GENERAL TERMS AND CONDITIONS OF SALE
THE FOLLOWING TERMS AND CONDITIONS GOVERN ALL SALES OF PRODUCTS ("PRODUCTS") BY PRECISE DIRECTION, LLC, OMNIZONE, APEX FIXTURE AND/OR THEIR RESPECTIVE AFFILIATES AND RELATED ENTITIES (COLLECTIVELY “SELLER”) TO ALL PURCHASERS OF PRODUCTS (EACH A “CUSTOMER”)
1. Sales of Products. All sales of Products are subject to and incorporate by reference all of the provisions of these General Terms and Conditions of Sale (the “Terms”). All contrary provisions contained in any order or purchase by CUSTOMER are rejected, objectionable and void. All quoted prices by SELLER (each a “Quote”) will be valid for fifteen (15) calendar days from the date of such Quote, if applicable, and thereafter at the prices in effect at the time of purchase. All quoted prices and each purchase or order placed by CUSTOMER are subject to the approval of SELLER’s credit department. These Terms, together with any Quote and any invoice for Products issued by SELLER (each an “Invoice”), constitutes the entire agreement between SELLER and CUSTOMER for the purchase and sale of Products (collectively, the “Agreement”). Any term or condition stated by CUSTOMER on CUSTOMER’s purchase order(s) or otherwise, or in otherwise acknowledging or placing an order, or in making a purchase, is deemed by SELLER to be a material alteration of the Agreement and is hereby rejected.
2. Contract Price. CUSTOMER shall pay SELLER the full contract price set forth in the Agreement for all Product purchases in United States Dollars (US$), unless otherwise expressly agreed in writing by SELLER in the Quote or Invoice, and in immediately available funds. For all custom orders, CUSTOMER shall be required to make a non-refundable deposit of at least 30% of the total contract price at the time of placing the order, which non-refundable deposit shall be deemed fully earned by SELLER upon receipt. The remaining balance of the contract price for custom orders must be paid by CUSTOMER in full prior to shipment. All on-line orders and purchases shall be paid in full by CUSTOMER at the time of placing the order and prior to shipment. For all other Product purchases, CUSTOMER shall make payment on all Invoices in accordance with the Payment Terms stated on the face of the applicable Quote and Invoice, or, if no Payment Terms appear on the face of the applicable Quote and Invoice, net thirty (30) days from the date of the Invoice. Late payments on all orders shall be subject to interest at the rate of 1.5% per month on the unpaid balance until such time as payment is received by SELLER, plus any attorneys’ fees incurred by SELLER associated with collection of such payment. This Section 2 does not prejudice SELLER’s right to cancel under Section 4.
3. Purchase Money Security Interest/Financing Statements. As security for payment of any amount due under this Agreement between CUSTOMER and SELLER, SELLER shall have the right to retain possession of, and shall have a security interest in, all of CUSTOMER’s property in SELLER’s possession or control, and shall have a purchase money security interest and right of possession of Product already shipped (including any proceeds thereof), until payment in full of all amounts due under this Agreement. CUSTOMER agrees to execute any financing statements or provide any documents to SELLER to perfect such security interest, and consents to SELLER’s signing and filing of such documents against CUSTOMER, and appoints SELLER as its attorney-in-fact, coupled with interest, to sign, file and take any and all other actions to perfect, enforce and collect upon SELLER’s security interests and rights in the Products. If SELLER brings any action to enforce its rights hereunder or to collect any amounts due from CUSTOMER, it shall be entitled to recover its costs and expenses, including reasonable attorneys’ fees and court and arbitration costs, as applicable, from CUSTOMER.
4. Cancellations. SELLER reserves the right to require payment for the Product in advance, or satisfactory security. If CUSTOMER fails to make payment in accordance with the terms of this Agreement, or any collateral agreement, or fails to comply with any provision hereof, SELLER may, at its option (and in addition to other remedies, that may be available at law or in equity), cancel any unshipped portion of this order, with CUSTOMER remaining liable for all unpaid amounts. Product cannot be returned and orders, once accepted, cannot be canceled without SELLER's prior written consent. If SELLER accepts a CUSTOMER request to cancel an order, CUSTOMER shall be responsible for all costs and expenses incurred by SELLER prior to cancellation. In addition, if CUSTOMER delays delivery for more than thirty (30) days after the originally-scheduled delivery date, CUSTOMER shall be liable for a storage fee equal to 1.5% of the outstanding balance due per month.
5. Taxes. All taxes and excises of any nature whatsoever (excluding net income tax) now or hereafter levied by governmental authority, whether federal, state, or local, upon the sale, use, or transportation of any Product covered hereby, shall be paid and borne by CUSTOMER and added to the price of the Product. CUSTOMER is required to provide SELLER with an exempt use certificate for state sales taxes or at SELLER’s option SELLER shall collect or the CUSTOMER shall directly pay state sales tax and shall provide SELLER with proof of payment of taxes.
6. Shipping and Title. Unless otherwise provided on the face of the Quote, the Product shall be shipped ex-works Origin (Incoterms 2000). Title of the Product shall pass to CUSTOMER upon delivery thereof to the carrier. Delivery to carrier shall constitute delivery to CUSTOMER, and thereafter the Product shall be at CUSTOMER's risk. Dates of all planned shipments are estimated and not guaranteed. SELLER assumes no responsibility for damage or loss to the Products once placed with the carrier for delivery to CUSTOMER. In the absence of specific instructions, SELLER will select the carrier and ship freight prepaid and added to the price of the Product. PRECISE DIRECTION reserves the right to charge for any special routing, packing, labeling, handling or insurance requested by CUSTOMER and agreed to by SELLER. SELLER will not be deemed responsible for any liability in connection with any shipment because of the selection of a carrier or failure to obtain insurance.
7. Acceptance of Product. CUSTOMER shall promptly inspect the Product upon receipt. CUSTOMER shall be deemed to have accepted the Product unless CUSTOMER notifies SELLER within fifteen (15) days of delivery of any non-conformance of the Product to the agreed specifications. SELLER shall have the right to repair or replace, at its option, the non-conforming Product within a reasonable time without being in breach of this Agreement and without incurring any liability, and repair or replacement of a Product for non-conformance shall be SELLER’s sole obligation and CUSTOMER’s sole and exclusive remedy.
8. Component Specifications. SELLER reserves the right without notice to CUSTOMER to change the specifications of individual components of Product provided the performance of the new item(s) is equivalent to or better than that of the items identified in the Quote.
9. Disclaimer of Warranties. SELLER DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED. WITHOUT LIMITATION, SELLER HEREBY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. ALL PRODUCTS ARE SOLD “AS-IS” “WHERE-IS” WITH ALL FAULTS. ALL SALES ARE FINAL.
10. No Consequential Damages and Limitation of Liability. SELLER SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES TO THE ORIGINAL PURCHASER OR ANYONE ELSE. LOSS OF USE, LOSS OF PROFITS, LOSS OF PRODUCTION, AND LOSS OF REVENUES ARE THEREFORE SPECIFICALLY BUT WITHOUT LIMITATION EXCLUDED. SELLER SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR DAMAGE OR INJURY TO PERSONS OR PROPERTY, OR FOR OTHER LOSS OR INJURY RESULTING FROM ANY CAUSE WHATSOEVER ARISING OUT OF OR RELATED TO THE PRODUCTS INCLUDING, WITHOUT LIMITATION, ANY DEFECTS IN THE PRODUCTS. UNDER NO CIRCUMSTANCES SHALL SELLER’S MAXIMUM LIABILITY UNDER ANY WARRANTY, EXPRESS, IMPLIED, OR STATUTORY, OR FOR ANY MANUFACTURING OR DESIGN DEFECTS, ANY BREACH OF WARRANTY, OR ANY OTHER CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID BY CUSTOMER TO SELLER FOR THE PARTICULAR PRODUCT GIVING RISE TO THE CLAIM. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THIS AGREEMENT AND THE PRODUCTS WOULD NOT BE SOLD TO CUSTOMER ABSENT SUCH LIMITATIONS. ANY CLAIMS OR ACTIONS AGAINST SELLER ARISING OUT OF ANY PRODUCTS SOLD HEREUNDER MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.
11. Proprietary Information and Technology Rights. This Agreement does not convey any license, express or implied, under any patent, copyright, trade secret, or other proprietary right with respect to such patents, copyrights, trade secrets, and other proprietary rights. Any documentation, data, or information of any kind (“Confidential Information”) supplied by SELLER to CUSTOMER shall be deemed proprietary to SELLER and treated as confidential by CUSTOMER. SELLER retains for itself all proprietary rights in and to all Confidential Information. CUSTOMER shall not disclose, without SELLER’s written consent, any Confidential Information to any other person, or use Confidential Information for any purpose other than performing under this Agreement. CUSTOMER shall return all Confidential Information, together with all copies thereof, to SELLER at SELLER’s request. The obligations under this paragraph shall survive the cancellation, termination, or completion of this Agreement. SELLER may, at its sole option, require CUSTOMER to execute a separate confidentiality agreement acceptable to SELLER as a condition to providing any documentation or data which it considers proprietary or confidential. All Products, information, and technology produced, conceived, or otherwise developed by or for SELLER, or as a result of technology furnished by SELLER, shall be the sole property of SELLER, and CUSTOMER shall have no ownership or other rights in such property. CUSTOMER agrees to use such Product, information, and technology only in connection with Products or services furnished by SELLER and otherwise to retain them as confidential in accordance herewith. CUSTOMER, at its cost, hereby assigns to SELLER all right, title and interest in all inventions, trade secrets, patents, mask works, copyrights, trademarks, and other intellectual property developed by or for SELLER in connection with the conception, design, development, or manufacture of Products using Confidential Information and shall fully cooperate with and assist SELLER in perfecting such rights. SELLER makes no representation or warranty as to whether the Products provided hereunder infringe any third party intellectual property rights. SELLER shall have no liability for any actual or alleged infringement arising out of work performed or Products delivered by SELLER in accordance with specifications furnished by CUSTOMER.
12. Termination by SELLER. SELLER may terminate this Agreement if CUSTOMER (i) fails to pay any amount payable to SELLER after it becomes due under this Agreement, (ii) is insolvent, adjudged bankrupt or makes a general assignment for the benefit of its creditors, or (iii) otherwise commits a material breach of any provision under this Agreement.
13. Survival. The Terms shall survive any termination of this Agreement.
14. Notice of Labor Disputes. Whenever an actual or potential labor dispute delays, or threatens to delay the timely performance of this order, SELLER shall immediately notify CUSTOMER in writing of all relevant information with respect to such dispute.
15. Arbitration. Except in the event of CUSTOMER’s failure to make timely payments hereunder, all disputes that may arise between the parties under or in connection with this Agreement, shall be submitted (together with any counterclaims) to final and binding arbitration heard by a single arbitrator in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association and be conducted in Providence, Rhode Island. The prevailing party of any arbitration, action, or legal proceeding shall be entitled to receive from the other party, in addition to any other relief that may be granted, its costs and expenses incurred, including reasonable attorneys’ fees and court and arbitration costs, as applicable.
16. Governing Law. This Agreement shall be governed by the laws of the State of Rhode Island without reference to conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. All disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of and venue in the state and federal courts located in Providence, Rhode Island. The parties consent to the personal and exclusive jurisdiction and venue of these courts.
17. No Waiver. Any waiver of any breach of any term or condition of this Agreement shall not operate as a waiver of any other breach of such term or condition or of any other term or condition of this Agreement.
18. Severability. If any provision of this Agreement shall be held to be invalid or unenforceable, such provision shall be ineffective to the extent of such invalidity or unenforceability without invalidating the remaining provisions of this Agreement.
19. Headings. The headings used in this Agreement are included for convenience only and are not to be used in the interpretation of any provision of this Agreement.
20. Notices. All notices, demands, or consents required or permitted under this Agreement shall be in writing. Notice shall be considered effective on the earlier of actual receipt or the day following transmission if sent by facsimile followed by written confirmation by registered overnight carrier (e.g., Federal Express) or certified United States mail. Notice shall be sent to the attention of the current business contact and the “legal department”. Parties may change their address for notice purposes by giving notice of such change, provided that such notice is effective only on receipt.
21. Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
22. Advice of Counsel. Each party acknowledges that, in executing this Agreement, such party has had the opportunity to seek the advice of independent legal counsel, and has read and understood all of the terms and provisions of this Agreement. This Agreement shall not be construed against any party by reason of the drafting or preparation hereof.
23. Force Majeure. SELLER shall not be responsible for any failure to achieve a delivery date or other performance obligation due to events that are outside of SELLER’s reasonable control, including without limitation: (a) fires, floods, or other natural disasters or casualties, or acts of God; (b) wars, riots, civil commotion, embargoes, governmental regulations, or martial law; (c) inability to obtain raw materials or subcomponents from SELLER’s usual sources of supply; (d) transportation shortages or delays; (e) strikes or other labor troubles; and (f) CUSTOMER’s failure to cooperate or otherwise perform its obligations in connection with this Agreement.
24. Allocation. In the event SELLER is unable to supply the total requirements of its customers, SELLER may allocate its available supply among its customers in a manner deemed by SELLER to be fair and equitable without liability for any failure of performance which may result therefrom.
25. Entire Agreement. This Agreement constitutes the sole and entire agreement between the parties, and supersedes all prior oral or written agreements, commitments, representations, or understandings with respect thereto. No other document or amendment of this Agreement shall be part of this Agreement, unless in writing and signed by the parties’ authorized representatives. THESE GENERAL TERMS AND CONDITIONS OF SALE ARE A MATERIAL AND INTEGRAL PART OF ANY PURCHASE CONTRACT BETWEEN CUSTOMER AND SELLER. THE TERMS OF THIS DOCUMENT GOVERN AND CONTROL ANY TRANSACTION BETWEEN CUSTOMER AND SELLER NOTWITHSTANDING THE USE OF CUSTOMER’S PURCHASE ORDER AS AN ACCOMMODATION.
PRECISE DIRECTION TERMS 2017