Two Rivers Power, LLC Terms & Conditions

Terms & Conditions
PLEASE READ THESE TERMS AND CONDITIONS OF PRODUCT SALES VERY CAREFULLY. THE TERMS AND CONDITIONS OF PRODUCT SALES ARE LIMITED TO THOSE CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT TERMS IN ANY FORMS DELIVERED BY YOU (“CUSTOMER”) ARE HEREBY DEEMED TO BE
MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY
GIVEN. BY ACCEPTING DELIVERY, AND OR ISSUANCE OF PURCHASE ORDER, CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS OF PRODUCT SALES UNLESS EXPRESSLY AGREED TO IN WRITING BY AN AUTHORIZED TWO RIVERS POWER LLC OFFICER, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN.
Important Information
These Terms and Conditions of Product Sales constitute a binding contract between Customer and Two
Rivers Power, LLC and are referred to herein as either “Terms and Conditions of Product Sales” or this
“Agreement.” Customer accepts these Terms and Conditions of Product Sales by making a purchase,
or placing an order via Purchase Order or otherwise. These Terms and Conditions of Product Sales are subject to change without prior notice, unless otherwise agreed in writing by Two Rivers Power LLC and Customer. Customer
consents to receiving electronic records, which may be provided via Web browser or e-mail application
connected to the Internet; individual consumers may withdraw consent to receiving electronic records
or have the record provided in non-electronic form by contacting Two Rivers Power LLC. Electronic
signatures (or copies of signatures sent via electronic means) are the equivalent of written and signed
documents.
Service and Support
IN THE EVENT THAT ADDITIONAL SERVICES ARE PROCURED OUTSIDE OF THOSE COVERED UNDER
SPECIFIC PRODUCT WARRANTY, EITHER INDEPENDENTLY OR IN CONJUNCTION WITH THE PURCHASE OF PRODUCTS, SUCH SERVICES SHALL BE ON AND SUBJECT TO THE “TERMS AND CONDITIONS OF SERVICE.”
Customer may issue a purchase order for administrative purposes only. Additional or different terms
and conditions contained in any such purchase order will be null and void. Customer agrees that the
Terms and Conditions of Product Sales contained herein and in Two Rivers Power LLC’s invoice or other
Two Rivers Power LLC documentation will control. No course of prior dealings between the parties and
no usage of trade will be relevant to determine the meaning of these Terms and Conditions of Product
Sales or any purchase order or invoice related thereto. This Agreement supersedes all prior
communications (whether verbal, written or electronic) between the parties related to the products.
Governing Law
THESE TERMS AND CONDITIONS OR PRODUCT SALES AND ANY SALE OF PRODUCTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF TENNESSEE, WITHOUT REGARD TO CONFLICTS OF LAWS OR RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN THE CITY AND COUNTY OF MEMPHIS, TENNESSEE AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING.
Except in the case of nonpayment, neither party may institute any action in any form arising out of these
Terms and Conditions of Product Sales more than one year after the cause of action has arisen. The
rights and remedies under these Terms and Conditions of Product Sales are cumulative, are in addition
to, and do not limit or prejudice any other right or remedy available to Two Rivers Power LLC at law or in
equity.
Title; Risk of Loss
Title to products and risk of loss or damage during shipment pass from Two Rivers Power LLC to
Customer upon shipment from product manufacturer’s facility (F.O.B. Origin, freight prepaid and added).
Two Rivers Power LLC retains a security interest in the products until payment in full is
received.
Payment
Orders are not binding upon Two Rivers Power LLC until accepted by Two Rivers Power LLC. Customer
agrees to pay the total invoiced purchase price for the products, plus shipping (to the extent shipping is
not prepaid by Customer). Terms of payment are within Two Rivers Power LLC’s sole discretion. If you
breach the provisions of this Agreement or the terms of any offer, Two Rivers Power LLC may charge or
re-debit your account the full list price for your purchase (in lieu of a discounted or special
price included in the offer). Invoices are due and payable within the time period specified on the invoice,
measured from the date of invoice, subject to continuing credit approval by Two Rivers Power LLC. Two
Rivers Power LLC may invoice Customer separately for partial shipments. Customer agrees to pay
interest on all past-due sums at the lower of 1.5% per month or at the highest rate allowed by law.
Customer will pay for and will indemnify and hold Two Rivers Power LLC and its affiliates harmless from,
any applicable sales, use, transaction, excise or similar taxes and any federal, state or local taxes, fees or
charges (including, but not limited to, environmental or similar fees), imposed on, in respect of, or
otherwise associated with the order or the products. Customer must claim any exemption from such
taxes, fees or charges at the time of purchase and provide Two Rivers Power LLC with the necessary
supporting documentation. Any sales, use or other applicable tax or fees or assessments is based on the
location to which the order is shipped. In the event of a payment default, Customer will be responsible
for all of Two Rivers Power LLC’s costs of collection, including, but not limited to, court costs, filing fees
and attorney fees.
Export Sales
If this transaction involves an export of items (including, but not limited to commodities, software or
technology), subject to the Export Administration Regulations, such items were exported from the
United States by Two Rivers Power LLC in accordance with the Export Administration regulations.
Customer agrees that it will not divert, use, export or re-export such items contrary to United States law.
Customer expressly acknowledges and agrees that it will not export, re-export, or provide such items to
any entity or person within any country that is subject to United States economic sanctions imposing
comprehensive embargoes without obtaining prior authorization from the United States Government.
The list of such countries subject to United States economic sanctions or embargoes may change from
time to time, but currently includes Cuba, Iran, Sudan, and Syria. Customer also expressly acknowledges
and agrees that it will not export, re-export, or provide such items to entities and persons that are
ineligible under United States law to receive such items, including but not limited to, any person or
entity on the United States Treasury Department’s list of Specially Designated Nationals or on the
United States Commerce Department’s Denied Persons List, Entity List, or Unverified List. In addition,
manufacturers’ warranties for exported products may vary or may be null and void for products outside
the United States.
Warranties
The terms and conditions of warranties on each Product shall be set by the manufacturer of each
Product. Reference the warranty of each applicable Product in its corresponding user manual.
Pricing Information; Availability Disclaimer
Two Rivers Power LLC reserves the right to adjust pricing and products for reasons including, but not
limited to, changing market conditions, product discontinuation, product unavailability, and errors in
advertisements. All orders are subject to product availability. Therefore, Two Rivers Power LLC cannot
guarantee that it will be able to fulfill Customer’s orders.
Limitation of Liability
UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY
REMEDY SET FORTH HEREIN, WILL TWO RIVERS POWER LLC, ITS AFFILIATES, SUPPLIERS,
SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS, EVEN IF TWO RIVERS POWER LLC HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE. IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY TWO RIVERS POWER LLC IN CONNECTION WITH THE PRODUCTS; OR (D) ANY UNAVAILABILITY OF
THE PRODUCT FOR USE OR ANY LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE.
NOTWITHSTANDING THE FOREGOING, IN THE EVENT OF ANY LIABILITY INCURRED BY TWO RIVERS
POWER LLC, THE ENTIRE LIABILITY OF TWO RIVERS POWER LLC FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM; OR (B) $20,000.
Confidential Information
Each party anticipate that it may be necessary to provide access to information of a confidential nature
of such party, its affiliates or of a third party, (hereinafter referred to as “Confidential Information”) to
the other party in the performance of this Agreement. “Confidential Information” means any
information or data in oral, electronic or written form which the receiving party knows or has reason to
know is proprietary or confidential and which is disclosed by a party in connection with this Agreement
or which the receiving party may have access to in connection with this Agreement. Confidential
Information will not include information which: (a) becomes known to the public through no act of the
receiving party; (b) was known to the receiving party, or becomes known to the receiving party from a
third party having the right to disclose it and having no obligation of confidentiality to the disclosing
party with respect to the applicable information; or (c) is independently developed by personnel of the
receiving party who have not had access to such information. To the extent practicable, Confidential
Information should be clearly identified or labeled as such by the disclosing party at the time of
disclosure or as promptly thereafter as possible; however, failure to so identify or label such Confidential
Information will not be evidence that such information is not confidential or protectable.
Each party agrees to hold such Confidential Information confidential for a period of three years
following the date of disclosure and to do so in a manner at least as protective as it holds its own
Confidential Information of like kind. Disclosures of Confidential Information will be restricted: (i) to
those individuals who are participating in the performance of this Agreement and need to know such
Confidential Information for purposes of providing or receiving the products or otherwise in connection
with this Agreement; or (ii) to its business, legal and financial advisors, each on a confidential basis.
Upon the written request of a party, the other party will either return or certify the destruction of the
Confidential Information of the other party.
If a receiving party is required by law, rule or regulation, or requested in any judicial or administrative
proceeding or by any governmental or regulatory authority, to disclose the Confidential Information, the
receiving party will give the disclosing party prompt notice of such request so that the disclosing party
may seek an appropriate protective order or similar protective measure.
Damaged Products
Products are shipped F.O.B. Origin. If Customer receives damaged product, a claim should be filed with
the carrier, according to their policies and procedures.
Arbitration
Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present
or future, and including, but not limited to, statutory, common law, intentional tort and equitable
claims) arising from or relating to the products, the interpretation or application of these Terms and
Conditions of Product Sales or the breach, termination, validity thereof, the relationships which result
from these Terms and Conditions of Product Sales (including to the full extent permitted by applicable
law, relationships with third parties who are not signatories hereto), or Two Rivers Power LLC’s or any of
its affiliates’ advertising or marketing (collectively a “Claim”) WILL BE RESOLVED, UPON THE ELECTION
OF ANY ONE OF TWO RIVERS POWER LLC, CUSTOMER OR THE THIRD PARTY INVOLVED, EXCLUSIVELY
AND FINALLY BY BINDING ARBITRATION. If arbitration is chosen, it will be conducted pursuant to the
Rules of the American Arbitration Association. If arbitration is chosen by any party with respect to a
Claim, neither Two Rivers Power LLC nor Customer will have the right to litigate that Claim in court or to
have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the
applicable arbitration rules or by agreement of the parties involved. Further, Customer will not have the
right to participate as a representative or member of any class of claimants pertaining to any Claim.
Notwithstanding any choice of law provision included in these Terms and Conditions of Product Sales,
this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16). The arbitration will
take place exclusively in Memphis, Tennessee. Any court having jurisdiction may enter judgment on the
award rendered by the arbitrator(s). Each party involved will bear its own costs of any legal
representation, discovery or research required to complete arbitration. the existence or results of any
arbitration will be treated as confidential. Notwithstanding anything to the contrary contained herein,
all matters pertaining to the collection of amounts due to Two Rivers Power LLC arising out of sales
hereunder will be exclusively litigated in court rather than through arbitration.
Your Indemnity to Two Rivers Power LLC
To the fullest extent permitted by law, you will indemnify, defend and hold Two Rivers Power LLC,
including Two Rivers Power LLC’s partners, officers, directors, agents, employees, subsidiaries, affiliates,
parents, successors and assigns, harmless from any claim, demand, cause of action, debt or liability
(including reasonable attorney fees, expenses and court costs) arising from: (a) your modification(s) of
and/or addition(s) to Products(s); (b) your breach of this Agreement; (c) your omissions,
misrepresentations, or negligence; and (d) the Products sold by you damage a third party to the extent
such claim is based on (i) your modification of and/or addition to the Products, misuse or abuse of the
Products, negligence or breach of any provision in t his Agreement; (ii) your failure to abide by all
applicable laws, rules, regulations, and orders that affect the Products; (iii) your omission,
misrepresentation, or negligence; or (iv) you or your end-users cause intentional harm to any person or
property. Indemnified claims, debts and liabilities include the amount of any discount in price or
concession that is made available by Two Rivers Power LLC to you.
Miscellaneous
Two Rivers Power LLC may assign or subcontract all or any portions of its rights or obligations with
respect to the sale of Products or assign the right to receive payments, without Customer’s consent.
Customer may not assign these Terms and Conditions of Product Sales, or any of its rights or obligations
herein without the prior written consent of Two Rivers Power LLC. Subject to the restrictions in
assignment contained herein, these Terms and Conditions of Product Sales will be binding on and inure
to the benefit of the parties hereto and their successors and assigns. No provision of this Agreement will
be deemed waived, amended or modified by either party unless such waiver, amendment or
modification is in writing and signed by both parties. The relationship between Two Rivers Power LLC
and Customer is that of independent contractors and not that of employer/employee, partnership or
venture. The invalidity or unenforceability of any provision of this Agreement will not affect the validity
or enforceability of any other provision of this Agreement.