I HEREBY AUTHORIZE MOHAWK CANADA CORPORATION AND/OR MOHAWK CARPET DISTRIBUTION, INC. (“SELLER”) TO CONTACT THE ABOVE LISTED BANK, TRADE REFERENCES AND CONSUMER REPORTING AGENCIES AND FOR THEM TO RELEASE CREDIT INFORMATION TO SELLER AS PART OF ITS REGULAR CREDIT INVESTIGATION OF THE CREDIT OF APPLICANT AND GUARANTOR. Any individual described above hereby authorizes Seller, to investigate my credit record and to establish and maintain a file of personal information about me. I consent to Seller obtaining consumer reports and other credit information from, and disclosing consumer reports and other credit information to, credit reporting agencies, the credit bureau, any person or corporation with whom or which I, have or had financial relations, suppliers of services such as collection agencies or bailiffs and persons which Seller may have business dealings with specifically related to the servicing and financing of my account. I consent to this collection, use and disclosure of consumer reports and other credit information for the purposes of: assessing my creditworthiness in connection with financing transactions, making a decision about my credit application; monitoring, evaluating, servicing and collecting my account; and responding to inquiries about my application, account or file. I understand that the provision of my Social Insurance Number ("SIN") is optional and that the processing of my credit application is not conditional on my providing my SIN. I understand that choosing not to provide my SIN is likely to increase the time required to process the Applicant’s application and may result in Seller not receiving current and accurate information about my credit rating. I acknowledge that these authorizations and consents are effective from the date of this credit application and shall continue in effect for so long as required to fulfill the purposes described herein.
TERMS & CONDITIONS: The applicant named above (“Buyer”) and any Guarantor(s) herein accept these terms and conditions as stated as follows.
A) ARBITRATION: Any dispute, claim or controversy arising out of, relating to or concerning in any way this Agreement or the parties’ business relationship, whether sounding in contract, tort, or otherwise, shall be fully and finally settled by binding arbitration administered by the American Arbitration Association pursuant to the Commercial Arbitration Rules, except that claims by Seller for Buyer’s non-payment of the purchase price of products sold by Seller may be brought before any U.S. or foreign judicial court of competent jurisdiction. Any arbitration shall be conducted in Atlanta, Georgia in English. If the total amount in controversy is less than $500,000.00, the arbitration shall be conducted before a single arbitrator; if the total amount in controversy is equal to or greater than $500,000.00, the arbitration shall be conducted before a panel of three arbitrators. The parties agree that this arbitration agreement affects interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § I, et seq., applies. The arbitrator(s) may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Legal fees, including, without limitation, reasonable attorneys’ fees and costs of arbitration, shall be awarded to the prevailing party in the arbitration. Any dispute, claim or controversy as to the arbitrability of a matter shall be decided by the arbitrator(s); however, the arbitrator(s) shall have no power to determine the class arbitrability of any dispute or the enforceability of the class-action waiver set forth in this section A of this Agreement. If the class action waiver set forth in this section A is determined to be unenforceable, then all terms of this section A shall be null and void. Claims may only be brought by a party in its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding, and the arbitrator or arbitrators may not consolidate more than one person claims or otherwise preside over any class or representative proceeding.
B) BUYER’S/GUARANTOR’S LIABILITY FOR ATTORNEYS’ FEES AND COLLECTION EXPENSES: The Buyer and/or Guarantor(s) agrees to pay all reasonable costs and out-of-pocket expenses on a substantial indemnity basis of Seller enforcing or collecting the purchase price or other obligations created hereby or hereinafter arising in favor of Seller (including without limitation, collection agency fees and expenses, if applicant defaults on any payment due to Seller and attorneys’ fees on a substantial indemnity basis and expenses of Seller’s counsel if Seller is the prevailing party in any legal action).
C) ACCEPTANCE: Acceptance of this application by the Seller shall not be construed to require the Seller to sell any products or brands to the Buyer. The Seller is under no obligation to accept any purchase order submitted by the Buyer. The Seller may accept any order (i) by providing an Order Acceptance with respect to such order to the Buyer or (ii) by shipping the products ordered. ALL PURCHASE ORDERS ARE SUBJECT TO THE “WARRANTY, TERMS AND CONDITIONS OF SALE” IN EFFECT ON THE DATE THE PRODUCTS ARE SHIPPED. SELLER RETAINS THE RIGHT TO ALTER THE “WARRANTY, TERMS AND CONDITIONS OF SALE” AT ANY TIME. A CURRENT LIST OF “WARRANTY, TERMS AND CONDITIONS” CAN BE FOUND ON OUR WEBSITE AT http://mohawkind.com/terms-and-conditions.php. All terms contained on the Buyer’s purchase order, other than terms specifying the type(s) of products ordered, the requested shipment date(s) and shipment destination(s) are expressly rejected by the Seller.
D) PERSONAL GUARANTY: In consideration of the Seller’s extending credit to Buyer, the Guarantor(s) jointly and severally, solidarily, personally, irrevocably and unconditionally guarantee and promise to pay Seller, on demand, any and all indebtedness of the Buyer to the Seller. This irrevocable guarantee is a continuing guarantee and shall remain in full force and effect irrespective of any interruption in the business relations of the Buyer with the Seller. The Guarantor(s) waive any right to require that any remedy, including but not limited to any action be taken or brought against the Buyer or any other person before the personal guarantee is enforced.
E) ENTIRE AGREEMENT/NO ORAL AGREEMENTS/GEORGIA LAW: This Agreement constitutes the entire understanding of the parties with respect to its subject matter and merges all prior and contemporaneous communications, understandings, and agreements. This agreement shall be construed pursuant to the laws of the state of Georgia, U.S.A., without regard to its principles of conflicts of law.
F) ADVERTISEMENT: By executing this Application you are giving the Seller permission to fax, e-mail or mail product advertisements or promotion announcements to the fax numbers, e-mail addresses or mailing addresses you have provided to us.
G) LANGUAGE: The parties have expressly requested that this document be drawn up in the English language. Le présent document a été rédigé en anglais à la demande expresse des parties.
WE HAVE READ THE FOREGOING MASTER AGREEMENT AND THE TERMS AND CONDITIONS OF SALE WHICH FORM A PART HEREOF FOR ALL PURPOSES AND AGREE TO BE BOUND BY THEIR TERMS AS IF REPEATED HEREIN IN FULL.
AGREED AND ACCEPTED BY BUYER/GUARANTOR: