement, subject to applicable notice, cure and grace periods, if any, as herein set forth. Further, Customer hereby expressly indemnifies and holds harmless Koolfans from and against any costs, expenses, damages or liabilities, including but not limited to attorneys fees at trial and appellate levels, arising from an alleged claim by Customer that Customer has incurred any damages, costs, liabilities, or expenses which are due to external causes, including but not limited to faulty installation or deinstallation of any Product by or on behalf of Customer, accident, abuse, misuse, problems with electrical power, service, or failure to follow safety instructions on any Product, usage not in accordance with the product instructions, normal wear and tear, or use of parts and components not supplied or intended for use with the Products.
16. Independent Contractor Relationship; Assignment; Subcontracting. The parties are independent contractors. No provision of this Agreement will or shall be deemed to create an association, trust, partnership, joint venture, or other entity or similar legal relationship between Koolfans and Customer, or impose a trust, partnership, or fiduciary duty, obligation, or liability with respect to such entities. Neither party will have any rights, power, or authority to act or create an obligation, express or implied, on behalf of the other party except as provided in this Agreement. Koolfans has the right to assign, subcontract, or delegate in whole or in part this Agreement, or any rights, duties, obligations, or liabilities under this Agreement, by operation of law or otherwise. Upon the occurrence of an assignment of this Agreement to an independent Third Party in connection with the sale by Koolfans or any affiliated entity of the assets of the business, Customer shall look solely to assignees for purpose of enforcing any rights of Customer pursuant to and in accordance with this Agreement, and Koolfans and its affiliates shall have no further liability to Customer arising from his Agreement. Customer may not assign this Agreement without the prior written consent of Koolfans, which consent may be withheld at the sole discretion of Koolfans.
17. Force Majeure. Neither party shall be liable to the other party for failing to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control, such as fire, flood, war, embargo, strike, riot, or the intervention of any governmental authority (a “Force Majeure”). In each such event, however, the delayed party must promptly provide the other party with written notice of the Force Majeure. The delayed party’s time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure event lasts longer than thirty (30) days, the other party may immediately terminate, in whole or in part, this agreement by giving written notice to the delayed party.
18. Entire Agreement; Severability. This Agreement is the entire agreement between Customer and Koolfans with respect to its subject matter and supersedes all prior oral and written understandings, communications, or agreements between Customer and Koolfans. The terms of your purchase order, including any amendments or modifications thereto, are subject to these Terms of Sale. Any preprinted terms on Your purchase order that conflict with this Agreement shall be given no force and effect and no terms of a purchase order that conflict with this
The agreement shall be binding on Koolfans. No amendment or modification of this Agreement, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both Parties. If any provision of this Agreement should be found to be void or unenforceable, such provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of this Agreement will remain in full force and effect and will not be terminated.
19. Governing Law. This Agreement and ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT, OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND KOOLFANS, LLCluding their affiliates, contractors, agents, and each of their respective employees, directors, shareholders, members, manager, and officers arising from or relating to this Agreement, its interpretation, or the breach, termination, or validity thereof, the relationships which result from this Agreement (including to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), Koolfans’s advertising or any related purchase (a “Dispute”) SHALL BE GOVERNED BY THE LAWS OF THE STATE OF FLORIDA, WITHOUT REGARD TO CONFLICTS OF LAW.
20. Dispute Resolution and Binding Arbitration. CUSTOMER AND KOOLFANS ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A DISPUTE. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. ANY DISPUTE SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), except that you may assert claims in small claims court if your claims qualify. Arbitration proceedings shall be governed by this provision and the then current rules and procedures for the arbitration of consumer-related disputes of the AAA or any successor thereof. In the event of any inconsistency, the terms of this Dispute Resolution and Binding Arbitration provision shall control. All claims shall be determined by one (1) arbitrator. Any dispute brought to arbitration hereunder shall have the final hearing heard in Broward County, Florida, unless otherwise agreed by the parties in writing. All arbitration hearings shall commence within ninety (90) days of the demand for arbitration and close within ninety (90) days of commencement and the award of the arbitrator shall be issued within thirty (30) days of the close of the hearing. However, the arbitrator, upon a showing of good cause, may extend the commencement of the hearing for up to an additional sixty (60) days. The arbitrator shall provide a concise written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and have the judgment entered and enforced.
Customer agrees to an arbitration on an individual basis, in any dispute. NEITHER CUSTOMER NOR KOOLFANS SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS OR ARBITRATE ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER, OR IN A PRIVATE ATTORNEY GENERAL CAPACITY (“Class Action Waiver”). Regardless of anything else in this Dispute Resolution and Binding Arbitration provision, the validity and effect of the Class Action Waiver shall be determined only by a court and not by an arbitrator. The Parties to this Agreement acknowledge that the Class Action Waiver is material and essential to the arbitration of Disputes between the Parties and is nonseverable from the agreement to arbitrate claims. If the Class Action Waiver is limited, voided, or found unenforceable, then the Parties’ agreement to arbitrate shall be null and void with respect to such proceeding, subject to the right to appeal the limitation of invalidation of the Class Action Waiver. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced, but in no case shall there be a class action arbitration. The arbitrator shall be empowered to grant whatever relief would be available in court under law or equity. This transaction shall be governed by the Florida Arbitration Code; Florida Statutes Chapter 682, et. seq. as same may be amended from time to time (the “Act”). Any award of the arbitrator(s) selected shall be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. The parties to the arbitration shall be entitled only to limited discovery, consisting of the exchange between such parties of only the following matters: (i) witness lists; (ii) expert witness reports; (iii) expert witness designations; (iv) exhibits; (v) reports of testing or inspections of the Product(s) subject to the dispute, and (vi) trial briefs. The arbitrator shall oversee discovery and shall enforce all discovery orders in the same manner as any trial court judge and in accordance with section 682.08 of the Act. The arbitrator(s) will give effect to statutes of limitation in determining any Dispute and may dismiss the arbitration on the basis that the Dispute is barred. For purposes of the application of any statutes of limitation, the service on AAA under applicable AAA rules of a notice of claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Dispute is arbitrable shall be determined by the arbitrator. The arbitrator shall have the power to award legal fees pursuant to the terms of this Agreement. The filing of a court action is not intended to constitute a waiver of the right of any party, including the suing party, thereafter to require submittal of the Dispute to Arbitration. By agreeing to binding arbitration, the Parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of any Dispute. Furthermore, without intending in any way to limit this agreement to arbitrate, to the extent any Dispute is not arbitrated, the Parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of such Dispute. This waiver of jury trial shall remain in effect even if the Class Action Waiver is limited, voided, or found unenforceable. WHETHER THE CLAIM IS DECIDED BY AN ARBITRATION OR BY A TRIAL JUDGE, THE PARTIES AGREE AND UNDERSTAND THAT THE EFFECT OF THIS AGREEMENT IS THAT THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY TO THE EXTENT PERMITTED BY LAW.
21. Attorney’s Fees and Costs. If a party breaches a term or provision of this Agreement and the other party retains the services of an attorney as a result of such breach, whether suit is
brought or not, and notwithstanding that the breach may thereafter be cured or waived, the breaching party shall pay to the non-breaching party reasonable attorneys’ fees, costs and
expenses incurred as a result of the breach. In the event of any dispute between the parties which results in legal proceedings, then the non-prevailing party shall pay the prevailing party all
reasonable attorneys’ fees and costs incurred by the prevailing party, both at trial and appellate levels, and including but not limited to any proceedings to recover attorneys’ fees and costs
pursuant to this provision.
22. Notices. Any notice, demand, request or other communication which either Party hereto may be required or may desire to give under this Agreement shall be in writing and shall
be deemed to have been properly given (a) if hand delivered (effective upon delivery), (b) if mailed (effective three (3) days after mailing) by United States registered or certified mail,
postage prepaid, return receipt requested, (c) if sent by a nationally recognized overnight delivery service (effective one (1) day after delivery to such courier) or (d) if sent by e-mail (effective upon confirmation of transmission). Notice to Koolfans shall be to the address below or to such other address (including e-mail) as specified in writing. Notice to Customer shall be to the address in Customer’s purchase order, or as reflected on Customer’s invoice or such other address (including email) as specified in writing.
20871 Johnson Street
Pembroke Pines, Florida 33029
23. Majority. Customer represents and acknowledges to Koolfans that Customer is eighteen (18) years of age or older.
24. Authority/Capacity. (a) Seller hereby represents to Purchaser that: Koolfans has full capacity, right, power and authority to execute, deliver and perform this Agreement and all documents to be executed by Koolfans under this Agreement, and all required action has been duly taken. This Agreement and all documents to be executed pursuant hereto by Koolfans are and will be binding on and enforceable against Koolfans in accordance with their respective terms. (b) Customer hereby represents and warrants to Koolfans that Customer has full capacity, right, power and authority to execute and deliver the purchase order and to perform this Agreement and all documents to be executed by Customer under this Agreement, and all required action has been duly taken. This Agreement and all documents to be executed pursuant hereto by Customer are and will be binding on and enforceable against Customer in accordance with their respective terms. The undersigned signatory on behalf of Customer (if other than an individual Customer) is duly authorized to execute the purchase order and these Terms of Sale on behalf of Customer and all requisite approvals, consents, ratifications, and authorizations, if any, which were required by the undersigned signatory to execute the purchase order and these Terms of Sale on behalf of Customer, have been obtained.
25. Partial Invalidity. If any term or provision of this Agreement will be deemed to be invalid or unenforceable to any extent, the remainder of this Agreement will not be affected thereby, and each remaining term and provision of this Agreement will be valid and be enforced to the fullest extent permitted by law.
26. Waiver. No waiver of any breach of any covenant or provision contained herein will be deemed a waiver of any preceding or succeeding breach thereof, or of any other covenant or provision contained herein. No extension of time for performance of any obligation or act will be deemed an extension of the time for performance of any other obligation or act except those of the waiving party, which will be extended by a period of time equal to the period of the delay. If the time for performance of any obligations hereunder falls on a Saturday, Sunday or a day which is a Florida state or federal holiday, the time for performance of such obligations shall be extended to the next day which is not a Saturday, Sunday or Florida state or federal holiday.
27. Successors and Assigns. This Agreement is binding upon and inures to the benefit of the permitted successors, assigns, personal representatives, and heirs of the Parties hereto.
28. Time is of the Essence. The Parties hereby acknowledge and agree that time is strictly of the essence with respect to each and every term, condition, obligation and provision hereof.
29. Construction. This Agreement has been prepared by Koolfans and its professional advisors and Customer has reviewed these Terms of Sale and has had an opportunity to review same with legal counsel or another advisor of its choice, and in connection with any interpretation of this Agreement, Customer and Koolfans each acknowledge and agree that these Terms of Sale accurately expresses their agreement and that it should not be interpreted in favor of or against either Koolfans or Customer. The Parties further agree that this Agreement will be construed to effectuate the normal and reasonable expectations of a sophisticated seller and buyer.
30. WAIVER OF JURY TRIAL. WITHOUT INTENDING IN ANY WAY TO LIMIT THE PARTIES’ AGREEMENT TO ARBITRATE DISPUTES AS SET FORTH IN THIS AGREEMENT, TO THE EXTENT ANY CLAIM IS NOT SUBMITTED TO ARBITRATION OR IS DEEMED BY THE ARBITRATOR OR BY ANY COURT WITH JURISDICTION TO BE NOT ARBITRABLE OR NOT REQUIRED TO BE ARBITRATED, THE PARTIES WAIVE JURY TRIAL BY JURY IN RESPECT OF ANY SUCH DISPUTE AND ANY ACTION ON SUCH DISPUTE. THIS WAIVER IS KNOWINGLY, WILLINGLY, AND VOLUNTARILY MADE BY THE PARTIES, AND THE PARTIES HEREBY REPRESENT TO EACH OTHER THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY PERSON OR ENTITY TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES’ ENTERING INTO THIS AGREEMENT. THE PARTIES ARE EACH HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION OF THE AGREEMENT IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER OF JURY TRIAL. THE PARTIES FURTHER REPRESENT AND WARRANT TO EACH OTHER THAT THEY HAVE EACH HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT ORDER YOUR PRODUCT.
VFANS.NET not responsible for installation and product removal cost. Customer must test the product before installing it.