Terms and Conditions

Sunshine Enterprise
(dba StepUp Scaffold) Terms and Conditions of Sale

TERMS AND CONDITIONS OF SALE

These Terms and Conditions govern the sale of Products (“Product” or “Products”) by Stepup Scaffold and its subsidiaries and affiliates (“Seller”), as well as by third-party vendors and/or service providers of Seller, to any buyer (the “Buyer”). These Terms and Conditions take precedence over any supplemental and/or conflicting terms and conditions from the Buyer, to which notice of objection is hereby given. The Seller hereby rejects all terms or conditions proposed by the Buyer, regardless of whether they are contained in any of the Buyer’s business documents (including purchase orders) and/or website, or in any other form of communication as detailed in the Notice below.

NOTICE: THE SALE OF ANY PRODUCT, BASED ON AN ORDER TO PURCHASE PRODUCTS OR OTHERWISE, IS CONDITIONED ON THE BUYER’S AGREEMENT TO THESE TERMS AND CONDITIONS. THE SELLER OBJECTS TO ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY THE BUYER, INCLUDING ANY TERMS OR CONDITIONS THAT DIFFER FROM THIS DOCUMENT IN ANY WAY ASSERTED BY THE BUYER AS APPLICABLE TO THIS TRANSACTION. NO BUYER FORM SHALL MODIFY THESE TERMS AND CONDITIONS, NOR SHALL ANY COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE OPERATE AS A MODIFICATION OR WAIVER OF THESE TERMS AND CONDITIONS. NEITHER THE SELLER’S COMMENCEMENT OF PERFORMANCE NOR DELIVERY SHALL BE DEEMED OR CONSTRUED AS ACCEPTANCE OF THE BUYER’S SUPPLEMENTAL OR CONFLICTING TERMS AND CONDITIONS. THE SELLER’S FAILURE TO OBJECT TO CONFLICTING OR ADDITIONAL TERMS WILL NOT CHANGE OR ADD TO THESE TERMS AND CONDITIONS. THE BUYER’S ACCEPTANCE OF THE PRODUCTS FROM THE SELLER SHALL ALSO BE DEEMED TO CONSTITUTE ACCEPTANCE OF THESE TERMS AND CONDITIONS. UNLESS OTHERWISE SPECIFIED IN THE QUOTATION, THE SELLER’S QUOTATION SHALL EXPIRE THIRTY (30) DAYS FROM ITS DATE AND MAY BE MODIFIED OR WITHDRAWN BY THE SELLER BEFORE RECEIPT OF THE BUYER’S CONFORMING ACCEPTANCE.

1. DEFINITIONS

(A) “Buyer” refers to the entity receiving Products from Seller under the Contract.

(B) “Contract” is the agreement signed by both parties or the purchase order signed by Buyer and accepted by Seller, including these Terms and Conditions, Seller’s final quotation, and order acknowledgment. These Terms and Conditions take precedence over other documents in case of conflict.

(C) “Contract Price” is the agreed price for the sale of Products stated in the Contract, with any adjustments per the Contract.

(D) “Product” or “Products” means the goods Seller has agreed to supply to Buyer under the Contract.

(E) “Seller” refers to the entity providing Products under the Contract.

(F) “Terms and Conditions” mean these terms, including any modifications or additional provisions in Seller’s final quotation or agreed upon in writing.

2. ORDERS AND BUYER’S LIABILITY FOR TAXES

(A) Orders. All orders placed by the Buyer are subject to the Seller’s acceptance and shall expire within thirty (30) days from the issuance date by the Buyer unless earlier revoked by the Buyer or accepted by the Seller. Orders may not be canceled or rescheduled without the Seller’s written consent. All orders must identify the Products, unit quantities, part numbers, applicable prices, and requested delivery dates of the Products being purchased.

(B) Taxes. All quoted prices include transportation, insurance costs, and all other taxes, including federal, state, and local sales, use and excise taxes, value-added taxes, goods and services taxes, and any other taxes unless otherwise stated. The Buyer agrees to indemnify and hold the Seller harmless for any tax-related liability in connection with the sale, including the collection or withholding thereof, along with penalties and interest. When applicable, transportation and taxes will appear as separate items on the Seller’s invoice. Any increases in sales taxes, tariffs, or other taxes after the order has been accepted will be the Buyer’s responsibility. The Seller will notify the Buyer of such increases within ten (10) business days.

3. DELIVERY, TITLE AND SHIPPING

(A) Delivery. Title and risk of loss pass to the Buyer upon the delivery of the Product to the delivery carrier at the Seller’s location. The Buyer shall pay all delivery costs and charges or pay the Seller’s standard shipping charges plus handling. Unless otherwise instructed by the Buyer in writing, the Seller shall select the carrier. Partial deliveries are permitted. The Seller may deliver Products ahead of the delivery schedule. Delivery times are approximate and dependent upon the prompt receipt by the Seller of all information necessary for the delivery of the Products. The Seller shall not be liable for any loss or expense (consequential or otherwise) incurred by the Buyer as a result of any delay in delivery for any reason other than arbitrary refusal of the Seller to perform. The Seller may deliver Products in installments.

(B) Title and Risk of Loss. Title and risk of loss to Products purchased under these Terms and Conditions shall pass to the Buyer upon delivery to the carrier F.O.B. Origin at the Seller’s location, regardless of whether the Products conform to the terms of the Contract. If the Products delivered do not correspond in quantity, type, or price to those itemized in the shipping invoice or documentation, the Buyer shall notify the Seller in writing within 24 hours after receipt; otherwise, the Products shall be deemed to conform as to quantity, type, and price. The Seller’s delivery dates are estimates only, and the Seller is not liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of the Seller, nor shall the carrier be deemed an agent of the Seller. A delayed delivery of any part of an Order does not entitle the Buyer to cancel other deliveries. If any shipment of Products is delayed at the Buyer’s request, the Seller may invoice the Buyer for such Products, and the risk of loss to such Products shall pass to the Buyer on the date the Seller is prepared to make shipment. The Buyer shall, at its sole risk and expense, arrange for or provide transportation of the Products from the place of delivery ex-works, to the Products’ final destination if it is other than the place of delivery.

(C) Seller Not Liable for Any Non-Delivery By Carrier. The SELLER SHALL NOT BE LIABLE FOR ANY NON-DELIVERY OF THE PRODUCTS OR ANY FAILURE OF THE BUYER TO RECEIVE THE PRODUCTS FROM THE CARRIER. The Buyer shall be responsible for any and all freight and restocking fees if delivery is not made within 24 hours at the Buyer’s location. See section 7(B).

4. SECURITY AND RISK OF LOSS

(A) Title and risk of loss pass to Buyer according to Section 3 of these Terms and Conditions.

(B) Seller retains a security interest in the Products, including any replacements, and all proceeds until Buyer pays the full purchase price (including taxes, delivery, and additional charges). If Buyer fails to pay any amount when due, Seller has the right to repossess and remove the Products. This action does not affect Seller’s other legal or equitable remedies. Buyer agrees to perform, execute, and deliver any further acts and instruments as Seller may reasonably request to perfect and protect Seller’s security interest in the Products, including filing appropriate financing statements.

(C) As collateral for the full payment of the purchase price of the Products, Buyer grants Seller a lien on and security interest in all of Buyer’s rights, titles, and interests in the Products, wherever located, whether currently existing or acquired later, including all accessions, replacements, modifications, and proceeds (including insurance proceeds). The security interest constitutes a purchase money security interest under the Tennessee Uniform Commercial Code. Seller has the right to file any necessary documents and take actions to protect its security interest. Failure to file such documents does not waive Seller’s right to the security interest.

(D) Seller has the right to repossess and remove the Products from any location and recover all monies owed. This repossession does not affect Seller’s other legal or equitable remedies.

5. CONTRACT PRICE

Buyer will purchase the Products at the Contract Price, as specified on the invoice or price quotation. Prices may change if Seller’s costs increase, market conditions change, or other uncontrollable factors arise. Price quotations expire 30 days from issuance unless stated otherwise. Prices can change, and Buyer will be notified of any increases. Buyer can cancel undelivered orders within 10 days of receiving a price increase notice by informing the Seller in writing. Upon cancellation, Buyer must pay for completed or in-progress Products. All prices are confidential and should not be disclosed to unrelated parties.

6. PAYMENT AND DEFAULT

(A) Terms of payment are net 30/60/90 days with the method of payment specified in the invoice. Payment shall be made for the Products regardless of whether the Buyer has conducted any inspection or use of the Products.

(B) Failure by the Buyer to make any payment when due according to these Terms and Conditions will constitute a default. For all unpaid invoices, the Buyer shall pay interest on late payments at the rate of 1.5% per month, calculated daily and compounded monthly. If the Buyer fails to make each payment when it is due, the Seller reserves the right to modify or withdraw credit and either suspend or cancel performance under any purchase orders or agreements where credit has been extended to the Buyer. In the event of default by the Buyer, the Seller is entitled to recover costs, fees, and expenses, including attorney fees, court costs, and collection costs. Additionally, the Seller has the right to suspend the delivery of any Products if the Buyer fails to pay any amounts when due and such failure continues for thirty (30) days following written notice.

(C) The Buyer shall not withhold payment of any amounts due by reason of any set-off of any claim or dispute with the Seller, whether related to the Seller’s breach, bankruptcy, or otherwise.

(D) If the Buyer disputes any invoice or portion thereof, they must notify the Seller in writing within thirty (30) days of receiving the invoice, detailing the reason for the dispute, and pay all undisputed amounts. All charges not disputed in writing within this period will be deemed undisputed and shall be payable as outlined above.

(E) Any material breach of these Terms and Conditions other than payment as described in section 6(A) will constitute a default. Non-compliance with these Terms and Conditions shall be considered a material breach. The Seller’s failure to declare a default for any breach of these Terms and Conditions does not waive the Seller’s right to declare future defaults.

(F) Upon default by the Buyer, the Seller may terminate the Contract and/or these Terms and Conditions fifteen (15) days after providing written notice of the default to the Buyer, pursuant to Section 32 below.

7. CANCELLATION OF PURCHASE ORDER

(A) Cancellation. Buyer may cancel its order only with the prior written consent of the Seller, which the Seller may withhold at its sole discretion. Products classified as NC/NR status (Non-cancelable and Non-Returnable) are specified on the Order Acknowledgement for all other orders. All cancellations will be subject to payment of reasonable and proper cancellation charges to the Seller.

(B) Restocking Fee for Returned Products. Buyer may return Products at its own expense and only with the prior written authorization from the Seller, subject to a restocking fee amounting to 15% of the Purchase Price. Returns of special, custom, or made-to-order Products are not permitted. No returns will be accepted more than sixty (60) days after delivery under any circumstances. Upon receipt and inspection of returned items, the Seller will inform the Buyer of the refund status.

(C) All Contract Prices exclude all sales, use, excise taxes, and any other similar taxes, duties, and charges imposed by any governmental authority on amounts payable by the Buyer. The Buyer shall be responsible for all such taxes, costs, and charges.

8. LIMITED WARRANTY

The Seller warrants that the Products are free from defects in materials and workmanship at the time of shipment. The Buyer is solely responsible for determining the suitability of any Products purchased. If, upon the Buyer’s inspection, the Products are found to be defective, the Seller will, at its discretion, either repair or replace the defective Products or refund an appropriate portion of the Contract Price for the defective Products. The Seller shall have no obligation concerning any defect in the Products unless notified within thirty (30) days following the shipment, detailing the full particulars of the claim. The Seller reserves the right to inspect the allegedly defective goods on the Buyer’s premises or, at the Seller’s request, at a designated facility. The remedy of repair, replacement, or refund provided herein constitutes the sole and exclusive remedy of the Buyer for defective goods.

THE FOREGOING SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE. THE SELLER WILL NOT BE LIABLE FOR INJURIES OR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM ANY CAUSE WHATSOEVER. THIS LIMITATION APPLIES TO ALL PRODUCTS BOTH DURING AND AFTER THE WARRANTY PERIOD. UNDER NO CIRCUMSTANCES SHALL THE SELLER BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR COMMERCIAL LOSSES, EVEN IF THE SELLER HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. To the extent that limitations or exclusions of liabilities or damages are not permitted under applicable law, this limited warranty will apply to the maximum extent allowed by such law.

9. LIMITATION OF WARRANTY

The limited warranty does not cover any Products manufactured by the Seller that have been subjected to misuse, neglect, accident, improper testing or installation, unauthorized repair, or alteration, whether by the Buyer or others. This warranty will not be expanded, and no obligation or liability will arise from any technical advice or assistance, qualification or testing data, or services that the Seller may provide in connection with the Buyer’s purchase.

10. DISCLAIMER OF WARRANTY

The above warranty replaces all other warranties, whether express or implied, and all other obligations or liabilities of the seller. All implied warranties, terms, and conditions (whether statutory or otherwise) are excluded to the fullest extent permitted by law. Specifically, the seller does not warrant the merchantability of the products, their suitability or fitness for any particular purpose, non-infringement of third party rights, or provide warranties against latent defects.

In no event shall the seller’s total liability to the buyer, whether for breach of contract, warranty, negligence, strict liability in tort, or otherwise, exceed the price of the particular products sold hereunder with respect to which losses or damages are claimed. The seller will not be liable for incidental, consequential, special, indirect, or punitive damages under any circumstances.

All products are sold for commercial use only and are not intended for consumer use. Accordingly, the seller disclaims all warranties to consumers as defined by the Magnuson-Moss Act and/or applicable Canadian Consumer Protection Act. The seller shall not be liable for any improper use, installation, or maintenance of the products by the buyer.

11. LIMITATION OF LIABILITY

(A) Despite any statute of limitations, Seller will not be liable to Buyer or any third party for loss of use, revenue, profit, value, or any consequential, indirect, incidental, special, exemplary, or punitive damages, whether due to breach of contract, tort (including negligence), or otherwise. This applies regardless of foreseeability or whether Seller had been advised of the possibility of such damages, and despite the failure of any agreed remedy’s essential purpose.

(B) Seller’s total liability under this contract, whether due to breach of contract, tort (including negligence), or otherwise, will not exceed the amounts paid to Seller for the products sold or services performed hereunder.

(C) This limitation of liability is a key part of the parties’ agreement and reflects the negotiated risk allocation between Seller and Buyer, without which Seller would not have provided the products at the agreed price.

12. TECHNICAL ASSISTANCE OR ADVICE

Should technical assistance or advice be offered or provided to the Buyer, such assistance or advice is furnished at no cost and solely as a courtesy to the Buyer. The Seller shall not be liable for the content or the Buyer’s use of said technical assistance or advice. Furthermore, any statements made by any of the Seller’s representatives in relation to the Products or Services shall not be construed as representations or warranties, whether express or implied.

13. ADEQUATE ASSURANCE & TERMINATION

(A) Adequate Assurance. Seller reserves the right, through written notice, to cancel any order or require full or partial payment or adequate assurance of performance from Buyer, without liability to Seller, in the event of: (i) Buyer’s insolvency, (ii) Buyer’s filing of a voluntary petition in bankruptcy, (iii) the appointment of a receiver or trustee for Buyer, or (iv) the execution by Buyer of an assignment for the benefit of creditors. Seller retains the right to suspend its performance until payment or adequate assurance of performance is received and also retains the right to revoke Buyer’s credit at any time for any reason.

(B) Termination. In addition to any remedies provided under these Terms and Conditions, Seller may terminate any contract with Buyer with immediate effect upon written notice to Buyer if Buyer: (i) fails to pay any amount due under any contract, and such failure continues for thirty (30) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms and Conditions, either in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy, or commences or has proceedings commenced against it relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.

14. COMPLIANCE WITH LAWS

(A) Buyer acknowledges that the Products may be utilized in various jurisdictions for diverse applications, each subject to different regulations. Consequently, Seller cannot guarantee compliance with all applicable laws and regulations. Seller disclaims any warranty or representation that the Products conform to federal, state, or local laws, regulations, ordinances, codes, or standards, except as expressly stated by Seller in writing. Buyer shall adhere to all relevant laws, regulations, and ordinances.

(B) The Products covered by a quotation and/or order may be subject to various laws, including U.S. and foreign export controls. Seller is dedicated to complying with all pertinent export laws. If these items are of United States origin and are being exported from the United States, the following statement applies: “These commodities, technology, or software were exported from the United States in accordance with the Export Administration Regulations. Diversion contrary to U.S. law is prohibited.” Buyer is responsible for obtaining export licenses, if required, based on the end user or country of ultimate destination. Seller’s obligations are contingent upon Buyer’s adherence to all U.S. and other applicable trade control laws and regulations. Buyer shall not trans-ship, re-export, divert, or direct Products other than to the ultimate country of destination declared by Buyer and specified on Seller’s invoice. Buyer agrees to indemnify and hold Seller harmless from any and all costs, liabilities, penalties, sanctions, and fines arising from non-compliance with applicable export laws and regulations.

(C) Buyer represents and warrants that it is not subject to any trade sanctions imposed by the U.S., EU, and/or UN and that it complies with all applicable laws and regulations pertaining to trade restrictions and/or export controls (including trade sanctions imposed by the US, EU, and/or UN). Buyer shall provide evidence of compliance with the foregoing as Seller may reasonably request from time to time.

(D) Buyer represents and warrants that it adheres to all applicable anti-bribery and anti-corruption laws, including the U.S. Foreign Corrupt Practices Act, and has not, directly or indirectly, offered, paid, promised, or authorized the giving of money or anything of value to any government official to influence any act or decision of such government official. Buyer is not, nor is Buyer associated with any organization that is listed by the United States government as a party to which the sale of goods or services is restricted or prohibited.

15. AMENDMENT AND MODIFICATION

These Terms and Conditions can only be amended or modified through a written document that explicitly states it amends these Terms and Conditions and is signed by an authorized representative of each party.

16. WAIVER

A waiver by Seller of any provision of these Terms and Conditions will only be effective if it is explicitly documented in writing and signed by the Seller. The failure or delay in exercising any right, remedy, power, or privilege under these Terms and Conditions shall not be interpreted as a waiver thereof. Additionally, the partial or singular exercise of any right, remedy, power, or privilege does not preclude further exercise of that right or the exercise of any other rights, remedies, powers, or privileges available under these Terms and Conditions.

17. CONFIDENTIAL INFORMATION

All non-public, confidential, or proprietary information of the Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by the Seller to the Buyer—whether orally, in writing, electronically, or through other media formats, and regardless of whether it is marked as “confidential”—is to be considered confidential. This information is intended solely for the use of the Buyer and may not be disclosed or copied without prior written authorization from the Seller. Upon request by the Seller, the Buyer must promptly return all documents and materials received from the Seller. The Seller is entitled to seek injunctive relief for any breach of this section. This confidentiality obligation does not apply to information that: (a) is publicly available; (b) was known to the Buyer at the time of disclosure; or (c) was rightfully obtained by the Buyer from a third party on a non-confidential basis.

18. FORCE MAJEURE

The Seller shall not be held liable or responsible to the Buyer, nor be considered to have defaulted or breached any contract or these Terms and Conditions, for any failure or delay in fulfilling or performing any term of any contract with the Buyer when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the Seller. These include, but are not limited to, acts of God, flood, fire, earthquake, hurricanes, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, outbreak of any communicable disease, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), restraints or delays affecting carriers, or inability or delay in obtaining supplies of adequate or suitable materials, telecommunication breakdown, or power outage.

19. ASSIGNMENT

The Buyer may not assign its rights or delegate its obligations under these Terms and Conditions without obtaining prior written consent from the Seller. Any assignment or delegation made in violation of this section is considered null and void. Assigning or delegating does not relieve the Buyer of its responsibilities under this Contract.

20. RELATIONSHIP OF THE PARTIES

The parties involved are considered independent contractors. These Terms and Conditions do not establish any agency, partnership, joint venture, or other joint enterprise, employment, or fiduciary relationship between the parties. Neither party has the authority to contract for or bind the other party in any way.

21. INDEMNIFICATION

The Buyer agrees to defend, indemnify, and hold the Seller, its subsidiaries or affiliates, and their trustees, officers, employees, and agents harmless from any and all losses, lawsuits, liabilities, damages, costs, and expenses (including legal fees) which may arise from or relate to: (i) claims by third parties against the Seller that the Products provided caused damage to property or bodily injury (including death); (ii) any willful misconduct or acts or omissions of the Seller, its agents, or employees in connection with the Contract and these Terms and Conditions; (iii) any defect in the Equipment, or (iv) any breach or default in the performance of the Seller’s obligations. This section’s provisions shall survive the expiration or termination of these Terms and Conditions. The Buyer’s indemnification obligation does not apply to claims caused by the negligence or misconduct of the Buyer.

22. LIMITATION ON ACTIONS BROUGHT BY BUYER

No action, in any form, related to this contract or the sale of the products to the buyer can be initiated by the buyer more than one year after the cause of action occurred.

23. GOVERNING LAW

All matters arising from or related to these Terms and Conditions shall be governed by and interpreted in accordance with the laws of the State of Tennessee, without regard to any choice or conflict of law provisions or rules that would require applying the laws of another jurisdiction.

24. INFORMAL DISPUTE RESOLUTION, JURISDICTION, VENUE, AND GOVERNING LAW

(A) MANDATORY ARBITRATION. If a dispute between Buyer and Seller is not resolved within thirty (30) days from the date of the notice outlined in section 24, then any dispute related to the sale of the Products or these Terms and Conditions shall be settled by binding arbitration. All disputes, claims, or controversies based on contract, tort, statutory, constitutional, or other legal rights, or for losses, damages, or expenses related to the sale of the Products or these Terms and Conditions, must be resolved exclusively by binding arbitration under the Federal Arbitration Act, 9 U.S.C. §§ 1, et seq. (“FAA”), in Shelby County, Tennessee, U.S.A. Buyer consents to this exclusive jurisdiction and waives any objections to arbitration proceedings in Shelby County. The arbitration will be administered by National Arbitration and Mediation (“NAM”) under its Comprehensive Dispute Resolution Rules and Procedures and fee schedule in effect at the time of initiating the proceeding with NAM. Each party bears their own costs and fees.

Neither party will have the right to a jury trial or pre-arbitration discovery except as provided by applicable arbitration rules. The arbitrator’s decision will be final and binding. Rights available in court may not be available in arbitration. An arbitrator’s award may be entered in any court having jurisdiction under the Convention or FAA. Buyer and Seller permit taking depositions under oath in arbitration. If this provision is deemed unenforceable, Section 26(C) governing venue and jurisdiction will apply exclusively. The Arbitrator may award attorney’s fees to Seller for collecting unpaid amounts due from Buyer.

(B) SUBMISSION TO JURISDICTION. If a court finds that the Arbitration clause in Section 26(A)-(B) is inapplicable, unenforceable, or invalid, all disputes related to the sale of the Products or these Terms and Conditions must be litigated before the United States District Court for the Western District of Tennessee in Memphis, or if Federal Courts lack subject matter jurisdiction, before a court in Shelby County, Tennessee, U.S.A. Buyer consents to this exclusive jurisdiction and waives any objections.

25. CLASS ACTION WAIVER

These terms and conditions mandate the resolution of disputes through individual legal action, superseding any law that allows the buyer to participate in a class action. This waiver prevents the buyer from participating in any class or representative action regarding claims brought under these terms and conditions or related to the sale of the products. Regardless of applicable law, the buyer agrees that any arbitration or lawsuit against the seller shall be conducted individually and not as part of a class action. The buyer expressly waives the right to arbitrate claims on a class-action basis.

If the buyer’s claim is subject to arbitration under Section 26, the buyer further agrees that the class action waiver is essential to the arbitration of disputes between the parties and is inseparable from the agreement to arbitrate claims. Only a judge or court of law, not an arbitrator, can determine the validity and effect of this class action waiver. This section cannot be severed from the arbitration clause in Section 26 under any circumstances, and if this class action waiver is unenforceable for any particular claim, such claim will not be subject to arbitration. The buyer agrees that the seller is entitled to immediate judicial assistance to enforce this class action waiver.

26. SEVERABILITY

If any term or provision of these Terms and Conditions is found to be invalid, illegal, or unenforceable in any jurisdiction, this will not affect any other terms or provisions of these Terms and Conditions, nor will it render the term or provision invalid or unenforceable in any other jurisdiction.

27. SURVIVAL

Provisions that should extend beyond the termination or expiration of these Terms and Conditions will remain in effect, including Compliance with Laws, Confidential Information, Governing Law, Indemnification, Submission to Jurisdiction/Arbitration, and Survival.

28. COMPLETE AGREEMENT

These Terms and Conditions constitute the complete agreement between Buyer and Seller regarding the subject matter and replace all previous and concurrent discussions, understandings, and agreements related to it.

29. LANGUAGE

The parties have requested that these Terms and Conditions and all related documents be in English.

30. NOTICES

All notices, requests, consents, and other communications required or permitted under these Terms and Conditions must be in writing and sent by courier or certified mail to the respective addresses of the Buyer and Seller. Notices to the Seller should be sent to: 2005 Fletcher Creek Drive, Memphis, TN 38133. Notices to the Buyer should be sent to the address listed on the Buyer’s purchase order. Either party may update its address by providing written notice to the other party.