Terms and Conditions of Sale

These Terms and Conditions of Sale along with any applicable Puget Sound Plants Inc. (“Puget Sound Plants”) Account Agreement, Quote, invoice, delivery ticket (or other delivery document), personal guarantee or Contract Growing Agreement and all documents incorporated by specific reference herein or therein, constitute the complete and exclusive statement of the terms of the agreement governing the sale of goods by Puget Sound Plants to Customer (the “Terms”). The Terms supersede and replace all other terms, understandings, agreements and representations other than stated herein. The Terms apply to each and every Customer order and/or purchase of goods from Puget Sound Plants whether or not the Terms are enclosed with the goods. Without limitation, the Terms take strict precedence over and supersede all terms, conditions and other language set forth by Customer’s existing or future purchase order(s) or any other Customer prepared or provided contract-related document (and Puget Sound Plants expressly rejects all such Customer terms, conditions and other language). Puget Sound Plants expressly reserves the right to change the Terms at any time without notice. To qualify to buy wholesale, you must be actively involved in the wholesale or retail redistribution of the goods – e.g., landscape contractors, building contractors, garden centers. Puget Sound Plants does not sell retail.

1. Pricing and Payment
   1. Customer agrees to pay the total price for the goods as identified in Puget Sound Plants’ Quote along with all additional charges (e.g., delivery) plus any and all applicable taxes. Quotes do not guarantee availability of goods. Without limitation, Quotes do not guarantee timely or otherwise availability of the itemized quantity, description and/or grade of goods Customer acknowledges that availability of goods may change without notice. Quote pricing is valid only for thirty (30) days unless otherwise provided in writing by Puget Sound Plants. All pricing is in US Dollars and shall be paid in US funds.
   2. Payment terms for the goods are as set forth in the Quote – e.g., cash on delivery (“COD”) or net 30 from date of invoice (if Puget Sound Plants has agreed to extend credit terms per a credit application and Account Agreement), etc. If the Quote does not set forth the payment terms, then Customer’s payment for the goods is COD. Interest shall accrue at the rate of eighteen percent (18%) per annum on all past due amounts under the Terms. Customer understands that the fact that past due interest will be imposed does not authorize payment of the account to be made in installments or in any other manner than provided herein. Puget Sound Plants will assess and Customer shall pay a not less than $40.00 “NSF” check fee on all returned checks. Puget Sound Plants will assess and Customer shall pay a not less than $375.00 fee for each RCW 60.04 et seq. lien recorded relating to Customer. Upon request, Customer shall promptly provide information regarding the project address, project owner and general contractor.
   3. Acceptance by Puget Sound Plants of less than full payment shall not be construed as a waiver of Puget Sound Plants’ rights hereunder or at law. Payments received by Puget Sound Plants may be applied to such portion(s) of Customer’s unpaid account as Puget Sound Plants deems appropriate.
   4. Customer agrees to maintain strict confidentiality regarding the price of goods for a period of three (3) years from the date of the Quote and shall not share the price with any third party during that period unless compelled by Court Order.
2. Submittals, Substitutions, Returns and Special Orders.
   1. Upon Customer’s timely acceptance of a Quote, Puget Sound Plants will begin the process of procuring the goods and creating a submittal with proposed substitutions on items listed in the Quote that are not readily available. Puget Sound Plants reserves the right to substitute goods unless Customer states in writing “no substitutes.” Substitutions may be appropriate for several reasons, including but not limited to: timeline allotted, availability of goods between Puget Sound Plants and its preferred vendors, hardiness zones, etc. If photographs are requested by any party for submittal purposes, Customer agrees to pay Puget Sound Plants a fee in the amount of $15.00 per each photo. (Photograph fees will be itemized on a separate invoice.)
   2. All sales are final. Any return of goods is subject to Puget Sound Plants’ sole discretion (and any returned goods must be watered and in the same condition as purchased). Customer agrees to pay a twenty-five percent (25%) restocking fee for any allowed returned goods. (Puget Sound Plants does not accept the return of used pots.) If Puget Sound Plants consents to a return, Customer acknowledges that original delivery charges are not refunded under any circumstance.
   3. Special orders are orders for goods not in stock at Puget Sound Plants. Puget Sound Plants in its sole discretion may require a non-refundable upfront deposit for special orders. Customer acknowledges that there are no returns on special ordered goods under any circumstance.
3. Delivery and/or Pick Up. Puget Sound Plants’ delivery fee, fuel surcharge, and sales tax (if applicable) is determined by the address provided and the particular Puget Sound Plants’ shipping nursery. Puget Sound Plants may refuse a delivery location in its sole discretion. If multiple trips to the jobsite are required, Customer agrees to pay all fees associated with each trip. Customer is solely responsible for making all arrangements necessary to offload and take delivery of the goods on the day of delivery. Customer agrees to inform Puget Sound Plants of all delivery details/information prior to delivery.
   1. Customer agrees to provide Puget Sound Plants at least forty-eight (48) hours prior written notice for the following changes: (i) rescheduling a delivery date, (ii) change of delivery address, and/or (iii) additions or abatements to a confirmed order
   2. Customer agrees that Customer shall be at the delivery point at the estimated delivery time to accept and offload the delivery, check the goods, sign for the delivery, and place the goods in proper storage or growing conditions. If Customer fails to timely attend/receive the delivery, Customer shall be, without limitation, fully and solely liable for any resulting loss or damage to the goods. Customer agrees to carefully examine and count all goods immediately upon receipt. If (i) Customer personnel and/or proper machinery is not onsite and immediately available to promptly offload the goods during the estimated scheduled delivery window and/or if delivery is unavailable due to access, obstructions or any other reason for which Customer is responsible such that a redelivery (or re-redelivery) is necessary; or if (ii) Customer fails to timely provide the forty-eight (48) hours written notice as set forth in Subsection (a) above, then the delivery is a “Failed Delivery.” For a Failed Delivery that is not rescheduled and successfully delivered on the next available delivery date: Customer agrees to immediately pay Puget Sound Plants a twenty-five percent (25%) surcharge fee (25% of the entire delivery order and delivery fee). For a Failed Delivery that is rescheduled and successfully delivered on the next available delivery date: Customer is obligated to pay Puget Sound Plants for the original delivery fee plus the subsequent delivery fee. Customer acknowledges that Puget Sound Plants’ delivery drivers do not participate in the offloading process. Customer, not Puget Sound Plants, is responsible for any delivery address that is incorrect or incomplete.
   3. Customer acknowledges and understands that any estimated delivery time for the availability of delivery or pick up of the goods is a rough estimate only — the estimated delivery or pick up time is not a firm/contractual commitment. Any Puget Sound Plants statements, written or oral, regarding delivery or pick up dates or the like, shall not be binding on Puget Sound Plants. Puget Sound Plants will use commercially reasonable efforts to meet the estimated delivery or pick up time; however, goods may be available for delivery or pick up before or after the estimated delivery or pick up time. In no event shall Puget Sound Plants be liable or responsible for any damages due to any failure on its part to make the goods available at the estimated delivery or pick up time. Customer agrees to immediately respond, in writing, to any Puget Sound Plants request for information relating in any manner to the goods, the Customer’s use of the goods, the status of Customer’s project with respect to the goods, etc.
   4. Puget Sound Plants delivers curbside. Customer warrants that the delivery site shall be free from hazards and/or obstructions. Puget Sound Plants’ driver has the right to refuse to permit offload if conditions are deemed unsafe. If Customer directs Puget Sound Plants to leave the curbside and enter the property or premises, and Puget Sound Plants agrees in its sole discretion to do so, then Customer accepts full and sole liability for any damages caused to the property, persons, vehicle or other. Customer is responsible for informing Puget Sound Plants as to the nature of the delivery address road surface. Certain surfaces (such as gravel or loose, uneven or sloping ground) are not suitable for certain trucks. If the point of delivery is unsuitable for delivery by a certain truck, Customer is responsible for all additional delivery charges. Puget Sound Plants is entitled to deliver the goods in installments in its sole discretion. Puget Sound Plants’ driver (only) shall operate the truck liftgate.
   5. At its sole discretion, and for goods ordered out of certain locations (currently, the Snohomish and/or Olympia, Washington locations only), Puget Sound Plants may allow Customer to browse (including tagging) certain goods and/or coordinate pick up of certain goods at a designated time and pick up area. For any such authorized browsing and/or pick up of goods:
      1. Customer must check in at Puget Sound Plants’ office upon arrival. If Customer’s customer is present for the browsing and/or otherwise, Customer must closely accompany its customer AT ALL TIMES within the Puget Sound Plants location. Customer agrees that Customer, and not Puget Sound Plants, is fully and solely responsible for Customer’s safety and well-being and Customer’s safety and well-being within the Puget Sound Plants location. CUSTOMER ASSUMES FULL AND SOLE RESPONSIBILITY FOR BROWSING FOR GOODS AND WAIVES AND RELEASES PUGET SOUND PLANTS FROM ANY LIABILITY, DAMAGES OR CLAIMS ARISING OUT OF CUSTOMER’S BROWSING FOR GOODS. Customer acknowledges that the above waiver and release shall be interpreted as broadly as permitted under applicable law.
      2. During browsing, pick up, loading and transportation, Customer agrees to adhere to the highest level of caution and safety so to minimize the risk of damage to person or property. For example, and certainly without limitation, (a) Customer shall be on the lookout for uneven or unstable ground conditions, ditches, open holes, and/or other potential tripping hazards and shall further advise its customer of same, and (b) Customer shall cautiously steer completely clear of any and all Puget Sound Plants machinery and/or equipment – including, without limitation, gator or other vehicles, tractors, sprinkler piping and/or sprinkler heads (sometimes mounted high in green houses), etc. — and shall further advise its customer of same.
      3. Anyone not listed as an authorized pick up person, wishing to pick up the goods must first be authorized by Customer in writing. Puget Sound Plants may require a government issued photo identification for verification in its sole discretion. Customer acknowledges that such pick up person or company is acting on its behalf and these Terms shall apply to this agent acting on Customer’s behalf.
      4. Customer is responsible for providing a safe, spacious and otherwise adequate vehicle for loading and transportation and assumes full and sole responsibility for pick up, loading and transportation of goods along with any appropriate supplies (e.g., and without limitation, straps, coverings, etc.). As a courtesy to Customer, Puget Sound Plants may, in its sole discretion, assist with the loading of goods; however, it is Customer’s full and sole responsibility to stop the employee if Customer feels that the load is too heavy for the vehicle or is not otherwise safe or loaded correctly and/or securely. Customer is FULLY and SOLELY responsible for securing of goods and ensuring the goods are properly loaded, tied down, covered and/or otherwise secured prior to leaving the premises — without limitation, Customer is solely responsible for the full and strict compliance with RCW 46.61.655 and any other applicable rules and laws. Puget Sound Plants is not responsible for damages occurring to individuals, vehicles, equipment, other property and/or the goods while loading and/or transporting. If any equipment or machinery is in use, Customer personnel are required to stand at least ten (10) feet away from the operation of any such equipment or machinery and to otherwise exercise diligence to protect them from harm. Without limitation, Puget Sound Plants is not responsible for any negligence, transport damage, vehicle damage, vehicle accidents, or personal injuries in connection with Customer’s pick up, loading, securing, covering and/or transportation of goods. CUSTOMER ASSUMES FULL AND SOLE RESPONSIBILITY FOR LOADING, SECURING, COVERING AND/OR TRANSPORTATION OF GOODS AND WAIVES AND RELEASES PUGET SOUND PLANTS FROM ANY LIABILITY, DAMAGES OR CLAIMS ARISING OUT OF CUSTOMER’S PICK UP, SECURING AND/OR TRANSPORTATION OF GOODS. Customer acknowledges that the above waiver and release shall be interpreted as broadly as permitted under applicable law.
      5. If Customer fails to pick up the goods at the designated time, then, in addition to any and all other damages and remedies available at law, Customer shall also pay Puget Sound Plants a twenty-five percent (25%) failure surcharge fee (25% of the entire pick up order) and further acknowledges that the goods may thereafter be unavailable.
      6. Customer agrees to carefully examine and count all goods immediately upon loading and prior to exiting the Puget Sound Plants facility.
   6. Customer, not Puget Sound Plants, is responsible for any delays and related damages associated with the Customer and/or the project not being ready for the delivery and/or pick up of the goods for any reason (e.g., and without limitation, changes in the project schedule).
   7. Customer agrees to broadly indemnify, defend and hold Puget Sound Plants and/or its officers, directors, owners, employees, subcontractors, affiliates, agents (and their respective insurers) fully harmless from and against any and all claims, loss or damage of any kind whatsoever, including consequential damages, and damages from tort, negligence, strict liability, breach of warranty, breach of contract or other legal theory, along with costs including reasonable attorneys’ fees, court costs and expenses connected therewith, brought by or on behalf of any person or entity arising out of or relating in any manner to (i) the browsing for goods, (ii) the Customer’s presence within a Puget Sound Plants location, (iii) the Customer’s presence within a Puget Sound Plants location, (iv) the delivery of goods and/or (v) the pick up, loading, securing, covering and/or transportation of goods. Subject to Subsection 8(b) below if applicable, Customer’s agreement to indemnify, defend and hold harmless herein is based upon the express understanding that said obligations apply whether such injury or damage be due, or alleged to be due, in whole or in part to the negligence or other liability producing conduct on the part of Puget Sound Plants and/or its officers, directors, owners, employees, subcontractors, affiliates, agents (and their respective insurers).
4. Limited Warranty and Warranty Disclaimer.
   1. As its only limited warranty, Puget Sound Plants warrants the goods to be alive and in healthy condition when loaded into transport – this limited warranty is non-transferrable and is void if payment is not made in full when due for the full price. For all goods sold, and except as otherwise expressly provided above, PUGET SOUND PLANTS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING CONDITION, DURABILITY, LONGEVITY, APPEARANCE, QUALITY, TASTE, PLANTING OR TRANSPLANTING RESULTS, AND ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO PUGET SOUND PLANTS IN SPECIFICATIONS, DRAWINGS OR OTHERWISE. WITHOUT LIMITATION, PUGET SOUND PLANTS DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, THAT THE GOODS ARE FREE FROM PLANT DISEASES, VIRUSES, INSECTS, OR OTHER LATENT DEFECTS WHICH ARE NOT PLAINLY VISIBLE.
   2. All risks to the goods shall transfer to Customer immediately upon delivery or pick up of the goods – Customer should insure the goods accordingly. Customer acknowledges that goods should be planted as soon as possible from pick up or delivery. Customer, not Puget Sound Plants, is fully responsible for all planting (including location, depth, soil condition, etc.), protection, maintenance (including watering, fertilization, etc.) of all goods sold after delivery or pick up. Without limitation, Customer fully understands that the goods are a highly perishable product and will deteriorate in quality if not provided with appropriate aftercare. Different goods require different location and growing conditions and it is the Customer’s sole responsibility to ensure that the goods are suitable for the specific site and conditions. Without limitation, Puget Sound Plants is not responsible for damage to goods from rodents, animals, pets, wear, contaminated soil or damage by others. Title to the goods shall remain with Puget Sound Plants unless and until Customer pays all amounts due Puget Sound Plants for the goods.
   3. Customer acknowledges and agrees that look, shape, taste, color, tone and sizes of the goods are approximate – goods may look different and/or be smaller or larger than specified or expected. Without limitation, look, shape, taste, color, tone and sizes of the goods can vary dependent upon natural factors and timing in relation to growing seasons. Any catalogue and/or website description of goods or images utilized to describe the health, quality, appearance or size of the goods are for representative purposes only and do not reflect the specific goods ordered, nor constitute any warranty. Customer should not rely on those descriptions or images in any manner. Customer expressly assumes all risks relating to different look, shape, taste, color, tone and/or sizes of the goods.
   4. Puget Sound Plants offers several different varieties of goods for sale and is not in the business of providing consulting services or recommendations to customers regarding what varieties of goods they should purchase, planting locations, densities, maintenance, etc. Those decisions are beyond the ability of Puget Sound Plants to make given all the variables; thus, those decisions are solely the Customer’s. Customer shall make no claim against Puget Sound Plants based on an allegation that Puget Sound Plants provided advice and/or recommended that was incorrect, incomplete and/or negligent, and Customer hereby disclaims, waives and relinquishes any such right, claim or cause of action.
   5. Without limitation to other warranty disclaimer provisions in the Terms, Customer may have toured or viewed other similar goods as part of Customer’s decision-making process. Such tour or viewing cannot and does not rise to the level of a “sample or model” and does not create an express warranty that the purchased goods will conform to the tour or viewing similar goods. Without limitation, Customer’s tour or viewing of similar goods does not create an express warranty under RCW 62A.2-313.
5. Damages Limitation, Damages Cap and Claim Deadline. Without limitation, Customer acknowledges that the following Subsections are expressly bargained for and negotiated between the parties:
   1. In NO circumstance shall Puget Sound Plants and/or its officers, directors, owners, employees, subcontractors, affiliates, agents (and their respective insurers) be liable for SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES of Customer (or claims of any third party against Customer) whether in tort, strict liability, contract or otherwise. This express waiver includes, but is not limited to, (i) damages relating in any manner to any loss of the following: profit, use, opportunity, financing, business and/or reputation, and/or (ii) growing costs, inspection costs, transportation costs, and/or any other services and expenses relating to the goods sold.
   2. UNDER NO CIRCUMSTANCE SHALL THE TOTAL LIABILITY OF PUGET SOUND PLANTS AND/OR ITS OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, SUBCONTRACTORS, AFFILIATES, AGENTS (AND THEIR RESPECTIVE INSURERS) FOR A DISPUTE/CLAIM RELATING TO THE TERMS AND/OR THE GOODS EXCEED THE AMOUNT OF THE TOTAL PRICE OF THE SPECIFIC GOODS PROVIDED BY PUGET SOUND PLANTS GIVING RISE TO THE DISPUTE/CLAIM. ALL CLAIMS AND DAMAGES IN EXCESS OF THIS AMOUNT ARE ABSOLUTELY WAIVED AND RELEASED.
   3. All claims of Customer against Puget Sound Plants and/or its officers, directors, owners, employees, subcontractors, affiliates, agents (and their respective insurers) relating to alleged (1) quantity, shipping errors and/or incorrect goods, or (2) defective goods shall be WAIVED AND RELEASED by Customer unless made in writing to Puget Sound Plants within seven (7) days after delivery (or Customer pick up) of the goods. All claims of Customer relating to alleged pricing errors shall be WAIVED AND RELEASED by Customer unless made in writing to Puget Sound Plants within seven (7) days after receipt of Puget Sound Plants’ invoice.
   4. Customer acknowledges that the above Section 5 waiver and release provisions shall be interpreted as broadly as permitted under applicable law.
6. Customer Default. Customer shall be in default under the Terms should it at any time:
   1. 1. Fail to strictly comply with the Terms’ obligations;
      2. File, or have filed against Customer, a petition of bankruptcy or for an arrangement of reorganization; or for a receivership;
      3. Become insolvent or go into liquidation or dissolution or make a general assignment for the benefit of creditors or otherwise acknowledge insolvency;
      4. Fail to timely respond to any Puget Sound Plants request for information as set forth in the Terms; and/or
      5. Fail to timely remit any amount owed Puget Sound Plants under the Terms.

   Upon the occurrence of any of the above-listed items, each of which shall constitute a material default of Customer, Puget Sound Plants shall have the right in its sole discretion, and in addition to any and all other rights, remedies and damages provided by the Terms and/or otherwise at law, as follows:

   1. 1. To terminate Customer’s Terms rights including, without limitation, any rights to possession of the goods;
      2. To cancel any order of goods;
      3. To attempt to sell any grown goods to third-party(ies); and/or
      4. To formally pursue Customer and any other obligated parties for all amounts owing under the Terms along with any other damages suffered by Puget Sound Plants (including, without limitation, the pursuit of any available lien, bond and/or retainage claim rights).
7. Force Majeure and Termination for Convenience.
   1. Without limitation to other Terms language, if Puget Sound Plaints is delayed, hindered or otherwise prevented from complying with the Terms by reason of events or circumstances beyond its direct control including but not limited to Acts of God, wars, riots, acts of terrorism, strikes, lockouts, trade disputes or labor disturbances, breakdown of any plant or machinery, accident, weather, drought, storm, fire, flood, crop failure, difficulties in obtaining materials, transport or labor, disease, insects, infestation, chemical damage, pandemic, epidemic, virus or any other circumstances affecting in any manner the Terms and/or the goods, then Puget Sound Plants shall not be liable to Customer for any loss or damage which may be suffered by Customer whether as a direct or indirect result of such occurrences.
   2. Customer agrees that Puget Sound Plants, for any reason, on three (3) days’ written notice, may terminate an order/sale in whole or in part for Puget Sound Plants’ convenience. Customer agrees that its complete and sole remedy for termination for convenience shall be limited to any deposits and/or other funds advanced by Customer for the order/sale. Customer shall not be entitled to any additional compensation of any kind including, but not limited to, replacement costs, compensation for loss of anticipated profits or goods not provided, etc.
8. Indemnification.
   1. Customer agrees to broadly indemnify, defend and hold Puget Sound Plants and/or its officers, directors, owners, employees, subcontractors, affiliates, agents (and their respective insurers) fully harmless from and against any and all claims, loss or damage of any kind whatsoever, including consequential damages, and damages from tort, negligence, strict liability, breach of warranty, breach of contract or other legal theory, along with costs including reasonable attorneys’ fees connected therewith, brought by or on behalf of any person or entity arising out of or relating in any manner to the Terms and/or the goods which are the subject hereof. Subject to Subsection (b) below if applicable, Customer’s agreement to indemnify, defend and hold harmless herein is based upon the express understanding that said obligations apply whether such injury or damage be due, or alleged to be due, in whole or in part to the negligence or other liability producing conduct on the part of Puget Sound Plants and/or its officers, directors, owners, employees, subcontractors, affiliates, agents (and their respective insurers).
   2. If and only if a court with proper jurisdiction determines that RCW 4.24.115 applies to the Terms and/or sale of the goods, then and only then the parties agree as follows:
      1. For any obligation of Customer in the Terms to indemnify, defend and hold harmless arising out of bodily injury to persons or damage to property, if such claim or damage is caused by or results from the concurrent negligence of (a) Puget Sound Plants and/or Puget Sound Plants’ agent, servant or employee and (b) Customer and/or Customer’s agent, servant, or employee, the above indemnity provisions provided herein shall be valid and enforceable only to the extent of Customer’s and/or Customer’s agent’s, servant’s or employee’s negligence.
      2. Customer is not required to indemnify, defend and hold Puget Sound Plants and/or its officers, directors, owners, employees, subcontractors, affiliates, agents (and their respective insurers) harmless for claims, actions, lawsuits or damages caused by the sole negligence of Puget Sound Plants or Puget Sound Plants’ agent, servant or employee.
9. Miscellaneous.
   1. In the event any clause or provision of the Terms shall be held to be invalid or illegal, then the remaining clauses and provisions shall nevertheless be and remain in full force and effect. Customer agrees that the Terms shall not be construed against either party as the drafter. The Section titles herein are for convenience only and do not represent part of the agreement between the parties. Puget Sound Plaints’ failure to enforce at any time or for any period of time any one or more of the provisions of this Agreement shall not be construed as a waiver of any such provisions; nor shall Puget Sound Plants’ conduct or omission constitute a waiver of any such provisions. 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. Customer acknowledges that it has had a full opportunity to consult with independent counsel regarding the language of the Terms prior to ordering any goods. All typographical or clerical errors made by Puget Sound Plants in any Quote, acknowledgment or publication are subject to correction. All references to “days” (and associated deadlines) herein are calendar days and not business days.
   2. This Agreement shall be binding upon the parties hereto, and their heirs, successors, executors, administrators and permitted assigns. Customer is not permitted to assign nor transfer this Agreement or any rights or obligations hereunder without the prior written consent of Puget Sound Plants. The parties acknowledge and agree that this is a commercial (not a consumer) Agreement.
   3. Subject to Subsection 5(c) above, the parties agree to attempt to resolve any Customer claim against Puget Sound Plants through good faith negotiation as a condition precedent to Customer commencing any legal proceeding. If negotiation is not successful, then before Customer beginning any legal proceeding, the parties further agree to engage in non-binding mediation for all Customer claims against Puget Sound Plants, conducted by a mediator selected by them. If the parties are unable to agree upon a mediator, the mediation will be in accordance with the American Arbitration Association under its Construction Industry Mediation Procedures. Either party may give written notice to the other party requesting mediation for Customer’s claim and the parties agree to use their best efforts to conduct the mediation within ninety (90) days of the notice. The parties will share the cost of mediation equally. The above good faith negotiation and mandatory mediation requirements shall not apply to any Puget Sound Plants’ claims against Customer.
   4. The performance, interpretation and enforcement of the Terms shall be governed in accordance with the laws of the State of Washington. The Convention for the International Sales of Goods shall not apply to the Terms. At Puget Sound Plants’ sole discretion, Customer agrees and consents to King County Superior Court (Seattle) jurisdiction and venue. The prevailing party to any lawsuit relating to the Terms and/or the goods shall be entitled to recover from the other party its pre-judgment and post-judgment attorneys’ fees, costs and expenses (including expert fees). No change, modification, rescission, discharge, abandonment, or waiver of these terms and conditions shall be binding upon the Puget Sound Plants unless made in writing and signed on its behalf by a duly authorized representative of Puget Sound Plants. Customer expressly and knowingly WAIVES the right to a jury trial on any issues relating to the Terms and/or goods.