Nelson and Pade, Inc. – Terms and Conditions of Sale
General Terms for Online Sales of Products
Notice about shipping charges:
The shopping cart automatically calculates USPS and UPS shipping rates. However, there can be variation in the shipping cost due to the size, dimensions and packaging. If the amount of shipping you paid with the order is not sufficient, we will promptly notify you and request any additional shipping costs. If there are additional shipping costs and you do not wish to pay it, you can cancel the order at that time. We cannot guarantee the shipping time displayed.
- ACCEPTANCE OF ORDER; TERMINATION – Acceptance of any online order is subject to credit card approval, PayPal payment or clearance of check.
- PRICES AND SHIPMENTS – Unless otherwise quoted, prices shall be those in effect at time of shipment, which shall be made F.O.B. shipping point, prepaid and bill.
- RETURN OF GOODS – Goods (with the exclusion of books, videos and curriculums) can be returned within 7 days of receipt. Return transactions will be charged a 20% restocking fee and “Buyer” pays the return shipping charges. If goods are defective or damaged, you must notify Nelson and Pade, Inc. within 3 days of receipt to be except from the restocking fee. All returns must be pre-approved.
- TAXES – Prices shown do not include sales or other taxes imposed on the sale of goods. Taxes now or hereafter imposed upon sales or shipments will be added to the purchase price. Buyer agrees to reimburse Nelson and Pade, Inc. for any such tax or provide Nelson and Pade, Inc. with acceptable tax exemption certificate.
- DELAY IN DELIVERY – Nelson and Pade, Inc. is not to be accountable for delays in delivery occasioned by acts of God, failure of its suppliers to ship or deliver on time, or other circumstances beyond Nelson and Pade, Inc.’s reasonable control. Factory shipment or delivery dates are the best estimates of our suppliers, and in no case shall Nelson and Pade, Inc. be liable for any consequential or special damages arising from any delay in shipment or delivery.
- WARRANTIES – Nelson and Pade, Inc. warrants that all goods sold are free of any security interest and will make available to Buyer all transferable warranties (including without limitation warranties with respect to intellectual property infringement) made to Nelson and Pade, Inc. by the manufacturer of the goods. Nelson and Pade, Inc. MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE. UNLESS OTHERWISE AGREED IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF Nelson and Pade, Inc.
Successful operation and proper use of this equipment is solely the responsibility of the purchaser. Published production levels of fish and plants are based on known research. Actual results may vary. Nelson and Pade, Inc. does not guarantee success, production levels or trouble-free operation. Nelson and Pade, Inc. is not a general, electrical or plumbing contractor and does not assume the role, responsibility or liability of a contractor. Nelson and Pade, Inc. is not responsible for manufacturer’s quality of work or instructions on individual system components, pumps or parts of the aquaponic systems, related equipment or greenhouse.
- LIMITATION OF LIABILITY – Buyer’s remedies under this agreement are subject to any limitations contained in manufacturer’s terms and conditions to Nelson and Pade, Inc. Furthermore, Nelson and Pade, Inc.’s liability shall be limited to either repair or replacement of the goods or refund of the purchase price, all at Nelson and Pade, Inc.’s option, and IN NO CASE SHALL Nelson and Pade, Inc. BE LIABLE FOR INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES. In addition, claims for shortages, other than loss in transit, must be made in writing not more than five (5) days after receipt of shipment.
- WAIVER – The failure of Nelson and Pade, Inc. to insist upon the performance of any of the terms or conditions of this agreement or to exercise any right hereunder shall not be deemed to be a waiver of such terms, conditions, or rights in the future, nor shall it be deemed to be a waiver of any other term, condition, or right under this agreement.
- MODIFICATION OF TERMS AND CONDITIONS – These terms and conditions supersede all other communications, negotiations, and prior oral or written statements regarding the subject matter of these terms and conditions. No change, modification, rescission, discharge, abandonment, or waiver of these terms and conditions shall be binding upon Nelson and Pade, Inc. unless made in writing and signed on its behalf by a duly authorized representative of Nelson and Pade, Inc. No conditions, usage of trade, course of dealing or performance, understanding or agreement, purporting to modify, vary, explain, or supplement these terms and conditions shall be binding unless hereafter made in writing and signed by the party to be bound. Any proposed modifications or additional terms are specifically rejected and deemed a material alteration hereof. If this document shall be deemed an acceptance of a prior offer by Buyer, such acceptance is expressly conditional upon Buyer’s assent to any additional or different terms set forth herein.
- ASSIGNMENT – Buyer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of Nelson and Pade, Inc., and any such assignment, without such consent, shall be void.
- GENERAL PROVISIONS – All typographical or clerical errors made by Nelson and Pade, Inc in any quotation, acknowledgment or publication are subject to correction. This agreement shall be governed by the laws of the State of Wisconsin applicable to contracts to be formed and fully performed within the State of Wisconsin, without giving effect to the choice or conflicts of law provisions thereof.Buyer hereby irrevocably consents to the jurisdiction of such court or courts and agrees to appear in any such action upon written notice thereof.
- PAYMENT TERMS – Payment terms be as stated on Nelson and Pade Inc.’s invoice or as otherwise mutually agreed. As a condition of the sales agreement, a monthly service charge of the lesser of 1-1/2% or the maximum permitted by law may be added to all accounts not paid by net due date. Visa, MasterCard, American Express, and Discover credit cards are accepted at point of purchase only.
- EXPORTING – Buyer acknowledges that this order and the performance thereof are subject to compliance with any and all applicable United States laws, regulations, or orders. Buyer agrees to comply with all such laws, regulations, and orders, including, if applicable, all requirements of the International Traffic in Arms Regulations and/or the Export Administration Act, as may be amended. Buyer further agrees that if the export laws are applicable, it will not disclose or re-export any technical data received under this order to any countries for which the United States government requires an export license or other supporting documentation at the time of export or transfer, unless Buyer has obtained prior written authorization from the United States Office of Export Control or other authority responsible for such matters.
~~DISCLAIMER AND INDEMNIFICATION
Except for any explicit written warranty provided to Purchaser herein or in any other transaction document associated with the sale of goods provided for herein, Nelson & Pade hereby disclaims any and all warranties, express or implied, including, without limitation, all implied warranties of merchantability and/or fitness for a particular purpose. Nelson & Pade shall not be liable for any incidental, consequential, or punitive damages. Purchaser shall be solely liable for compliance with all local ordinances, laws, rules, regulations and all other requirements related to the products purchased hereunder. Purchaser hereby agrees to indemnify, defend and hold Nelson & Pade harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, including all actual attorneys’ fees, or disbursements of any kind or nature, whatsoever which may be imposed or incurred by or asserted against Nelson & Pade, whether criminal or civil in nature, arising from (a) Distributor’s breach of any term, condition, or representation set forth herein; (b) any claim for injuries or damage from the products purchased hereunder, the sale, distribution, use or installation of the products purchased hereunder; and (c) any violation of local ordinances, laws, regulations and rules relating to the sale, purchase, installation or use of the products purchased hereunder.
Terms of Registration for the Aquaponics Master Class:
Nelson and Pade, Inc.® reserves the right to refuse registrations at its discretion.
Cancellation Policy: Once registered, if something comes up and you can’t attend the Master Class that you registered for, please let us know so we can accommodate you in another upcoming class. There will be no charge for transferring your registration as long as you let us know 7 days or more before the class. If you cancel with less than 7 days until the Master Class and do not reschedule, there will be a 50% refund. All other circumstances will be determined on a case-by-case basis.
Photo Policy: As an attendee of the Aquaponics Master Class®, I agree to the following: I hereby give permission to Nelson and Pade, Inc. to use my name, photographic likeness and written comments about the workshop in all forms and media for advertising, trade, and any other lawful purposes. I also hereby assign full copyright of these photographs to Nelson and Pade, Inc. together with the right of reproduction either wholly or in part. I agree that I will not make video or audio recordings of, or during, the Aquaponics Master Class®.
Other Terms: My purpose for attending Nelson and Pade, Inc.’s Aquaponics Master Class® is to learn about aquaponic food production, aquaponic techniques for food production and the daily operation of aquaponic systems for growing fresh fish and vegetables. I acknowledge that all course materials are copyrighted by Nelson and Pade, Inc®. These materials are provided for my personal use and I will not reproduce or distribute without written permission from Nelson and Pade, Inc. ® I acknowledge that Nelson and Pade, Inc. ® holds patents on Clear Flow Aquaponic Systems® with ZDEP®. With respect to the patents and related proprietary information, I will not copy, build, produce or sell these or similar systems unless licensed by Nelson and Pade, Inc.®
If you have needs that require special assistance, please notify us at least three weeks in advance of the program date.
Terms for Purchase of Clear Flow Aquaponic Systems®
Nelson and Pade, Inc. Terms of Sale version:2.12.18
This Agreement contains all of the terms and conditions of the agreement between Seller and Purchaser of the Nelson and Pade Aquaponic System, equipment, supplies, greenhouse and any related products and/or services as described on the attached accepted Order Form (collectively, the “Products”) to be sold to the Purchaser, to the exclusion of any other prior or contemporaneous statements and agreements, oral or written.
1. AGREEMENT TO PURCHASE
Seller agrees to sell and Purchaser agrees to buy Products based on the terms of this Agreement.
2. PRICE AND PAYMENT
a. Pricing: The total price of the Products which the Purchaser undertakes to pay Seller shall be as set forth on the Order Form (the “Purchase Price”). Pricing of Products is on a per-unit basis. Prices are valid for thirty days (30) from the date of issue of the order by Seller.
b. Order Initiated: Orders are initiated upon the completion, execution, and delivery of the Order Form, including signatures, initials and dates, and one hundred percent (100%) payment of the Purchase Price is received by Seller. Or, for commercial systems only, when an alternative payment plan is agreed upon in which a 50% deposit is paid at time of order and the remaining 50%, plus a 10% service charge on the entire purchase amount, is paid no less than (30) days prior to shipment or 60 days from date of order, whichever is first. Under no circumstances shall shipment be made without 100% payment of the Purchase Price by Purchaser.
b.1 Order Initiated: US Schools, Universities, Institutions and Government Entities: Orders are initiated upon the completion, execution, and delivery of the Order Form, including signatures, initials and dates, and one hundred percent (100%) payment of the Purchase Price is received by Seller. Or, a purchase order issued and signed by an authorized representative of the institution or purchasing agent and pre-approved by the management of Nelson and Pade, Inc. Balance stated on purchase order is to be remitted to Nelson and Pade, Inc. within 30 days of delivery.
c. Completed Products: The Purchase Price is for the completed Products as described in the attached Order Form. The Purchase Price does not include optional equipment or services, freight, installation or sales tax unless specifically noted on the attached Order Form. Any customization will be included in the attached Order Form and costs of customization are the responsibility of the Purchaser. Seller’s acceptance of the attached Order Form is expressly conditioned on Purchaser’s acceptance of the terms and conditions contained herein. Purchaser, upon placing this order, accepts all the terms and conditions herein without modification.
d. U.S. Dollars: All prices listed are in United States (“US”) Dollars. The Purchase Price shall be paid in immediately available US Dollars.
e. Cancelled Orders: Cancelled orders are subject to a fifteen percent (15%) processing fee for re-stocking standard system components. Seller will not provide refunds for cancellation of orders for customized systems, custom-made components or custom configurations.
f. Interest: If Purchaser fails to pay any amount when due, delinquent amounts shall accrue interest at the rate of eighteen percent (18%) per annum or the maximum amount permitted by law whichever is greater, and Purchaser shall be responsible for all costs of collection, including, without limitation, reasonable attorneys’ fees.
3. DELIVERY SCHEDULE
a. Delivery Date: Purchaser shall allow approximately two-to-ten (2-10) weeks for delivery of the Products from acceptance of the attached Order Form by Seller. Seller will make every effort to fill orders within the time stated, but the stated delivery date is approximate only, and Seller reserves the right to adjust shipment schedules without liability.
b. Common Carrier: The Products will be shipped by common carrier unless Purchaser arranges for alternative delivery at Purchaser’s expense. Once the common carrier takes possession of the Products, accessories, and optional equipment from Seller, the Products, accessories and equipment become the property of the Purchaser and are no longer the property of Seller. The common carrier becomes solely responsible and liable for the safe and proper handling and delivery of Purchaser’s Products, as well as its timely delivery. Purchaser shall be solely responsible for all tariffs, taxes or import or export fees associated with shipment of the Products.
c. Delay or Damage: Upon delivery, it is Purchaser’s responsibility to confirm satisfactory condition of the Products. Acceptance by the Purchaser of the Products waives any claim for loss or damage resulting from delay, regardless of the cause of the delay. If shipment is delayed or suspended by the Purchaser, Purchaser will pay the invoice price for the Products as per the payment terms, together with Seller’s handling and storage charges then in effect, if any. Seller shall not be responsible for loss and damage incurred during transportation and/or installation. Thus, it is Purchaser’s responsibility alone to thoroughly inspect the Products once received by Purchaser, and make notes of any damage, errors or missing items on the bill of lading or other shipping documents provided by Seller. If Products are damaged, it is Purchaser’s responsibility to file a claim with the common carrier. It is Purchaser’s sole responsibility to notify Seller of shortages within seven (7) days of receipt of shipment or any such claims shall be waived.
4. COMPLIANCE WITH LAW; INDEMNIFICATION
a. Government Authorization: Purchaser shall be responsible for obtaining any required authorizations such as an export permit, import license or exchange permit except that if Seller is to make the export shipment, Seller will apply for any required export permit. Whoever is the proper party under the applicable regulations shall make prompt application for any United States Government authorization that may be required to permit the export of the Products. The parties shall assist each other in every manner possible in securing such authorizations as may be required. Seller shall not be responsible if any authorization is denied, revoked, restricted or not renewed and the Purchaser shall not be relieved of its obligation to either accept delivery of and pay Seller for the products when export thereof is authorized, or in the absence of authorization, cancellation charges.
b. Indemnification: Purchaser shall indemnify Seller from and against any and all liability, damages and expenses (including, without limitation, attorneys’ fees) arising from any negligent or intentional act or omission of Purchaser related to the Products or related to the failure of Purchaser or its agents, employees or officers to comply with any local ordinances, laws, rules, or regulations relating to the sale, purchase, installation or use of the purchased Products.
5. INTELLECTUAL PROPERTY PROTECTION
a. Seller’s Intellectual Property (“Intellectual Property”) shall mean all patents, copyrights, trademarks, trade secrets, confidential information, technology, proprietary information, and know-how that is owned, acquired or controlled by Seller as of the date of this Agreement or during the term of this Agreement that relates to the Products, or the development, manufacture or commercialization thereof by Seller. The Intellectual Property includes, without limitation, all documents, transcripts, manuals, reports, manufacturing technology, and technical data, whether in document, electronic or other form, and any other intellectual property rights that would be infringed by the use, development, manufacture, or sale of the Product. All written materials supplied by Seller are copyrighted by Seller, and Purchaser hereby acknowledges Seller’s copyrights in the written material.
b. Purchaser agrees that the Intellectual Property it obtains from Seller and all other business and technical information it obtains from Seller are the confidential property of Seller. Except as expressly and unambiguously allowed herein, Purchaser will hold in confidence and not use or disclose any Intellectual Property and shall similarly bind its employees in writing. This information or Product components or configuration is not to be shared, copied, reverse engineered, reproduced, photographed or transmitted in any form or by any means, electronic, mechanical, scanning, photocopying, recording or otherwise, without the prior written permission of Seller. Purchaser’s nondisclosure obligation shall not apply to information it can document is generally available to the public (other than through breach of this Agreement). Nothing herein shall be read to transfer any ownership rights in the Intellectual Property to Purchaser and all Intellectual Property shall remain the sole and exclusive property of Seller.
6. NON-COMPETE AND INTERFERENCE
Customer agrees from the time of delivery and for 2 years afterward, customer will not directly or indirectly participate in a business, in the U.S. or elsewhere, that offers products (aquaponic systems and supplies) or services (aquaponics training workshops and consulting) similar to those of Nelson and Pade, Inc. This includes participating Customer’s own business or as a co-owner, director, officer, consultant, independent contractor, employee or agent of another business. In particular, Customer will not:
a. solicit or attempt to solicit any business or trade from Nelson and Pade, Inc.’s actual or prospective customers or clients;
b. employ or attempt to employ any employee of Nelson and Pade, Inc.;
c. divert or attempt to divert business away from Nelson and Pade, Inc.;
d. encourage any independent contractor or consultant to end a relationship with Nelson and Pade, Inc.;
e. build or sell aquaponic systems or supplies; or
f. offer aquaponic training courses or consulting.
7. DUTIES AND LIMITATION OF DUTIES OF SELLER
a. Product Manual: Seller shall provide an assembly and operation manual with the Products. The manual includes drawings, photos, information, and installation guidance to further assist Purchaser. The drawings and photos in some cases may not match Purchaser’s exact circumstances. Purchaser cannot claim any rights based on this material. Such reservation of rights also shall apply to
suggestions, advice and other services rendered to Purchaser, including installation and servicing instruction for the Product delivered. All weights, measurements, dimensions, drawings, capacities, specifications, and other particulars of the Products provided by Seller, whether contained in the Order Form, plans, photographs, catalogs, price lists or advertising materials or otherwise, are provided in English, may be in non-metric units, are only approximate and are included solely for Purchaser’s guidance. Such particulars do not form part of this Agreement or order, and deviations therefrom or subsequent changes in design are not grounds for non-acceptance of the Product and do not constitute a breach of this agreement. Seller bears no responsibility for errors or wrong interpretation of drawings, photos, or information regarding installation. Seller reserves the right to make alterations to its Products without notice. Information supplied to the Purchaser by Seller in manuals, documentation, in the context of technical support or as part of the Seller Grower Program is for the use of the Purchaser in the operation of their Aquaponic system from Seller.
b. Assembly Guidance: Upon request by Purchaser, Seller can provide assembly guidance or assembly services for the Products. Any such guidance or services will be quoted separately and are not included in the cost of the Products or accessories. Assembly services do not include the connection of any plumbing component to the incoming water lines or to the outgoing drain lines. Assembly services also do not include any electrical connections. Some of the items in the Aquaponic system are corded and other items will need to be wired directly into the building’s electrical service.
c. Seller is an equipment supplier: Seller is not an architect, engineer, electrical, plumbing or general contractor and does not assume the role, responsibility or liability of these professions. Seller is not responsible for the hiring of or payment to said manufacturers or contractors. Seller also is not responsible for any contractor’s quality of work, workers or related liabilities.
d. Seller can provide a list of the electrical components necessary for the operation of the Products. Any information related to connecting the electrical components to Purchaser’s existing electrical service, the size of Purchaser’s service, or the local electrical or fire codes and requirements must come from local experts or Purchaser’s building and zoning department.
e. Seller can provide a suggested equipment layout with the dimensions of the components, the distance between them, and the distance from the edge of the buildings. Purchaser will need to contact Purchaser’s local building department for requirements for aisle widths, door locations, and other egress compliancy issues.
f. In the event a greenhouse is built adjacent to an existing building, Seller can supply the number and the diameter of the pipes connecting the Aquaponic system components, but Seller cannot make recommendations on how to penetrate the walls or floor of the building. This shall be Purchaser’s sole responsibility. Seller can provide recommendations on a greenhouse construction company, but Seller is not responsible for a builder’s quality of work, workers or related liabilities.
8. DUTIES OF PURCHASER
a. The Purchaser shall hire a certified electrical contractor, a plumbing contractor, and possibly an HVAC contractor licensed in Purchaser’s municipality, to make all connections.
b. Purchaser is solely responsible for securing any required federal, state, and/or local approvals or inspections required to install and operate the Aquaponic system.
c. Purchaser will need to acquire necessary permits and comply with federal, state, and local zoning and codes. Greenhouses supplied by Seller can include engineer-stamped prints for Purchaser’s location. These prints are provided by the greenhouse manufacturer and Purchaser can submit these prints to Purchaser’s building or zoning department. The prints are not sent until Seller receives complete payment from the Purchaser for the greenhouse. Note: If the engineering on the greenhouse results in a requirement for additional materials, the greenhouse cost will increase to reflect this.
d. Purchaser shall install and use the Products in, and shall be solely liable for, full compliance with all applicable laws, regulations, and building codes, and with all applicable Seller instructions and specifications. Seller makes no warranty of any kind, express or implied, including the implied warranty of merchantability or the implied warranty of fitness for a particular purpose, regarding the Products, except as set forth in this Agreement.
e. Purchaser is solely responsible for (i) determining that the Products are suitable for the contemplated purpose and (ii) obtaining any required engineering services or architectural services relating to the project at Purchaser’s own expense.
9. WARRANTIES, REPRESENTATIONS AND LIMITATIONS OF REMEDIES
a. From the moment of purchase, the Purchaser bears all risks for the Products. Seller is not responsible for manufacturer’s quality of work, defects, mis-shipments or instructions on individual system components, pumps or parts of the Aquaponic systems, the related equipment, or the NP-series greenhouse.
b. Successful operation and proper use of the Products is solely the responsibility of the Purchaser. The Aquaponic system will require a suitable supply of water, and electricity, and possibly natural gas or propane for a controlled environment. While Seller may make recommendations for operating requirements and parameters, Seller does not guarantee success, production levels or trouble-free operation. Published production levels of fish and plants are estimates. Actual results of production levels may vary. The components supplied with the Aquaponic system can be installed above grade or below grade. This decision is based on the owner’s choice and is not up to Seller.
c. PURCHASER ACCEPTS RESPONSIBILITY TO VERIFY THAT THE PRODUCTS PURCHASER ACQUIRES WILL MEET PURCHASER’S SPECIFIC REQUIREMENTS. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, SELLER DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. SELLER DOES NOT WARRANT THAT PRODUCTS WILL OPERATE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFICIENCIES, ERRORS, DEFECTS OR NONCONFROMITIES WILL BE CORRECTED. SELLER HAS NO WARRANTY OBLIGATION FOR THIRD (3RD) PARTY PRODUCTS. SELLER DOES NOT PROVIDE A WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY TORT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INJURY OR DAMAGES OF ANY KIND OR NATURE TO PERSON OR PROPERTY, LOSS OF PROFIT OR USE, OR LABOR OR RENTAL COSTS) ARISING FROM THE SALE OR USE OF THE PRODUCTS OR FROM ANY OTHER CAUSE WHATSOEVER, WHETHER BASED ON WARRANTY (EXPRESSED OR IMPLIED) OR OTHERWISE BASED ON CONTRACT, OR ON TORT, OR REGARDLESS OF ANY ADVICE OR REPRESENTATIONS THAT MAY HAVE BEEN RENDERED BY SELLER. SELLER MAKES NO WARRANTIES, IMPLIED OR OTHERWISE, OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR SE, AND PURCHASER HEREBY WAIVES SUCH WARRANTIES. IN NO EVENT SHALL SELLER’S LIABILITY TO THE PURCHASER EXCEED THE PURCHASE PRICE OF THE PRODUCTS.
d. Purchaser’s sole remedy with respect to the Agreement, any accepted Order Form or any Products is Seller’s repair or replacement of Products or, at Seller’s option, refund of sums paid. Purchaser’s right and remedies set forth herein or in any subsequent writing are limited as set forth herein, notwithstanding anything to the contrary. Neither Purchaser nor Seller may bring a claim or action arising out of or related to this Agreement, any Accepted Product Order, or any Product, including any claim of fraud or misrepresentation, more than two years after the cause of action accrues.
10. Arbitration for International Sales
Any controversy or claim arising out of or relating to this Agreement shall be resolved by arbitration before a single arbitrator conducted in accordance with the Commercial Arbitration Rules of the International Centre for Dispute Resolution (“ICDR”) then pertaining, except where those rules conflict with this provision, in which case this provision controls. Any court with jurisdiction shall enforce this clause and enter judgment on any award. The arbitrator shall be selected within twenty (20) business days from commencement of the arbitration from the ICDR’s Roster of Arbitrators pursuant to agreement or through selection procedures administered by the ICDR. Within forty five (45) days of initiation of arbitration, the parties shall reach agreement upon and thereafter follow procedures, including limits on discovery, assuring that the arbitration will be concluded and the award rendered within no more than eight months from selection of the arbitrator or, failing agreement, procedures meeting such time limits will be designed by the ICDR and adhered to by the parties. The arbitration shall be held in New York City, United States, and the arbitrator shall apply the substantive law of the State of Wisconsin, USA, except that the interpretation and enforcement of this arbitration provision shall be governed by the Federal Arbitration Act. Prior to appointment of the arbitrator or thereafter if he is unavailable, emergency relief is available from any court to avoid irreparable harm. In the event of any arbitration or other legal action brought by either party against the other for liability or claims for damages or otherwise under this Agreement, then the successful party shall be entitled to recover from the other party, as part of its damages, its reasonable legal costs and expenses actually incurred.
11. GENERAL PROVISIONS
a. No Alteration: No alteration, waiver, modification of or addition to the terms and conditions herein shall be binding on Seller unless set forth in a writing signed and dated by Purchaser and an officer of Seller. No course of dealing, usage of trade or course of performance will be relevant to supplement or explain any terms used in the attached Order Form.
b. Entire Agreement: This Agreement constitutes the entire agreement between the Parties as to the subject matter hereof, and all prior negotiations, representation, agreements and understandings are merged into, extinguished by and completely expressed by it. This Agreement may be modified or amended only by a writing executed by authorized officers of each of the Parties.
c. Notices: Any notice required or permitted to be given by this Agreement shall be given by postpaid, first class, registered or certified mail, or by courier or facsimile, properly addressed to the other party at the respective address as shown below:
If to Seller: Rebecca Nelson
Nelson and Pade, Inc.
State Hwy 23
Montello, WI 53949
If to Purchaser (if different than on Order Form):
d. Governing Law and Venue: This Agreement shall be deemed made in the State of Wisconsin, USA, and it shall be construed and enforced in accordance with the law of the State of Wisconsin and the United States without regard to conflicts of laws, provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The Parties agree that any legal action between the Parties related in any way to this Agreement shall be brought in the United States District Court for the Western District of Wisconsin, U.S.A., and the Parties do hereby consent to personal jurisdiction in such court. Nothing in this Agreement shall be construed to require the commission of any act contrary to law and wherever there is any conflict between any provision of this Agreement or concerning the legal right of the Parties to enter into this contract and any statute, law or ordinance, the latter shall prevail, but the provision shall be limited only to the extent necessary.
e. Severability: If any provision of this Agreement is held or discovered to both parties’ satisfaction to be illegal, invalid or unenforceable in any jurisdiction or to render any patent in that jurisdiction unenforceable, the provision as it applies to that jurisdiction only shall be replaced automatically as part of the document by a provision as similar in terms as possible but not subject to such infirmity in order to achieve the intent of the parties to the extent possible. In any event, as to that jurisdiction, all other provisions of this Agreement shall be deemed valid and enforceable to the full extent possible.
f. Modification; Waiver: This Agreement may not be altered, amended or modified in any way except by a writing signed by both Parties. The failure of a party to enforce any provision of the Agreement shall not be construed to be a waiver of the right of such party to thereafter enforce that provision or any other provision of that right.
g. Force Majeure: Seller shall not be in default hereunder by reason of its delay in the performance of or failure to perform any of its obligations hereunder, if such delay or failure is caused by strikes, acts of God or the public enemy, riots, incendiaries, interference by civil or military authorities, delays in transit or delivery, or due to additional requests by appropriate regulatory authorities. Seller also shall not be liable to the Purchaser for any delay or failure in performing Seller’s obligations under the attached Order Form to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of Seller, without its fault or negligence, and which event or circumstance, by its nature, could not have been foreseen by Seller. Such events or circumstances include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes, or industrial disturbances.
h. Counterparts: This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and which together shall constitute one instrument.
I am buying this Aquaponics system from Nelson and Pade, Inc. for the purpose of aquaponic food production. It is not my intention to copy or duplicate this system or to sell aquaponics systems, offer aquaponics consulting or offer other services that compete with Nelson and Pade, Inc. I have read and understand the terms of sale.