Terms & Conditions of Sale:
These terms and conditions (these “Terms”) apply to the sale of materials, goods, and merchandise regardless of type (“Products”). The business entity selling Products is referred to as “Seller” and the business entity or individual purchasing Products is referred to as “Buyer.” These Terms shall govern and be incorporated into any sale of Products by Seller to Buyer. Any terms in Seller’s quote, Buyer’s purchase order, order form, remittance communication, a written order confirmation from Seller (“Seller’s Order Confirmation”), or any other document which conflict with or are in addition to these Terms are deemed to be material alterations to these Terms and, except to the extent they are (in Seller’s sole opinion) more favorable to Seller than the terms stated herein or accepted by Seller in writing, notice is given to Buyer that any such terms are rejected. The sale of Products is expressly conditioned on Buyer’s acceptance of these Terms. No quotation by Seller and no written or oral order of Buyer shall become a binding obligation of Seller unless and until Seller has accepted, a purchase order from Buyer, in writing, on Seller's form of purchase order and issued a Seller Order Confirmation.
PRICE: The purchase price of Products is set forth in Seller’s quote or Buyer’s Purchase Order to the extent accepted by Seller in Seller’s Order Confirmation. Such purchase price is only valid through the estimated delivery date as shown on Seller’s Order Confirmation and is subject to increase if delivery acceptance is delayed. The purchase price includes standard packaging. In addition to the purchase price, Buyer must pay (a) all applicable federal, state, provincial, and local sales, use, excise, ad valorem, VAT, and other taxes, and all duties and fees imposed by any governmental authority, including, but not limited to, any interest and penalties thereon, imposed upon the sale, delivery, use, or installation of Products; (b) any freight, insurance, duties, and other costs associated with delivery to Buyer; and (c) all upcharges, including upcharges for custom orders. In the event any such costs are paid by Seller, Buyer, upon receipt of an invoice from Seller, will promptly reimburse Seller for same.
INSTALLATION NOT INCLUDED: Installation of Products is the responsibility of Buyer and is not included in pricing. Seller recommends that certified dealers of Seller be engaged for installation of Products and provides notice to Buyer that the Limited Warranty is made expressly conditional on Product installation in accordance with Seller’s installation instructions (available upon request).
CUSTOM ORDERS: All custom orders are subject to applicable upcharges and a 10% production overrun. Custom orders may not be changed or returned. Buyer assumes full liability for payment on all custom orders, whether in the form of raw materials, work-in-process, or finished goods.
ORDER CHANGES: All order change and cancellation requests are subject to Seller approval and Seller reserves the right to use its sole judgment and discretion when and under what circumstances it will approve a change to or cancellation of an order. In the event Buyer desires to cancel any order after Seller’s Order Confirmation has been sent to Buyer, Buyer shall be charged a minimum fee of 25% of the purchase price, which fee shall be due and payable to Seller within 30 days of cancellation. Buyer and Seller agree that the damages which Seller would incur in the event of cancellation are difficult to estimate and that the cancellation fee is a reasonable estimate of the likely damages in such event.
PAYMENT: Payment of the invoiced amount for Products is due within 30 days of the date of Seller’s invoice unless Seller approves credit terms for Buyer in advance in writing. Seller will evaluate Buyer’s creditworthiness and extend and change credit terms in Seller’s sole discretion and Seller reserves the right to require cash payment in advance of production or shipment. Payment must be made in the same currency as invoiced and shall be made without discount. Any payment received from or for the account of Buyer may be accepted or applied by Seller against any indebtedness or obligation owing by Buyer as shown by the books and records of Seller, without prejudice to, or discharge of, the remainder of any such indebtedness or obligation, regardless of any, statement, legend, or notation appearing on, referring to or accompanying such payment. To the extent permitted by applicable law, Seller reserves the right to charge fees for credit card transactions as indicated on the applicable Seller’s Order Confirmation.
LATE FEES: Time is of the essence with respect to all payments due hereunder. A late fee equal to the lesser of 1.5% per month (18% annually), or the maximum rate permitted by applicable law, may be imposed at Seller's option on all past due amounts until such amounts are paid in full. In the event any payment due Seller is collected at law, through or under advice from an attorney-at-law, or through a collection agency, Buyer agrees to pay all reasonable costs of collection, including, but not limited to, all court costs, reasonable attorneys' fees, and expenses incurred by Seller in attempting to collect past due amounts.
DELIVERY: Time shall not be of the essence with respect to delivery of Products and Seller does not guarantee any delivery date; any estimated delivery date is an estimate based on current and anticipated factory loads and shipping timelines. Products are shipped FOB Seller’s shipping location. Seller agrees to make arrangements for and on behalf of Buyer, for the carriage and insurance of Products on such carrier, by such means of shipment, and insured by such insurer as Buyer may designate to Seller in writing. Any arrangements made and expenses incurred by Seller for carriage and insurance of Products, whether per Buyer's written instructions, shall be for the account of Buyer, shall be billed to Buyer, shall be documented at Buyer's request, and shall be due and payable upon invoice. Seller may ship Products in partial shipments and Seller reserves the right to invoice for partial shipments. Invoices for partial shipments shall be due and payable in accordance with these Terms. Notwithstanding the foregoing, if shipment is international, Incoterms 2020 ExWorks (EXW) Seller’s shipping location applies. Buyer must provide shipping instructions promptly upon request of Seller; if Buyer fails to provide shipping instructions for allocated Product promptly upon request, Seller may charge, and Buyer must pay, a monthly storage fee of up to 10% of the purchase price of allocated Product (no partial month proration will be applied). In addition, if Buyer is unable or refuses to accept delivery of any Products, then, in addition to any applicable cancellation fee, Buyer shall pay to Seller all costs incurred by Seller as a result of such inability or refusal to accept delivery, including without limitation reasonable costs of shipping, storage, insurance, and handling.
TITLE: Seller and Buyer agree that all right, title, interest in and to Products, and risk of loss or damage passes to Buyer on delivery to the first common carrier.
INSPECTION: Buyer must inspect Products immediately upon delivery and report shortages or issues to Seller no later than 10 days after receipt. Failure to inspect and report within 10 days after receipt may, at Seller’s sole discretion, result in forfeiture of Buyer’s right to further action, and Buyer will be held responsible for the entire invoice amount. Anything herein to the contrary notwithstanding, to the extent that any defects, shortages or nonconformities in Products are discoverable by inspection upon delivery of Products to Buyer, all obligations of Seller to Buyer with respect to such defects, shortages, or nonconformities (other than Seller's obligations under the Limited Warranty set forth below) shall be deemed to be waived by Buyer unless Buyer notifies Seller of such defects, shortages, or nonconformities in writing within sixty (60) days after delivery of Products. No action, regardless of form, arising out of or in connection with the sale of Products hereunder (other than an action by Seller for any amount due to Seller by Buyer) may be brought more than one year after the cause of action has arisen.
RETURNS: All returns are subject to Seller approval and must comply with Seller’s return policies as communicated by Seller at the time of return. No partial returns will be accepted. No adhesives will be accepted for return. At Seller’s discretion, a restocking charge of 45% or more of the purchase price of Products may be charged on returns; credit will only be issued on receipt of material that is NEW and in SALEABLE condition.
BUYER DEFAULT: Buyer shall be in default hereunder if: (a) Buyer fails to make any payment when due hereunder, or otherwise defaults, breaches, or repudiates any obligation to Seller, whether contained herein or otherwise; (b) Buyer becomes insolvent or is unable to pay, or is generally not paying, its debts as they mature; (c) Buyer makes a general assignment for the benefit of its creditors; (d) a trustee, receiver, or other custodian is appointed for any Products or all or a substantial portion of Buyer's property; or (e) any bankruptcy, insolvency, reorganization, or arrangement proceeding is instituted by or against Buyer. If Buyer is in default hereunder, Seller, in addition to any other rights it has under applicable law, shall have the right to: (i) cancel any quote, Purchase Order, and any other transaction with Buyer (Buyer remaining liable for damages); (ii) defer any shipments hereunder; (iii) subject to applicable law and notice requirements, declare immediately due and payable all amounts due and payable to Seller in connection with these Terms, any other transaction, including, (but not limited to), amounts due and payable for Products delivered hereunder; (iv) recover damages arising from Buyer's default, including, but not limited to, costs, and lost profit; (v) recover all costs of collection, including, without limitation, any extrajudicial attorney’s fees incurred in the process; (vi) exercise all rights available to an aggrieved seller and/or a secured party under applicable law; and/or (vii) sell all or any portion of undelivered Products, without notice, at public or private sale (Buyer to be responsible for all costs and expenses of such sale and any deficiency). Buyer hereby waives any and all rights to notice and hearing prior to repossession of Products upon Buyer's default. Seller's rights hereunder shall be cumulative and in addition to any and all other rights available to Seller under applicable law.
LIMITED WARRANTY: Products are warranted in accordance with Seller's applicable standard product warranty for each product as in effect on the date of Seller’s Order Confirmation of Buyer's order. The applicable version of Seller’s standard product warranties is available from Seller upon request and the most recent versions are available through www.interface.com. It is solely buyer’s responsibility to determine whether Products are suitable for any given application, purpose, or use that may be intended by Buyer for Products. TO THE EXTENT PERMITTED BY APPLICABLE LAW, SELLER EXTENDS NO OTHER WARRANTIES OR GUARANTEES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE OF BUYER, OR WARRANTY OF NONINFRINGEMENT, OR EXACT MATCHING OF SHADE, COLOR/COLOUR, OR MOTTLING. SELLER DISCLAIMS ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE AND ANY OTHER WARRANTY OR GUARANTEE UNLESS EXPRESSLY AUTHORIZED AND ENDORSED IN WRITING BY SELLER. In no event shall SELLER be directly or indirectly liable for any losses, claims, or damages regarding any Products that have not been installed and maintained according to SELLER’s installation and maintenance instructions, that were damaged by a third party, that were installed over an improper subsurface or improperly prepared subfloor, that were improperly repaired, or that were affected by any other mechanical or non-mechanicaL influences. This limited warranty shall not apply to any damage to or failure of any Products resulting from a Force Majeure event as described in these Terms or conditions beyond the reasonable control of Seller, including, but not limited to, accidents, misuse, negligence, improper installation, improper storage, modifications, alterations, tampering, vandalism, or failure to properly maintain Products. No agent, employee, or representative of Seller is authorized to make any warranty or guarantee concerning Products. Any alteration, amendment, or waiver of this Limited Warranty must be in writing and signed by an authorized officer of Seller. To make a claim under any warranty, Buyer must make a written claim in accordance with the applicable Seller standard product warranty and Seller must be given the opportunity to inspect and examine Products.
SECURITY INTEREST: To secure the performance of Buyer's obligations, Seller reserves a security interest in all Products sold hereunder, together with all proceeds thereof, until payment of all amounts due. Buyer hereby agrees, upon request by Seller, to executed and deliver financing statements, notices, and other documents, and to do such other acts as may be necessary for Seller to perfect and maintain the security interest; and Buyer constitutes and irrevocably appoints Seller as its agent and attorney-in-fact for the purpose of executing financing statements, notices, and other documents that may be necessary for Seller to perfect and maintain the security interest.
LIMITATION OF LIABILITY; BUYER INDEMNITY: To the extent permitted by applicable law, in no event shall Seller be liable, whether in contract or in tort or under any other legal theory (including negligence and strict liability), for lost profits or revenues, or special, incidental, consequential, punitive, or similar damages, arising out of or in connection with the sale, delivery, non-delivery, servicing, installation, use, maintenance, or possession of Products, or for any claim made against Buyer, even if Seller has been advised of the possibility of such claim. IN NO EVENT SHALL SELLER'S LIABILITY UNDER ANY CLAIM MADE BY BUYER EXCEED THE PURCHASE PRICE OF PRODUCTS IN RESPECT OF WHICH SUCH CLAIM IS MADE. Buyer agrees to indemnify and hold Seller harmless from and against any and all claims, demands, liabilities, losses, costs, and expenses (including, but not limited to, reasonable attorneys' fees), irrespective of the theory upon which such claims are based, including, but not limited to, negligence and strict liability, that Seller suffers or incurs as a result of any claims, demands, or actions against Seller by third parties arising out of the sale, delivery, non-delivery, installation or servicing of Products, or in connection with the use, condition, installation, possession, operation, ownership, selection, transportation, loading, unloading, maintenance, or return of any of Products, including (but not limited to) claims for injury to property or person (including death); except that Buyer shall have no liability for any such amounts arising out of the sole negligence of Seller.
FORCE MAJEURE: Seller shall not be liable for any default or delay in performance if caused, directly or indirectly, by fire, flood, earthquake, acts of God, strikes, riots or civil disorders, unavoidable casualty, governmental order or state of war, accidents, epidemic, pandemic, quarantine, interruptions of transportation facilities or delays in transit, supply shortages, failure of any party to perform any contract with Seller relative to the production of Products, failure of computers or equipment to properly process dates, or any other cause, whether similar or dissimilar to the causes enumerated herein, beyond the reasonable control of Seller. Seller shall notify Buyer of the occurrence of any such contingency, and if performance by Seller is delayed, the period for performance shall be extended for a reasonable period of time. A force majeure event shall not affect Buyer’s obligation to pay any amount that is due and payable.
ANTI-CORRUPTION: Buyer acknowledges that the sale, resale, distribution, export, and/or re-export of Products supplied to Buyer may be subject to compliance with economic sanctions, export control, anti-corruption, and other applicable laws and regulations. Buyer agrees, with respect to Products supplied to Buyer, to comply with all such applicable laws and regulations, including but not limited to not providing, directly or indirectly, any Products to a party identified on any applicable government sanctions list. With respect to Products provided to Buyer, Buyer will not offer or provide bribes, incentives, or anything of value to any party in violation of applicable anti-corruption law. Buyer agrees to promptly provide Seller with such information as Seller reasonably determines is necessary for compliance with laws specified in this provision. To the extent of Buyer’s breach of its obligations pursuant to this paragraph, Buyer shall defend, hold harmless, and indemnify Seller, as well as Seller’s affiliates and their respective directors, officers, employees, and agents, at its own expense and in a timely fashion, from and against any and all fines, penalties, liabilities, losses, damages, costs, and expenses, including but not limited to amounts paid in settlement and reasonable attorneys’ fees.
MISCELLANEOUS: These Terms, along with any applicable and accepted written purchase order, invoice, or Seller’s Order Confirmation, (i) are the final, entire, and exclusive statement of the terms and conditions between Buyer and Seller with respect to the Products, (ii) supersede all prior discussions and agreements, and (iii) may not be modified except in writing signed by Buyer and Seller. No sales representative or agent of Seller is authorized to bind Seller to any waiver modification, change, amendment, or termination of these Terms. Seller may terminate this agreement at any time with or without cause for any reason. No waiver by Seller of any breach or of any term or condition shall be deemed or construed as a waiver of any other or any succeeding breach of the same or any other term or condition. No failure to exercise, and no delay in exercising, any right, power, or remedy of Seller hereunder shall operate as a waiver thereof, nor shall a single or partial exercise of any right, power, or remedy preclude any further exercise thereof or the exercise of any other Seller right, power, or remedy. No right, title or interest hereunder may be assigned by Buyer, and no obligation of Buyer hereunder may be delegated, or transferred in any manner, without the prior written consent of Seller.
GOVERNING LAW AND VENUE: Without giving effect to any conflict of law rules, these Terms are governed by and construed and enforced in accordance with (i) if Buyer is located in any country other than Canada, the laws of the United States of America and the State of Georgia, including the Georgia Uniform Commercial Code, and (ii) if Buyer is located in Canada, the laws of the Province of Ontario and the Federal laws of Canada. Wherever possible, each term and condition herein is to be interpreted to be effective and valid under applicable law, but if any such term or condition is held to be illegal, invalid, or unenforceable by a court of competent jurisdiction, such term and condition is to be ineffective only to the extent of such prohibition and invalidity without invalidating the remainder of such term or condition or the remaining terms and conditions of these Terms. Any controversy or claim arising out of or relating to this contract or any actual or alleged breach thereof, which cannot be resolved amicably, shall be litigated solely in (i) state or federal courts located in the State of Georgia, USA, if Buyer is located in any country other than Canada, and (ii) in the provincial or federal courts located in Ontario, Canada, if Buyer is located in Canada. BUYER AND SELLER AGREE THAT ANY CLAIMS WILL BE ADJUDICATED ON AN INDIVIDUAL BASIS, AND EACH WAIVES THE RIGHT TO ASSERT ANY CLAIMS AS A REPRESENATIVE OF OR A PARTICIPANT IN ANY CLASS, COLLECTIVE, PAGA, OR OTHER JOINT ACTION.
MANDATORY ARBITRATION: Notwithstanding the foregoing, any controversy or claim between Buyer and Seller, including any claim based on or arising from an alleged tort, shall at the request of any party be determined by arbitration. The arbitration shall be conducted in the location selected by Seller under the rules of either the AAA or ICDR Canada as applicable. The arbitrator shall give effect to statutes of limitation in determining any claim. Any controversy concerning whether an issue is arbitrable shall be determined by the arbitrator. Judgment upon the arbitration award may be entered in any court having jurisdiction.
SEVERABILITY CLAUSE: In the event any provision or part of these Terms is found to be invalid or unenforceable, only that particular provision or part will be inoperative; the remaining provisions of these Terms shall be unaffected and enforceable.
Website Terms & Conditions of Use:
This Web site (the “Site”) is provided by Interface, Inc. and its affiliates (collectively, “Interface”). By using the Site, or sharing or downloading materials from the Site, you agree to abide by the terms and conditions set forth in this notice (the "Agreement"). If you do not agree to abide by these terms and conditions you are not permitted to use the Site, share materials located on the Site with others, or download materials from the Site.
LIMITED PERMISSION: Subject to the terms and conditions set forth in this Agreement, Interface grants you a non-exclusive, non-transferable, revocable, limited right to access, use and display this Site and the materials thereon. You agree not to interrupt or attempt to interrupt the operation of the Site in any way. Interface authorizes you to view, share and/or download the information at this Site ("Materials") only for (1) your personal, non-commercial use or (2) use in conducting business directly with Interface or one of its affiliated companies. Interface and/or third parties with whom Interface has entered into contractual arrangements retain all rights, interest and title in the Materials and copies of the Materials, and any use thereof is subject to the following restrictions: 1) you must retain, on all copies of the Materials downloaded and/or shared, any and all copyright and other proprietary notices contained in the Materials; 2) you may not modify the Materials in any way or reproduce or publicly display, perform, license, sublicense, distribute or otherwise use them for any public or commercial purpose; and 3) you must not transfer and/or share (via social media outlets or otherwise) the Materials to any other person unless you give them notice of, and they agree to accept, the obligations arising under these terms and conditions of use. You agree to abide by all additional restrictions displayed on the Site as it may be updated from time to time. This Site, including all Materials, is copyrighted and protected by worldwide copyright laws and treaty provisions. You agree to comply with all copyright laws worldwide in your use of this Site and to prevent any unauthorized copying or other reproduction of the Materials. Except for the limited use described above (which may be revoked at any time without notice), Interface does not grant any express or implied right to you under any patents, trademarks, copyrights or trade secret information.
DISCLAIMER: THE MATERIALS MAY CONTAIN INACCURACIES AND TYPOGRAPHICAL ERRORS. INTERFACE DOES NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE MATERIALS OR THE RELIABILITY OF ANY ADVICE, OPINION, STATEMENT OR OTHER INFORMATION DISPLAYED OR DISTRIBUTED THROUGH THE SITE. ANY RELIANCE ON ANY SUCH OPINION, ADVICE, STATEMENT, MEMORANDUM, OR INFORMATION SHALL BE AT YOUR SOLE RISK. INTERFACE RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO CORRECT ANY ERRORS OR OMISSIONS IN ANY PORTION OF THE SITE. INTERFACE MAY MAKE ANY OTHER CHANGES TO THE SITE, THE MATERIALS AND THE PRODUCTS, PROGRAMS, SERVICES OR PRICES (IF ANY) DESCRIBED IN THE SITE AT ANY TIME WITHOUT NOTICE.
THIS SITE, THE INFORMATION AND MATERIALS ON THE SITE, AND ANY SOFTWARE MADE AVAILABLE ON THE SITE, ARE PROVIDED "AS IS" WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
THIRD-PARTY SITES: As a convenience to you, Interface may provide, on this Site, links to Web sites operated by other entities. If you use these sites, you will leave this Site. If you decide to visit any linked site, you do so at your own risk and it is your responsibility to take all measures to guard against viruses or other destructive elements. Interface does not make any warranty or representation regarding, and does not endorse, any linked Web sites or the information appearing thereon or any of the products or services described thereon. Links do not imply that Interface or this Site sponsors, endorses, is affiliated or associated with, or is legally authorized to use any trademark, trade name, logo or copyright symbol displayed in or accessible through the links, or that any linked site is authorized to use any trademark, trade name, logo or copyright symbol of Interface or any of its affiliates.
INFORMATION PROVIDED BY YOU: Interface does not want you to, and you warrant that you will not, provide any proprietary ideas, concepts, or know-how through the Site. You agree that Interface is free to use any ideas, concepts or know-how that you or individuals acting on your behalf provide to Interface, and you grant to Interface an unrestricted, irrevocable, worldwide, royalty-free license to use, reproduce, display, publicly perform, transmit and distribute such ideas, concepts or know-how. You further recognize that Interface does not want you to, and you warrant that you shall not, provide any information or materials to either Interface that are defamatory, threatening, obscene, harassing, or otherwise unlawful, or that incorporate the proprietary material of another.
LIMITATION OF DAMAGES: IN NO EVENT SHALL INTERFACE OR ANY OF ITS AFFILIATES BE LIABLE TO ANY PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR PROGRAMS OR OTHER DATA ON YOUR INFORMATION HANDLING SYSTEM) THAT ARE RELATED TO THE USE OF, OR THE INABILITY TO USE, THE CONTENT, MATERIALS, AND FUNCTIONS OF THE SITE OR ANY LINKED WEB SITE, EVEN IF INTERFACE IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CHANGES: Interface reserves the right, at its sole discretion, to change, modify, add or remove any portion of this Agreement in whole or in part, at any time. Changes in this Agreement will be effective when such change is posted. Your continued use of the Site after any changes are posted will be considered acceptance of those changes.
Interface may terminate, change, suspend or discontinue any aspect of this Site, including the availability of any features of the Site, at any time. Interface may also impose limits on certain features and services or restrict your access to parts or the entire Site without notice or liability. Interface may terminate the authorization, rights and license given above and, upon such termination, you shall immediately destroy all Materials.
STATEMENT ON COLORS: Actual product colors may vary from colors shown on your monitor. Colors can be verified by ordering a sample from our Site. If you have any questions, please send an e-mail to email@example.com or telephone Customer Service at 1-800-637-6032.
INTERNATIONAL USERS AND CHOICE OF LAW: This Site is controlled, operated and administered by Interface from its offices within the United States of America. Interface makes no representation that Materials at this Site are appropriate or available for use at other locations outside of the United States and access to and the use or display of them from territories where their contents are illegal is prohibited. You may not use the Site or export the Materials in violation of U. S. export laws and regulations. If you access this Site from a location outside of the United States, you are responsible for compliance with all local laws. These Terms and Conditions of use shall be governed by the laws of the State of Georgia, USA, without giving effect to its conflict of laws provisions.
SCOPE OF AGREEMENT AND LIMITATION OF ACTIONS: This Agreement constitutes the entire agreement between Interface and you with respect to your use of the Site. If for any reason a court of competent jurisdiction finds any provision of the Agreement or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the Agreement, and the remainder of this Agreement shall continue in full force and effect. Any cause of action you may have with respect to your use of the Site must be commenced within one (1) year after the claim or cause of action arises.