Pin Point Lighting, LLC, Terms and Conditions of Sale
1. General Information
1.1 These terms shall apply to all quotations, sales and deliveries by Pin Point Lighting, LLC (“PPL”) unless otherwise agreed and confirmed in writing by PPL.
2. Quotations and Sales
2.1 Quotations are valid for thirty (30) calendar days unless otherwise stated.
2.2 PPL reserves the right to present Buyer with a sales contract for any one or more transactions. If PPL elects to proceed solely by acceptance of a purchase order from Buyer, PPL reserves the right to accept said purchase order. In such case, the terms and conditions set forth herein shall govern the transaction, unless otherwise expressly agreed in writing by PPL.
2.3 If the conditions relating to delivery time, quantity, price, payment terms, delivery by installments or other matters stated in PPL’s sales contract or acceptance of a purchase order vary from Buyer’s purchase order and Buyer does not accept such variations, Buyer must notify PPL in writing within five (5) business days after an order has been confirmed by PPL. Failing such written notice, Buyer shall be deemed to have accepted the terms and conditions stated in PPL’s sales contract or acceptance of purchase order, which shall constitute a binding commitment between the Parties.
2.4 If Buyer cancels an order more than five (5) business days after an order has been confirmed by PPL, Buyer shall pay PPL an indemnity equal to twenty percent (20%) of the order amount, without prejudice to PPL’s right to seek reimbursement equal to its actual losses.
3. Delivery, Transfer of Risk
3.1 All deliveries shall be Ex Works (Incoterms 2010) PPL’s shipping facility, unless otherwise agreed in writing.
3.2 Title to the products shall pass to Buyer after the price therefor has been paid in full to PPL. Buyer shall ensure that the products in its possession shall at all times be readily identifiable by PPL as PPL’s property on Buyer’s premises until Buyer has obtained title to the products. At PPL’s request, Buyer shall execute all documents and do all acts which may be necessary or desirable to enforce the retention of title by PPL in Buyer’s country.
3.3 Regardless of any retention of title by PPL, risk of loss passes to Buyer when the products are duly delivered to a carrier.
3.4 Products shall be delivered in PPL’s standard package with PPL’s standard labeling and markings.
4. Time of Delivery
4.1 The delivery time shall be designated for each quoted product. PPL will endeavor to estimate a reasonable delivery time, which delivery time shall be the target date, unless otherwise agreed in writing.
4.2 If a delay is due to postponement of delivery of materials or components by PPL suppliers, strike, lock-out, government order, delayed supply of raw materials, production supplies or any deliveries, currency restrictions, natural phenomena, obstacles to transport, war, uprising, unrest or blockage or any other form of force majeure not mentioned here, delivery may be postponed for as long as any such impediment to delivery continues to exist.
4.3 Buyer shall be entitled to cancel any purchase which has been delayed for causes referenced in section 4.2 if such a delay extends more than sixty (60) calendar days, provided Buyer gives written cancellation notice ten (10) calendar days in advance and PPL is not able to make the delivery with such ten-day period. Where there is a contract for the sale of goods to be delivered in installments, delay in delivery of any installment shall not entitle Buyer to reject one or more of the other installments whether or not previously delivered.
4.4 Buyer shall have no other remedies in connection with delivery delays other than the right to cancel the order pursuant to section 4.3.
5. Invoicing – Payment – Default
5.1 PPL shall invoice Buyer, and Buyer shall pay to PPL, the price of the Products in US Dollars ($ or “USD”) on a shipment per shipment basis.
5.2 Buyer shall pay PPL’s invoices within thirty (30) days as from the date of PPL’s invoice without any deduction, set-off or reduction whatsoever, except as may be agreed upon by PPL in writing.
5.3 If payment is delayed, Buyer shall owe PPL default interest from the day on which payment became due at a rate of 1.5% per month or any part thereof. If such interest rate is contrary to applicable law, PPL shall be entitled to the highest interest rate allowed under applicable law. The extension of the payment term shall in no event result in a novation. PPL also may apply a surcharge of ten percent (10%) on the overdue amount, with a minimum of Fifty Dollars ($50), to compensate PPL for increased administration costs and expenses.
5.4 Non-payment of an invoice on the due date shall without summons automatically nullify the payment terms and any extension of the period which PPL may have granted for payment of deliveries already effected, and shall render all invoices immediately payable. Moreover, in such circumstances, and/or in the event Buyer becomes insolvent or Buyer’s credit becomes impaired in the reasonable opinion of PPL, PPL shall have the right to change with immediate effect the payment conditions then in effect to “cash in advance” or to request Buyer to furnish adequate security with no formalities other than a notification by registered letter. If Buyer fails to comply with PPL’s payment terms or is unable to provide satisfactory security, PPL may, at its option, suspend further deliveries or cancel all current orders for Products until full payment or until satisfactory security has been received by PPL. Any claim by Buyer shall not entitle Buyer to delay or withhold payment of the overdue amounts.
5.5 Buyer agrees to pay PPL a service fee of $50 on account of any check dishonored for any reason by Buyer’s bank.
5.6 Monies from Buyer received by PPL may be applied toward payment of any debt owing by Buyer, at PPL’s sole discretion, notwithstanding any instructions to the contrary from Buyer.
5.7 To secure all of Buyer’s obligations to PPL, Buyer grants to PPL a security interest in all Products purchased from PPL (the “Collateral”) together with any and all proceeds thereof. Buyer hereby appoints PPL as Buyer’s attorney in fact to do all acts and things, including the execution and filing of financing statements, that PPL may deem necessary to perfect the security interest created hereby and to protect the Collateral. Buyer will pay as part of the debt hereby secured, all amounts, including reasonable attorneys’ fees, incurred by PPL in maintaining, repairing and otherwise protecting the value of the Collateral and in taking possession of, disposing of or preserving the Collateral upon any default of any of Buyer’s obligations to PPL.
5.8 Buyer shall pay all of PPL’s reasonable expenses incurred to collect any debts or payment obligations owed by Buyer to PPL, including, without limitation, reasonable attorneys’ fees and expenses, whether incurred with or without the commencement of litigation, arbitration, or administrative proceeding, and including any appellate or bankruptcy proceedings.
6.1 Any taxes, duties, excises and/or other charges, including without limitation VAT, now or henceforth levied in connection with the sale of the Products shall be borne by Buyer, except for those taxes and duties which are payable by PPL prior to the delivery of the Products pursuant to the agreed upon Incoterm.
7.1 Buyer may request changes to any order at any time prior to shipment of the order by submitting a written change order (“Change Order”) to PPL. PPL may accept or reject a Change Order in its sole discretion, but will endeavor to accommodate requested changes in good faith. Change Orders will be binding upon PPL only when signed by an authorized representative of PPL, and only once an equitable price change has been made.
7.2 In the event that delivery dates are moved six (6) months past the original agreed upon date, a 5% per month warehousing fee will be assessed.
8. Return Policy
8.1 PPL will replace or issue credit for Products that fail under normal conditions in accordance with PPL’s following warranty provisions. PPL has the right to refuse warranty on items that have been subject to abuse or misapplication by Buyer.
8.2 All returns must be accompanied by a Return Authorization. Any Products returned without a Return Authorization will be returned to the sender. Please contact PPL to request a Return Authorization.
8.3 In those circumstances where PPL has authorized the return of Products in a written Return Authorization, shipping charges relating to the return of Products are to be prepaid by Buyer, unless otherwise authorized by PPL on PPL’s Return Authorization. All returns will incur a 15% restocking fee.
8.4 Products that are the subject of a Return Authorization must be returned to PPL within thirty (30) calendar days of issue date of the Return Authorization, or the Return Authorization will be considered null and void.
8.5 Special ordered and non-stock items are non-returnable and order non-cancelable.
9. Limited Warranty
9.1 Warranties shall be for the term set forth herein, unless otherwise specified in a proposal or quote issued by PPL.
9.2 Hardware: PPL warrants that upon delivery hereunder the Products shall (i) conform to their specifications in effect at the date of delivery and (ii) be free from defects in material and workmanship under normal use. Notwithstanding the foregoing, PPL makes no warranties with respect to such Hardware that is expressly provided to Buyer on an “as-is” basis.
9.3 Software: PPL warrants that software written by PPL shall perform substantially in accordance with the specifications in effect at the date of delivery. Software is inherently susceptible to bugs and errors. PPL makes no warranties with respect to the software, which is provided to Buyer on an “as-is” basis and does not warrant uninterrupted or error-free operation of the Products.
9.4 The Warranty Period for Hardware shall be one (1) year commencing on the date of delivery, or, if applicable, the date of acceptance of the Product by Buyer. The Warranty Period for Software shall be ninety (90) days commencing on the date of delivery, or, if applicable, the date of acceptance of the Product by Buyer. After expiration of the applicable warranty period, PPL and Buyer shall, at Buyer’s request, negotiate in good faith the scope and mutually acceptable terms and conditions of after sales services, if any, that may be provided by PPL.
9.5 The warranties shall apply to the extent the Products or any parts thereof have:
(a) been transported and stored at all times in the original packaging in the conditions as specified by PPL (such as covered and secure location, minimum temperature, maximum humidity) or, in absence thereof, at least in conditions consistent with generally accepted practice for this type of product;
(b) been handled at all times in accordance with PPL’s instructions or, in absence thereof, at least with the care and caution consistent with generally accepted practice for this type of product;
(c) been installed strictly in accordance with the instructions and directions given by PPL (if and to the extent the Product has not been installed by PPL or its authorized subcontractors);
(d) not been subject to any unauthorized access, alteration, modification or repair attempts thereto;
(e) been at all times “normally used” for the specified purpose and operated and maintained in strict accordance with the operating and maintenance instructions set forth in the operating and maintenance manual of the Product, or in the absence thereof, at least with intervals and in a manner consistent with generally accepted practice for this type of product, and shall not have been otherwise misused, abused or damaged. For the purpose hereof, “normally used” shall mean a regular, ordinary and routine usage of the Product in question as intended and/or as recommended by PPL; and
(f) not been connected to or used in combination with other equipment, products or systems (hardware and/or software), which are not compatible with the specifications of the Product in question.
9.6 In no event shall PPL be liable, whether during or after the expiration of the Warranty Period for any defects, failures, loss of or damage to the Products or any part thereof which are caused by or resulting from (a) normal wear and tear, or (b) any force majeure event, or (c) Buyer’s use or operation of the Product prior to the completion of PPL’s acceptance test(s) for the Product, or (d) Buyer’s use of the Product outside the specifications contained in the user documentation, or (e) the use of spare parts not supplied by PPL, or (f) any deviations from the procedures specified by PPL, or (g) any action or negligence on the part of Buyer or any third party (including without limitation Buyer’s employees, customers, agents, carriers and contractors). In such case the repair or replacement of the Product or any part thereof shall be at Buyer’s sole option and cost.
9.7 Any Product or part thereof which is entirely manufactured by third parties is subject to the original manufacturer’s warranty, and no separate warranty is given in respect thereof by PPL.
9.8 Any claim by Buyer under the Warranties must be notified to PPL in writing within ten (10) days from the date the defect or failure has been discovered or noticed for the first time.
9.9 For Hardware: If during the Warranty Period a Product, or any part thereof, fails to meet any of the Warranties herein, then, upon Buyer’s request, PPL shall, at its sole option and cost, and without undue delay, either: (a) repair or correct the Product or part; or (b) replace the Product or supply part(s) or component(s). A replacement part shall be at least functionally equivalent to the original part. The repair or replacement under the Warranties covers the cost of material and labor. The replaced Product, parts and/or components shall become property of PPL and shall, at PPL’s request, be returned by Buyer to PPL.
9.10 For Software: PPL’s sole obligation shall be to rectify substantial malfunctions of the software (to the extent technically reasonably possible) by amending the software or supplying an alternative version of the software.
9.11 The repair or correction of defective Product or part shall be carried out at PPL’s repair facility, unless otherwise agreed by PPL. Returns of Products or parts for repair require a Return Authorization as set out in Article 8.
9.12 The remedies specified in this Article 9 shall constitute Buyer’s sole and exclusive remedy and PPL’s sole and exclusive liability for PPL’s breach of the Warranties hereunder.
9.13 PPL neither makes nor intends to make any other warranties or representations, express or implied. PPL expressly excludes and disclaims any and all warranties which may be implied or otherwise created by operation of law, including without limitation, all implied warranties of uninterrupted or error-free use or operation, and merchantability and fitness for a particular purpose.
10.1 Except for claims for breach of the Warranties, Buyer’s failure to give notice to PPL of any claim (including without limitation claims for delayed delivery or non-delivery with regard to the Products delivered hereunder) within ten (10) days after delivery of a Product shall be an unqualified acceptance of such Product and a waiver by Buyer of all claims with respect thereto.
10.2 Buyer is responsible for making any claim for loss of and/or transport damages to Products against the carrier immediately upon delivery, and notifying PPL accordingly.
10.3 Contested Products must be kept at PPL’s disposal and access, and can only be returned to PPL with a Return Authorization issued by PPL as set out in Article 8.
11. Limitation of Liability
11.1 PPL’s exclusive liability and Buyer’s exclusive remedy for any and all claims as to the Product delivered or for delayed delivery or non-delivery thereof, whether arising out of contract, warranty, negligence, PPL’s failure to comply with laws and regulations, strict liability or otherwise, shall be limited to the price of the Product in relation to which the claim is made, or at PPL’s option, the replacement thereof.
11.2 Buyer represents and warrants that Buyer has sufficient personal knowledge and expertise in the use of the Products and parts being purchased from PPL and that Buyer is NOT relying on the expertise of PPL in the use of such Products and/or parts in the purchase of such Products and/or parts from PPL.
11.3 In no event shall either party be liable for special, incidental, punitive, indirect or consequential damages (including without limitation loss of profits, business, revenue, goodwill, or anticipated savings), whether or not caused or resulting from the negligence or willful misconduct of such party.
12. Third Party Rights
12.1 PPL shall hold harmless and indemnify Buyer from and against direct damages, losses and expenses arising from infringement or alleged infringement of any patent, trademark or copyright of a third party by a Product, and defend and settle at PPL’s sole expense any claim, action, suit or proceeding brought against Buyer, provided that (a) PPL is promptly notified by Buyer in writing after a claim has been asserted against Buyer or the commencement of any claim, action, suit or proceeding, and (b) PPL shall assume sole control of the defense and any settlement negotiations related to any claim, action, suit or proceeding, and (c) Buyer shall not make any representation or concession, negotiate, settle or compromise any claim, action, suit or proceeding without the prior written consent of PPL, and (d) Buyer, at its cost, shall cooperate with PPL and provide assistance and support, as may reasonably be required by PPL, in connection with the defense and any settlement negotiations related to any claim, action, suit or proceeding.
12.2 PPL shall have no indemnity obligation for any Product, or any portion thereof, (a) that is based on specifications, drawings, models or other data furnished by Buyer, or (b) that is not provided by PPL, or (c) that is modified by a party other than PPL and not at PPL’s direction, or (d) to the extent Buyer continues the allegedly infringing activity after having been provided modifications that avoid the alleged infringement, or (e) where the use of the Product, or the combination thereof with other products, processes or materials, or the distribution thereof rather than the Product itself is the primary cause of an alleged infringement.
12.3 In case it has been determined by a finally awarded judgment that PPL has infringed or misappropriated such third party rights, or earlier at PPL’s discretion, PPL may, at its option and cost, (a) modify the Product in such a way that it shall not infringe upon or misappropriate the rights of the third party, or (b) obtain for Buyer a license or other right to use the Product, or (c) replace the Product with a non-infringing product. If the foregoing options are not available on commercially reasonable terms and conditions, PPL may require the return of the Product and refund to Buyer amounts paid for the Product minus a reasonable allowance for the period the Buyer has used the Product.
12.4 The remedies set forth in this Article 12 shall constitute Buyer’s sole and exclusive remedy and PPL’s sole and exclusive liability for a third party claim that the Product infringes or misappropriates any intellectual property right of a third party.
13. Intellectual Property Rights
13.1 Except as otherwise agreed by PPL, Buyer shall not disclose any proprietary or confidential information of PPL.
13.2 Any patents, trademarks, copyrights and/or any other intellectual property rights, and/or any proprietary or confidential information related to the Products, whether existing prior to the date of Buyer’s order or developed as of the date thereof, shall remain the property of PPL or its licensor, as the case may be, and nothing herein shall be construed as conferring on the Buyer by implication or otherwise, any right, title or interest in, or any license under an intellectual property right, confidential information or other trade secret. PPL shall not enforce its intellectual property rights against Buyer, its successors or assigns, who are operating the Products as authorized hereunder.
13.3 The Software supplied by PPL to Buyer hereunder shall remain the property of PPL or the licensor at all times. Buyer shall at all times comply with the terms and conditions of the (sub)license imposed by PPL or the licensor. PPL hereby grants to Buyer a non-exclusive (sub) license to use the Software solely for the purpose of operating the Products delivered hereunder. PPL hereby grants to Buyer the right to assign the software user license referred to herein to the end-user to whom Buyer resells the Products.
14. Export Controls
14.1 Buyer acknowledges that Buyer is solely responsible for compliance with United States export laws, regulations and controls, with which Buyer shall comply. Buyer will not export, re-export, transfer, divert or disclose, directly or indirectly, the Products, or any information about the Products, except as authorized under United States law, and not otherwise in violation of these Terms and Conditions.
14.2 Compliance with federal, state, and local environmental laws and regulations in connection with use, storage or disposal of Products is solely the responsibility of Buyer.
15. Choice of Law and Jurisdiction
15.1 All sales are subject to Pennsylvania law without recourse to its conflict of law principles.
15.2 Any dispute between PPL and Buyer shall be settled by the courts of the state of Pennsylvania, or at PPL’s option, by the courts of the place where Buyer has its registered office, and without prejudice to the enforcement of any judgment or order thereof in any other jurisdiction. The Parties will submit to the exclusive jurisdiction of the state courts and federal court in Pennsylvania, and agree that proper venue for any suit or action arising out of these Terms and Conditions shall be in Delaware County, Pennsylvania.
16.1 Neither Party hereto may, without prior written consent of the other, assign or otherwise transfer to a third party the benefits or obligations arising from the contract or in connection therewith, in whole or in part, except that PPL may assign, without Buyer’s consent, the contract to an affiliate of PPL or to a third party in connection with the sale of the business of PPL. The contract shall be binding and shall inure to the benefit of the legal successors of the Parties hereto.
17. General Other Terms
17.1 The invalidity, unenforceability or illegality of any term, condition, or stipulation in these Terms and Conditions shall not affect the validity, enforceability or legality of the remaining terms, conditions and stipulations of these Terms and Conditions.
17.2 Notwithstanding anything to the contrary contained in these Terms and Conditions, the title to the Products shall not pass to Buyer until such time as PPL has received full payment of the purchase price for all goods sold or to be sold by PPL to Buyer for which payment is then due. Until such time as title in the Products passes to Buyer, Buyer shall hold the Products as PPL’s fiduciary agent and bailee and shall keep such goods separate from those of Buyer and third parties and properly stored, protected and insured and identified as PPL’s property; provided however, that Buyer may sell or use the Products in the ordinary course of its business. Until such time as the title in the Products passes to Buyer (and provided such Products have not been resold), PPL may at any time require Buyer to return the Products to PPL. Buyer shall not be entitled to pledge or provide a security interest in the goods, which remain the property of PPL, to any third party, but if Buyer does so, all amounts Buyer owes to PPL shall (without limiting any other rights or remedy of PPL) become immediately due and payable.
17.3 Nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, terrorism, act of God, governmental acts, failure of suppliers or any other reasons beyond the reasonable control of the non-performing party.
17.4 Any required or permitted notices hereunder must be given in writing at the registered address of a Party, or to such other address as either Party may notify to the other Party by written notice in the manner contemplated herein. Delivery of written notice shall be by one of the following methods: hand delivery, electronic mail with telephone confirmation of receipt, or commercial courier. Notices will be deemed given on the date received.