PLURITEC STANDARD TERMS & CONDITIONS OF SALE
1. GENERAL
The following terms and conditions (the “Standard Terms and Conditions”) shall apply to all sales of Pluritec S.r.l. and its subsidiaries (referred to as the “Supplier” from this point forward) in relation to the sales, repair, maintenance and any other services provided by Supplier to its customers (“Customer”) on its Products.
2. OFFER OF SALE.
The terms and conditions found on the quotation and those provided below (“Terms”) hereby constitute an offer for sale of Products. Unless otherwise provided in a quotation, offers are available for acceptance for a period of 30 days from the date of this offer. An order by Customer shall constitute an acceptance of these terms and conditions of sale. The accompanying quotation comprises the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Customer's general terms and conditions of purchase regardless whether or when Customer has submitted its purchase order or such terms. Fulfilment of Customer's order does not constitute acceptance of any of Customer's terms and conditions and does not serve to modify or amend these Terms. Without limiting the foregoing, if Customer’s order is received before receipt of any quotation of Supplier or other offer of Supplier or is otherwise considered an offer under applicable law, Supplier hereby expressly conditions acceptance of the purchase order on Customer’s acceptance of these terms.
3. PURCHASE ORDERS.
Purchase orders may be placed by Customer in any commercially reasonable manner that Customer and Supplier determine is appropriate, including facsimile or electronic transmission. The purchase order will indicate the specific Products, specifications related thereto, quantity, price, total purchase price, shipping instructions, requested delivery dates, "bill to" and "ship to" addresses, tax exempt certifications, if applicable, and any other special instructions. Supplier reserves the right to correct clerical errors in any quotation or Purchaser Order referencing a quotation containing such errors.
4. PRICE, TAXES AND OTHER CHARGES.
If not otherwise specified in the “Quotation or Offer of Sales”, all prices are in US dollars. Sales Tax will be charged on all Products if a tax exemption certificate is not submitted with the purchase order. In addition to payment of the price of the Products, the Customer agrees to pay Supplier, either as included on the original invoice for the Products or as may be subsequently invoiced, for use, excise or any other taxes, import duties or assessments paid or required to be paid by Supplier with respect to the order. Supplier is entitled to retain any export duty drawbacks if Supplier is the exporter of record.
5. RISK OF LOSS, INSURANCE AND GRANT OF SECURITY INTEREST TO SUPPLIER.
a) Risk of loss or damage and insurance responsibilities pass to Customer upon delivery to carrier. Although risk of loss or damage passes, title to all software and firmware shall remain with Supplier or its licensors.
b) Customer hereby grants, and Supplier retains a security interest in the Products until payment, in full, has been received by Supplier for such Products delivered and services performed. Customer grants Supplier the right to perfect its security interest by filing a UCC Financing Statement or by other filings, registrations or notices as may be required in Supplier’s sole discretion.
6. SHIPMENT AND DELIVERY.
a) Unless otherwise indicated on Supplier’s quotation, shipments are EXW (Ex Works - Italy) Supplier’s factory or premises as indicated in the quotation. EXW is in accordance with International Chamber of Commerce Incoterms 2010. In the absence of specific instructions from Customer, Supplier may select the carrier and shipping route. Supplier will invoice Customer for applicable freight and handling charges.
b) In the absence of express written agreement to a specific delivery date, delivery schedule and delivery dates are as determined by the lead time in Supplier’s quotation, the date of Supplier’s acknowledgment of Customer’s Purchaser Order, the receipt of the down payment and the information and approvals necessary to proceed with design and manufacture. Delivery extension in response to a Customer request will be subject to a 1½% per month delivery extension surcharge.
7. INSTALLATION
a) If installation is included in the quotation or Purchase Order, Supplier shall be obligated only to provide such equipment as is specified in the quotation. Customer is responsible for preparing the site for installation according to Supplier’s instructions, including, among other things, providing electric power hook-up, air supply, if required, or other special equipment as instructed by Supplier.
b) Customer shall pay Supplier any costs resulting from Customer being unprepared on the agreed date for installation of the Products, including, without limitation, the delivery extension surcharge for a minimum of one month or, if greater, the cost of storage of the Products, cancelation fees to installation contractors, if any, or time lost by installation technicians.
c) Customer shall be responsibility to prepare any material required for on-site testing and training such as printed circuits boards built within the machine specifications.
d) Customer shall pay Supplier any costs resulting from Customer being unprepared on the agreed date for installation or training of the Products.
Standard Supplier service fee will apply.
8. CANCELLATION AND RETURN.
a) Cancellations for standard Products customarily kept in inventory (spare parts) can be made only by written request, followed by our written consent and upon terms that will indemnify us against loss. Cancellations for standard Products may, in Supplier’s sole discretion, be accepted up to thirty (30) days before scheduled shipping date. For cancellations made and accepted within thirty (30) days of the scheduled shipping date, Customer agrees to pay liquidated damages of 20% of contract price for cancellation of a contract for standard Products, if such cancellation is accepted by Supplier in accordance with this paragraph a). Under no circumstances may Customer cancel an order after shipment.
b) The Customer may not cancel a contract for systems (machines), special Products and other materials not customarily carried in stock by Supplier, or for quantities in excess of the quantity that Supplier customarily carries in stock. Liquidated damages for breach of this provision shall be one and-a-half times our costs (including material cost and labor) at time of cancellation. All partially completed work, shall, upon payment by the Customer, become the property of the Customer and will be shipped to the Customer in an “as is” condition, EXW Supplier’s factory or premises.
c) Returns must be authorized by Supplier. If the return is accepted and authorized by Supplier, return Product is subject to a 10% restocking fee unless the Product is deemed by Supplier to be defective in material and/or workmanship. Additional fees may be imposed, at Supplier’s option, for any merchandise returned damaged, incomplete or not in the original packaging. All refunds will be made in the form of a return credit. Special order, custom or nonstandard assembled Products are non-returnable.
9. PAYMENT TERMS.
a) Payment Requirements. All Payments must be made in U.S. dollars by check, wire transfer or credit card. For new customer standard Product first order terms are 100% before shipment, for recurring customer orders less than US$10,000, upon approved credit, terms are net 30 days from date of invoice. For standard product orders greater than US$10,000, upon approved credit, terms are 40% down payment, 50% at shipment and 10% net 30 days from date of delivery or made by credit card, wire transfer or an irrevocable letter of credit (“LC”) instructing a primary bank. Letters of Credit must: i) Cover the full amount of the purchase price; ii) Accompany the order and carry an expiration date at least ninety (90) days beyond the scheduled shipping date; and iii) Allow partial draws upon invoice in accordance with the Payment Terms of this section 7, and be otherwise payable upon presentation of bill of lading, commercial invoice, and packing list, or, if Supplier is unable to ship for any cause beyond Supplier’s reasonable control, upon presentation of a certificate of manufacture.
b) Past-due accounts will be charged interest at the rate of 1 ½ % per month (or the maximum amount permitted by applicable law, if less) on the amount due until fully paid.
c) If installation of standard Products is delayed at customer request, full payment (including installation charges, if any) is due thirty (30) days from date Product is shipped or ready to ship or delivered, notwithstanding any other provision in these Terms to the contrary.
d) Payment shall not be contingent on delivery or performance except as expressly provided in this Section 9, and, notwithstanding any provision to the contrary in these Terms, shall not be contingent on the delivery or acceptance of custom software purchased from Supplier or any third party under a separate contract or agreement, including application part programming, special functions, or communications modules.
e) Approved credit may be revoked at any time.
f) Supplier reserves the right to suspend manufacture and delivery upon failure of Customer to make payments when due, which suspension shall not satisfy Customer’s obligation to pay.
g) Customer shall schedule installation, training or part programming services sold with the Product to take place within 1 months from the date of delivery.
h) Credit card payments are subject to a 2% premium.
i) Refer to Supplier’s quotation and invoice for other specific payment instructions.
10. WARRANTY.
a) Supplier will replace or repair, at Supplier’s option, free of charge, any part or parts, which upon examination Supplier finds defective in workmanship or material, provided that, on Supplier’s request, the part or parts of the machine are returned to Supplier’s plant or premises, and provided further, that there is satisfactory documentation that the Product has been installed, used and maintained in accordance with instructions in the service and/or user manual. Supplier shall not be liable or responsible for any expense or liability resulting from repairs, additions or modifications made upon the Product without Supplier’s written consent.
b) Customer is responsible for shipping defective parts to Supplier premises at his own care and cost. Customer is responsible for Supplier’s travel and lodging cost.
c) Supplier is responsible for labor to replace/repair the defective part Supplier warrants service parts and accessories for ninety (90) days from date of shipment. Supplier warrants service labor for thirty (30) days from date of completion.
APPLICATIONS SERVICES, TRAINING, PART PROGRAMMING AND OTHER SERVICES CARRY NO WARRANTY, EXPRESS OR IMPLIED.
d) For all Products not requiring installation by Supplier, the warranty period is 12 months from Customer’s receipt of Product. The warranty period for Products installed by Supplier is twelve (12) months from the date of installation, not to exceed fourteen (14) months from date of shipment. Warranties are non-transferable and non-assignable. All machine systems require installation by Supplier or the warranty shall not apply. Unless expressly authorized by the Supplier in writing, all service and parts replacement (except for consumables) required during the warranty period must be performed by Supplier or the warranty shall not apply.
LIMITS AND EXCLUSIONS OF WARRANTY
Components subject to wear during normal use and over time, including, but not limited to, paint, window/shield finish and condition, light bulbs, seals and consumable parts such as filters, paper rollers, pressure feet, chip removal system, brushes and bushes, spray gun etc., Pneumatic tools used with non-filtrated air or without lubrication, any damage caused by dust collection due to neglect in usage or maintenance, are excluded from this warranty. Manufacturer’s specified maintenance procedures must be adhered to and recorded in order to maintain this warranty. This warranty is void if Manufacturer determines that (i) any the Product was subjected to mishandling, misuse, abuse, neglect, accident, improper installation, improper maintenance, improper storage, or improper operation or application, (ii) any Product was improperly repaired or serviced by Customer, an unauthorized service technician, or other unauthorized person, (iii) Customer or any person makes or attempts to make any modification to any Product without the prior written authorization of Manufacturer, and/or (iv) any Product was used for any non- intended use.
This warranty does not cover damage or defect due to an external influence or matters beyond the reasonable control of Manufacturer, including, but not limited to, electrical current conditions, theft, vandalism, fire, weather condition (such as rain, flood, wind, lightning, or earthquake), or acts of war or terrorism.
SUPPLIER AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY LOSS OF USE OR DOWNTIME OR LOST PRODUCTION, REVENUE OR PROFIT, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES WITH RESPECT TO THE PURCHASE, SALE, USE OR NON-USE OF PRODUCTS, CAUSED BY DEFECTIVE MATERIAL OR UNSATISFACTORY PERFORMANCE OF PRODUCTS OR SERVICES, WHETHER SUCH LIABILITY IS BASED UPON CONTRACT (INCLUDING BREACH OF A REPRESENTATION OR WARRANTY), TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHER LEGAL THEORY WHATSOEVER, EVEN IF SUPPLIER HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY WARRANTY OR REMEDY IS HELD TO HAVE FAILED IN ITS ESSENTIAL PURPOSE. SUPPLIER MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR PARTICULAR OR SPECIAL PURPOSES. Supplier’s sole warranty liability shall be discharged by replacing or repairing any defective part or parts within the warranty period.
11. OCCUPATIONAL SAFETY AND HEALTH.
It is Customer’s or the user’s responsibility to prepare for install and use any Product in a safe manner in its facility and to provide all proper devices, tools and means to protect all personnel from bodily injury that may result from Customer’s particular use, operation, set-up or service of Supplier’s Product. Customer is advised to consult the operator, machine and programming manuals, ANSI Safety Standards and state and federal OSHA regulations. Customer shall install and use the Products at all times in compliance with the foregoing manuals, safety standards, applicable codes, ordinances, regulations and laws and general standards of care.
12. PRODUCT ACCEPTANCE.
Machine acceptance tests are agreed to only by express written agreement of the parties. In any event, Products are deemed accepted no later than first commercial use.
13. GOVERNMENT RESTRICTIONS.
Supplier’s performance under any contract is subject to the issuance of any required export license or other necessary government authorization. Supplier has the right to terminate without liability any order or contract if Supplier determines such sale, export or delivery violates applicable law. Termination will not affect the right of Supplier to recover the contract price for any unpaid Product already delivered. Customer shall not export or re-export any Product in violation of applicable law and it is understood that machinery, equipment, documentation and software, if any, including technical data, may not be exported or re-exported in violation of the U.S. Export Administration Act, its implementing laws and regulations, the laws and regulations of other U.S. agencies or the export and import laws of the jurisdiction in which this machinery, equipment, documentation and software, if any, including technical data was obtained. Export to or from any individual, entity, or country specifically designated by applicable law is strictly prohibited.
14. HARMLESS / INDEMNITY.
Customer hereby releases and agrees to defend, indemnify and hold Supplier harmless from and against all claims, demands, suits and causes of action (“liability”) for property damage, personal injury or death, and all loss, cost, damage and expense (including reasonable attorneys’ fees) relating to the Product, arising out of: i) Customer’s modification to, or change of the Product or software or firmware as originally delivered; ii) Customer’s failure to purchase, install, provide or implement any safety part or practice customary in the industry (including, but not limited to, a mechanical, electrical or software interlock or other safety device); or iii) Customer’s negligence, violation of law or other fault.
15. INTELLECTUAL PROPERTY OWNERSHIP.
Customer acknowledges that Supplier owns (as between Supplier and Customer) and will retain all ownership in the intellectual property relating to the Product, including, without limitation, copyright, trademark, trade secret, knowhow, database, design and patent rights, and all tangible and intangible components thereof, and any improvements, modifications, design contributions or derivative works thereto or thereof conceived or created by Supplier, whenever developed (hereinafter the “Supplier Intellectual Property”). Customer will not: i) decode, reverse engineer, or decompile the Product in whole or in part; ii) reproduce, copy, distribute, make derivative works or publicly perform any of Supplier Intellectual Property manifested in a tangible medium of expression (including, without limitation, software, brochures, user manuals, and the like), without prior written consent from an authorized officer of Supplier; iii) circumvent, directly or indirectly, any technical measures or devices securing Supplier Intellectual Property; iv) modify, repair, reconstruct or enhance the Product ("alterations"), without prior written consent from an authorized officer of Supplier; or v) otherwise access or manipulate the Supplier Intellectual Property, except as expressly permitted in writing by Supplier. Customer acknowledges that software or other intellectual property provided by a third-party licensor of Supplier (“Third-Party Intellectual Property”) may be incorporated in the Products. Customer will abide by the applicable terms and conditions with respect to such Third-Party Intellectual Property, whether set forth in the Product documentation, “read me” files contained in the Products, or otherwise. Unless provided for in the product documentation of such third party licensor, any Third-Party Intellectual Property is governed by these Terms. Where Customer’s use of any Supplier Intellectual Property is governed by an End User License Agreement or other agreement that requires acceptance prior to use of such Supplier Intellectual Property, the terms of such End User License Agreement or like agreement shall control where and to the extent such agreement is inconsistent with these Terms.
16. SEVERABILITY.
If any of these Terms is invalid or unenforceable under any applicable law, such shall be deemed reformed or deleted, but only to the extent necessary to comply with such applicable law, and the remaining provisions (or part thereof) shall remain in full force and effect.
17. NO WAIVER. Supplier shall have the benefit of all rights and remedies provided by law or equity. Failure of Supplier to exercise or reserve any right or remedy shall not be construed as a waiver thereof or of any other right or remedy.
18. FORCE MAJEURE. Neither party shall be responsible for delays or failure in performance of this Agreement (other than failure to pay any amounts due) to the extent that such party was hindered in its performance by any act of God, civil commotion, labor dispute, unavailability or shortages of materials or any other occurrence beyond its reasonable control.
19. GOVERNING LAWS. Any contract arising out of the placing of an order by the Customer and the acceptance by Supplier shall be governed by the Laws of the State of Italy.
20. GOVERNING LANGUAGE. In the event of translation of these terms and conditions to a language other than English, the English language shall govern.
Pluritec N.A. 1556 Ocean Ave Bohemia – NY 11716
Pluritec S.r.l. – Via Candossino 6 – 10010 Burolo (TO) – Italy
Pluritec Industries Far East Inc. - 17/F, 80 Gloucester Road, Wanchai, Hong Kong
