Terms and Conditions of Sales
TERMS AND CONDITIONS OF SALE
Disputes pertaining to this Agreement and our services are determined by arbitration. Please see the arbitration and class action waiver provisions below.
1. OBJECT
Subject to the payment of the selling price indicated on the website associated with your purchase, LUXE OUTDOOR LIVING or JACUZZI HOT TUBS OF MIAMI (hereinafter, the “COMPANY”) and its franchises hereby sell to the CLIENT, as well as the products and equipment indicated and described and associated with this purchase either online or on the front page of your written Agreement (hereinafter collectively referred to as the “Equipment”). Should more than one CLIENT be party to this Agreement, such CLIENTS hereby acknowledge being joint and severally bound by all the terms and conditions of this Agreement.
2. SALE PRICE
The CLIENT shall pay the entire selling price of the Equipment in accordance with the payment terms indicated on the front page of the Agreement or associated website. In case of a partial delivery, the company requires a payment equivalent to the selling price of the Equipment delivered. Any unpaid balance of the selling price according to the terms of payment indicated on the front page of this Agreement shall bear interest at the rate of one percent (1%) per month, equivalent to twelve percent (12%) per year. If the project requires additional products or services, these shall be the sole expense and liability of the CLIENT.
3. CHANGE ORDERS
No change in the Equipment or its specifications is binding on COMPANY unless requested by CLIENT's written change order and approved in writing by COMPANY. Any change requested by CLIENT constitutes the Buyer's consent to resulting changes in the Price.
4. DELIVERY AND INSTALLATION AS WELL AS RETURNS
COMPANY’s delivery territory is South Florida. COMPANY delivers from Jupiter, FL down to Key Largo, FL and on the west coast of Florida, from Marco Island to Bonita Springs. If delivery is to be outside these areas, a store associate will call CLIENT to provide a delivery quote and assist in scheduling the delivery.
The date of delivery and/or installation of the Equipment shall be determined by the COMPANY with COMPANY providing at least 24 hours’ notice prior to delivery and a 4 hour window for delivery. The CLIENT shall accept delivery and/or installation of the Equipment on the date determined by the COMPANY. In the event that customer fails to accept delivery and/or installation of the Equipment on the date fixed by the COMPANY, the COMPANY will have the option to cancel the sale and retain the deposit given by the CLIENT. In no event will COMPANY be liable for any damage, or incidental and consequential damages resulting from any delay in delivery or installation of the Equipment. COMPANY is not responsible for changes in delivery dates caused by circumstances out of COMPANY's control (weather, accidents, Government ordered stoppages, natural disasters, lockouts, industrial conflicts, product or labor shortages, labor or transportation delays, etc.). Rural areas may experience a longer than average delivery and install time due to the remoteness of location. COMPANY will make every effort to deliver and install in a timely manner. Please also see Delivery & Pickups link online.
Special note regarding pick-up at store: CLIENT may also pick up at COMPANY store. COMPANY recommends that all products are properly inspected before CLIENT takes them home. COMPANY’s team will gladly open all packages, assist in the inspection process and reseal for safe transport. COMPANY highly recommends bringing furniture pads or blankets to protect the items during transport as well as rope or tie downs. COMPANY will not be responsible for damage that occurs after leaving the store or during transit. It is also CLIENT’s responsibility to make sure the correct items are picked up and in good condition.
Special note regarding Returns: Items purchased on COMPANY’s website such as patio furniture and pre-built green walls can be returned in new condition, in their original packaging within 7 days. All other categories are considered custom orders. Spas, swim spas, saunas, bbqs & grill islands, custom green walls & others various categories are final sales.
In the rare event that a return is authorized, a minimum 15% restocking fee will be accessed as well as an additional delivery fee ($95) if you are unable to return the item(s) yourself. Item(s) must be in new condition. Original delivery fees are non-refundable and do not cover pick up costs. COMPANY reserves the right to determine whether or not merchandise is eligible for return.
5. OBLIGATIONS OF THE CLIENT
5.1 Permits
It shall be the sole responsibility of the CLIENT to investigate and ascertain the applicable zoning and building codes in the area or territory in which the Equipment is to be delivered in order to satisfy himself/herself that the Equipment conforms to all applicable zoning laws, rules, regulations, ordinances, building codes and HOA rules in said area, including certificate of insurance. In the event that the CLIENT fails to comply with such zoning laws, rules, regulations, ordinances, building codes and HOA rules in the said area, the COMPANY shall not be liable for damages or losses of any nature or kind, whether direct or indirect, sustained by such failure.
5.2 SITE PREPARATION
Before delivery, CLIENT shall designate a site on the property identified as the Location on the face hereof or set forth in the online order and prepare such site for installation of the Equipment, which preparation shall include making the site level and moving all electrical wires, and any other improvement reasonably necessary. CLIENT shall provide the COMPANY with all necessary specifications regarding the exact location where the Equipment should be delivered by indicating any obstacles, steps, level drops and other restrictions. The CLIENT shall take all necessary measures to ensure that the COMPANY has easy access from the street to the site where the Equipment is to be installed and has sufficient space to process with such installation. If such access to the site requires a crane, the CLIENT shall be responsible, for all costs related thereto If COMPANY determines that the site is not prepared or suitable for installation, COMPANY may, at its option, terminate this contract or make such further improvements as may be reasonably necessary. If COMPANY makes further improvements to the site, CLIENT agrees to pay the reasonable cost thereof upon completion. If it is determined that any obstructions not known to COMPANY at time of sale requires that special equipment is needed to deliver and/or install the Equipment, if not already noted as part of the Agreement, CLIENT is responsible for any rental or use fees for such equipment. The CLIENT shall assume the sole responsibility and liability of the site of the Equipment. In addition, CLIENT is responsible for obtaining any necessary approval or permitting necessary for the installation.
The job site must be accessible by a truck and trailer with a total length of approximately 50’. The truck and trailer must have the ability to safely turn around as determined by the factory installer/contractor. CLIENT shall be responsible for any and all additional transportation, handling or storage charges not specified on the front side hereof or online and for all special shipping charges if the job-site cannot be accessed by the truck and trailer.
At the time of delivery and/or installation, should the site be determined obstructed or inaccessible due to permanent or temporary structures, CLIENT will pay any and all consequential damages. Including but not limited to return trip fees prior to reinstallation. CLIENT agrees to pay minimum of $95.00 return trip for unsuitable site conditions.
5.3 ACCEPTANCE
The CLIENT shall inspect the Equipment and the installation conducted by the COMPANY and indicate on the delivery slip any apparent defect that it notices. The signing of the delivery slip without any indications constitutes the acceptance and the acknowledgement by the CLIENT that the Equipment and its installation are satisfactory. If the CLIENT requests a delivery without its presence, the COMPANY will be exempt from all dissatisfaction of the Equipment and its installation.
5.4 STANDARDS
The CLIENT shall assemble and/or install the Equipment in accordance with the standards required and/or recommended by the manufacturer, including electrical connections and plumbing work.
5.5 DAMAGES
The COMPANY shall not be held liable for any damage, whether caused directly or indirectly, which occur during the delivery and/or installation of the Equipment. Furthermore, the COMPANY shall not be held liable for any damage incurred during loading of the Equipment by one of its representatives inside or on the roof of the CLIENT’s vehicle or during transportation of the Equipment. In this respect, the CLIENT waives all rights to file any claims against the COMPANY due to damages caused to its property.
5.6 MAINTENANCE AND USE
The client shall always comply with the instructions relating to the maintenance and use of the Equipment, which are provided or transmitted by the COMPANY or its manufacturers.
6. LIMITED WARRANTY
6.1 EQUIPMENT
The COMPANY offers the limited warranties provided by the Equipment manufacturer and provided to the CLIENT with the Equipment information. Within the limits provided by the law, the COMPANY does not offer any other warranty than those specified in this Agreement. For the warranties to be applicable, the CLIENT shall not be in breach under this Agreement and shall advise the COMPANY of any defect within ten (10) days following its occurrence. COMPANY excludes from the warranty and has no obligation to repair or replace the Equipment or component thereof which is not in good order and condition due to: (i) improper set-up delivery or installation by someone other than COMPANY; (ii) loss of or damage to the Equipment or any component thereof resulting from physical impact or other abuse following delivery to CLIENT; (iii) improper handling of any component of the Equipment: or (iv) alteration, modification or repair other than pursuant to Equipment manufacturer's suggested maintenance procedures. COMPANY SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGE TO ANY OTHER PROPERTY. EXCEPT FOR THE LIMITED WARRANTIES SPECIFICALLY SET FORTH IN THIS SECTION, THE EQUIPMENT PROVIDED UNDER THIS AGREEMENT SHALL BE PROVIDED "AS IS". AND THERE ARE NO OTHER WARRANTIES MADE BY COMPANY, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Any other warranties promised by the COMPANY in connection with the Equipment, which in any way conflicts with Equipment manufacturer’s warranties under this section shall be null and void.
6.2 EXCLUSION
Any defect that is not attributable to the COMPANY or that results from the misuse or poor maintenance of the Equipment, from the negligence of the CLIENT or from a fortuitous or other Acts of God event shall be excluded from any warranty. Glass breakage or scratched on aluminum or other finishes shall not be covered by any warranty and neither shall normal wear or tear.
7. CASES OF BREACH
The CLIENT shall be in breach in the following events: (i) failure to pay the selling price of the Equipment in accordance with the terms of payment indicated on the front page of this agreement; (ii) failure to pay any additional fees due to any additional work or materials which are not included in the selling price indicated on the front page of this Agreement; (iii) failure to comply with any of the terms and conditions of this agreement.
7.1 REMEDIES
In case of breach, the COMPANY shall have the option, at its discretion, to require from the CLIENT the immediate reimbursement of any amount due or to resolve the sale by tacking back possession of the Equipment, in accordance with the provisions provided for under the applicable laws.
8. ACCESS
the COMPANY shall, always following the delivery of the Equipment, have access to the site of the Equipment for inspection, maintenance of repair purposes. The site of the Equipment must be free and easily accessible to allow the COMPANY to process with all necessary work.
9. GOVERNING LAW AND DISPUTE RESOLUTION--ARBITRATION AND CLASS ACTION WAIVER
HOW WE AGREE TO RESOLVE DISPUTES—MANDATORY ARBITRATION OF ALL CLAIMS AND DISPUTES: THIS SECTION PROVIDES IMPORTANT INFORMATION ABOUT BINDING ARBITRATION. UNLESS CLIENT OPTS-OUT OF THIS ARBITRATION AGREEMENT BY E-MAILING ARBITRATION@LUXEOUTDOORLIVING.COM WITHIN 30 DAYS OF FIRST SIGNING UP FOR SERVICES, CLIENT AND COMPANY SHALL BE BOUND BY THIS BINDING AGREEMENT TO ARBITRATE ANY CLAIMS, AND GIVE UP ALL RIGHTS TO SEEK RELIEF IN THE COURTS EXCEPT AS PROVIDED HEREIN TO ENFORCE ANY ARBITRATION AWARD. This Agreement shall be governed by the laws of the State of Florida, and any Conflict of Law provisions thereunder. In the event of any controversy, claim, or dispute between the parties arising out of or relating to this Agreement, the parties agree to resolve all issues solely through the use of binding Arbitration, governed by the rules of the American Arbitration Association (“AAA”) pursuant to the Federal Arbitration Act. Any such Arbitration shall take place within Broward County, Florida or at such other location as the parties may agree, and shall be conducted by a mutually agreed upon Arbitrator. The arbitrator shall be neutral, independent, and shall comply with the AAA code of ethics. The arbitrator or arbitration panel shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, applicability, enforceability, conscionability or formation of this Agreement and of this arbitration requirement. The award rendered by the Arbitrator shall be final, binding on all parties, but subject to review in accordance with applicable statutes, rules and regulations governing arbitration awards. Judgment on the award made by the Arbitrator may be entered into any court having jurisdiction over the parties. If either party fails to comply with the Arbitrator’s award, the injured party may petition the Circuit Court for enforcement. The parties further agree that either party may bring claims against the other only in his/her, or its individual capacity and not as a Plaintiff or class member in any purported class action or representative proceeding. Further, the parties agree that the Arbitrator may not consolidate proceedings of more than one person’s claims, and may not otherwise preside over any form of representative or class proceeding. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. In the event that a party fails to proceed with Arbitration, unsuccessfully challenges the Arbitrator’s award, or fails to comply with the Arbitrator’s award, the other party shall be entitled to costs of suit, including reasonable attorneys’ fees for having to compel Arbitration or defend or enforce the award. This section and the arbitration requirement shall survive termination of the Agreement.
10. VALIDITY OF CONTRACT PROVISIONS
If any provision contained in the Agreement (or application thereof to any person or circumstance) shall to any extent be held void or invalid by an arbitrator or court of competent jurisdiction, the remainder of the Agreement (or the application of such provision to persons or circumstances other than those as to which it is held or invalid) shall not be affected thereby, and each provision of the Agreement shall be valid and enforced to the fullest extent of the law.
11. WAIVER
No indulgences expended by any party hereto or any other party shall be construed as a waiver of any breach on the part of such other party, nor shall any waiver of one breach be construed as a waiver of any rights or remedies with respect to any subsequent breach.
12. ENTIRE CONTRACT
This Agreement and the attached insertion order contain the entire Agreement between the Parties hereto regarding marketing to Company’s Consumers. This Agreement shall not be modified, amended or supplemented, or any rights therein waived, unless specifically agreed upon, in writing, by the Parties hereto.
Disputes pertaining to this Agreement and our services are determined by arbitration. Please see the arbitration and class action waiver provisions below.
1. OBJECT
Subject to the payment of the selling price indicated on the website associated with your purchase, LUXE OUTDOOR LIVING or JACUZZI HOT TUBS OF MIAMI (hereinafter, the “COMPANY”) and its franchises hereby sell to the CLIENT, as well as the products and equipment indicated and described and associated with this purchase either online or on the front page of your written Agreement (hereinafter collectively referred to as the “Equipment”). Should more than one CLIENT be party to this Agreement, such CLIENTS hereby acknowledge being joint and severally bound by all the terms and conditions of this Agreement.
2. SALE PRICE
The CLIENT shall pay the entire selling price of the Equipment in accordance with the payment terms indicated on the front page of the Agreement or associated website. In case of a partial delivery, the company requires a payment equivalent to the selling price of the Equipment delivered. Any unpaid balance of the selling price according to the terms of payment indicated on the front page of this Agreement shall bear interest at the rate of one percent (1%) per month, equivalent to twelve percent (12%) per year. If the project requires additional products or services, these shall be the sole expense and liability of the CLIENT.
3. CHANGE ORDERS
No change in the Equipment or its specifications is binding on COMPANY unless requested by CLIENT's written change order and approved in writing by COMPANY. Any change requested by CLIENT constitutes the Buyer's consent to resulting changes in the Price.
4. DELIVERY AND INSTALLATION AS WELL AS RETURNS
COMPANY’s delivery territory is South Florida. COMPANY delivers from Jupiter, FL down to Key Largo, FL and on the west coast of Florida, from Marco Island to Bonita Springs. If delivery is to be outside these areas, a store associate will call CLIENT to provide a delivery quote and assist in scheduling the delivery.
The date of delivery and/or installation of the Equipment shall be determined by the COMPANY with COMPANY providing at least 24 hours’ notice prior to delivery and a 4 hour window for delivery. The CLIENT shall accept delivery and/or installation of the Equipment on the date determined by the COMPANY. In the event that customer fails to accept delivery and/or installation of the Equipment on the date fixed by the COMPANY, the COMPANY will have the option to cancel the sale and retain the deposit given by the CLIENT. In no event will COMPANY be liable for any damage, or incidental and consequential damages resulting from any delay in delivery or installation of the Equipment. COMPANY is not responsible for changes in delivery dates caused by circumstances out of COMPANY's control (weather, accidents, Government ordered stoppages, natural disasters, lockouts, industrial conflicts, product or labor shortages, labor or transportation delays, etc.). Rural areas may experience a longer than average delivery and install time due to the remoteness of location. COMPANY will make every effort to deliver and install in a timely manner. Please also see Delivery & Pickups link online.
Special note regarding pick-up at store: CLIENT may also pick up at COMPANY store. COMPANY recommends that all products are properly inspected before CLIENT takes them home. COMPANY’s team will gladly open all packages, assist in the inspection process and reseal for safe transport. COMPANY highly recommends bringing furniture pads or blankets to protect the items during transport as well as rope or tie downs. COMPANY will not be responsible for damage that occurs after leaving the store or during transit. It is also CLIENT’s responsibility to make sure the correct items are picked up and in good condition.
Special note regarding Returns: Items purchased on COMPANY’s website such as patio furniture and pre-built green walls can be returned in new condition, in their original packaging within 7 days. All other categories are considered custom orders. Spas, swim spas, saunas, bbqs & grill islands, custom green walls & others various categories are final sales.
In the rare event that a return is authorized, a minimum 15% restocking fee will be accessed as well as an additional delivery fee ($95) if you are unable to return the item(s) yourself. Item(s) must be in new condition. Original delivery fees are non-refundable and do not cover pick up costs. COMPANY reserves the right to determine whether or not merchandise is eligible for return.
5. OBLIGATIONS OF THE CLIENT
5.1 Permits
It shall be the sole responsibility of the CLIENT to investigate and ascertain the applicable zoning and building codes in the area or territory in which the Equipment is to be delivered in order to satisfy himself/herself that the Equipment conforms to all applicable zoning laws, rules, regulations, ordinances, building codes and HOA rules in said area, including certificate of insurance. In the event that the CLIENT fails to comply with such zoning laws, rules, regulations, ordinances, building codes and HOA rules in the said area, the COMPANY shall not be liable for damages or losses of any nature or kind, whether direct or indirect, sustained by such failure.
5.2 SITE PREPARATION
Before delivery, CLIENT shall designate a site on the property identified as the Location on the face hereof or set forth in the online order and prepare such site for installation of the Equipment, which preparation shall include making the site level and moving all electrical wires, and any other improvement reasonably necessary. CLIENT shall provide the COMPANY with all necessary specifications regarding the exact location where the Equipment should be delivered by indicating any obstacles, steps, level drops and other restrictions. The CLIENT shall take all necessary measures to ensure that the COMPANY has easy access from the street to the site where the Equipment is to be installed and has sufficient space to process with such installation. If such access to the site requires a crane, the CLIENT shall be responsible, for all costs related thereto If COMPANY determines that the site is not prepared or suitable for installation, COMPANY may, at its option, terminate this contract or make such further improvements as may be reasonably necessary. If COMPANY makes further improvements to the site, CLIENT agrees to pay the reasonable cost thereof upon completion. If it is determined that any obstructions not known to COMPANY at time of sale requires that special equipment is needed to deliver and/or install the Equipment, if not already noted as part of the Agreement, CLIENT is responsible for any rental or use fees for such equipment. The CLIENT shall assume the sole responsibility and liability of the site of the Equipment. In addition, CLIENT is responsible for obtaining any necessary approval or permitting necessary for the installation.
The job site must be accessible by a truck and trailer with a total length of approximately 50’. The truck and trailer must have the ability to safely turn around as determined by the factory installer/contractor. CLIENT shall be responsible for any and all additional transportation, handling or storage charges not specified on the front side hereof or online and for all special shipping charges if the job-site cannot be accessed by the truck and trailer.
At the time of delivery and/or installation, should the site be determined obstructed or inaccessible due to permanent or temporary structures, CLIENT will pay any and all consequential damages. Including but not limited to return trip fees prior to reinstallation. CLIENT agrees to pay minimum of $95.00 return trip for unsuitable site conditions.
5.3 ACCEPTANCE
The CLIENT shall inspect the Equipment and the installation conducted by the COMPANY and indicate on the delivery slip any apparent defect that it notices. The signing of the delivery slip without any indications constitutes the acceptance and the acknowledgement by the CLIENT that the Equipment and its installation are satisfactory. If the CLIENT requests a delivery without its presence, the COMPANY will be exempt from all dissatisfaction of the Equipment and its installation.
5.4 STANDARDS
The CLIENT shall assemble and/or install the Equipment in accordance with the standards required and/or recommended by the manufacturer, including electrical connections and plumbing work.
5.5 DAMAGES
The COMPANY shall not be held liable for any damage, whether caused directly or indirectly, which occur during the delivery and/or installation of the Equipment. Furthermore, the COMPANY shall not be held liable for any damage incurred during loading of the Equipment by one of its representatives inside or on the roof of the CLIENT’s vehicle or during transportation of the Equipment. In this respect, the CLIENT waives all rights to file any claims against the COMPANY due to damages caused to its property.
5.6 MAINTENANCE AND USE
The client shall always comply with the instructions relating to the maintenance and use of the Equipment, which are provided or transmitted by the COMPANY or its manufacturers.
6. LIMITED WARRANTY
6.1 EQUIPMENT
The COMPANY offers the limited warranties provided by the Equipment manufacturer and provided to the CLIENT with the Equipment information. Within the limits provided by the law, the COMPANY does not offer any other warranty than those specified in this Agreement. For the warranties to be applicable, the CLIENT shall not be in breach under this Agreement and shall advise the COMPANY of any defect within ten (10) days following its occurrence. COMPANY excludes from the warranty and has no obligation to repair or replace the Equipment or component thereof which is not in good order and condition due to: (i) improper set-up delivery or installation by someone other than COMPANY; (ii) loss of or damage to the Equipment or any component thereof resulting from physical impact or other abuse following delivery to CLIENT; (iii) improper handling of any component of the Equipment: or (iv) alteration, modification or repair other than pursuant to Equipment manufacturer's suggested maintenance procedures. COMPANY SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGE TO ANY OTHER PROPERTY. EXCEPT FOR THE LIMITED WARRANTIES SPECIFICALLY SET FORTH IN THIS SECTION, THE EQUIPMENT PROVIDED UNDER THIS AGREEMENT SHALL BE PROVIDED "AS IS". AND THERE ARE NO OTHER WARRANTIES MADE BY COMPANY, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Any other warranties promised by the COMPANY in connection with the Equipment, which in any way conflicts with Equipment manufacturer’s warranties under this section shall be null and void.
6.2 EXCLUSION
Any defect that is not attributable to the COMPANY or that results from the misuse or poor maintenance of the Equipment, from the negligence of the CLIENT or from a fortuitous or other Acts of God event shall be excluded from any warranty. Glass breakage or scratched on aluminum or other finishes shall not be covered by any warranty and neither shall normal wear or tear.
7. CASES OF BREACH
The CLIENT shall be in breach in the following events: (i) failure to pay the selling price of the Equipment in accordance with the terms of payment indicated on the front page of this agreement; (ii) failure to pay any additional fees due to any additional work or materials which are not included in the selling price indicated on the front page of this Agreement; (iii) failure to comply with any of the terms and conditions of this agreement.
7.1 REMEDIES
In case of breach, the COMPANY shall have the option, at its discretion, to require from the CLIENT the immediate reimbursement of any amount due or to resolve the sale by tacking back possession of the Equipment, in accordance with the provisions provided for under the applicable laws.
8. ACCESS
the COMPANY shall, always following the delivery of the Equipment, have access to the site of the Equipment for inspection, maintenance of repair purposes. The site of the Equipment must be free and easily accessible to allow the COMPANY to process with all necessary work.
9. GOVERNING LAW AND DISPUTE RESOLUTION--ARBITRATION AND CLASS ACTION WAIVER
HOW WE AGREE TO RESOLVE DISPUTES—MANDATORY ARBITRATION OF ALL CLAIMS AND DISPUTES: THIS SECTION PROVIDES IMPORTANT INFORMATION ABOUT BINDING ARBITRATION. UNLESS CLIENT OPTS-OUT OF THIS ARBITRATION AGREEMENT BY E-MAILING ARBITRATION@LUXEOUTDOORLIVING.COM WITHIN 30 DAYS OF FIRST SIGNING UP FOR SERVICES, CLIENT AND COMPANY SHALL BE BOUND BY THIS BINDING AGREEMENT TO ARBITRATE ANY CLAIMS, AND GIVE UP ALL RIGHTS TO SEEK RELIEF IN THE COURTS EXCEPT AS PROVIDED HEREIN TO ENFORCE ANY ARBITRATION AWARD. This Agreement shall be governed by the laws of the State of Florida, and any Conflict of Law provisions thereunder. In the event of any controversy, claim, or dispute between the parties arising out of or relating to this Agreement, the parties agree to resolve all issues solely through the use of binding Arbitration, governed by the rules of the American Arbitration Association (“AAA”) pursuant to the Federal Arbitration Act. Any such Arbitration shall take place within Broward County, Florida or at such other location as the parties may agree, and shall be conducted by a mutually agreed upon Arbitrator. The arbitrator shall be neutral, independent, and shall comply with the AAA code of ethics. The arbitrator or arbitration panel shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, applicability, enforceability, conscionability or formation of this Agreement and of this arbitration requirement. The award rendered by the Arbitrator shall be final, binding on all parties, but subject to review in accordance with applicable statutes, rules and regulations governing arbitration awards. Judgment on the award made by the Arbitrator may be entered into any court having jurisdiction over the parties. If either party fails to comply with the Arbitrator’s award, the injured party may petition the Circuit Court for enforcement. The parties further agree that either party may bring claims against the other only in his/her, or its individual capacity and not as a Plaintiff or class member in any purported class action or representative proceeding. Further, the parties agree that the Arbitrator may not consolidate proceedings of more than one person’s claims, and may not otherwise preside over any form of representative or class proceeding. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. In the event that a party fails to proceed with Arbitration, unsuccessfully challenges the Arbitrator’s award, or fails to comply with the Arbitrator’s award, the other party shall be entitled to costs of suit, including reasonable attorneys’ fees for having to compel Arbitration or defend or enforce the award. This section and the arbitration requirement shall survive termination of the Agreement.
10. VALIDITY OF CONTRACT PROVISIONS
If any provision contained in the Agreement (or application thereof to any person or circumstance) shall to any extent be held void or invalid by an arbitrator or court of competent jurisdiction, the remainder of the Agreement (or the application of such provision to persons or circumstances other than those as to which it is held or invalid) shall not be affected thereby, and each provision of the Agreement shall be valid and enforced to the fullest extent of the law.
11. WAIVER
No indulgences expended by any party hereto or any other party shall be construed as a waiver of any breach on the part of such other party, nor shall any waiver of one breach be construed as a waiver of any rights or remedies with respect to any subsequent breach.
12. ENTIRE CONTRACT
This Agreement and the attached insertion order contain the entire Agreement between the Parties hereto regarding marketing to Company’s Consumers. This Agreement shall not be modified, amended or supplemented, or any rights therein waived, unless specifically agreed upon, in writing, by the Parties hereto.
