GLOSYNERGY INC. TERMS AND CONDITIONS OF SALE
1. TERMS OF SALE. The terms and conditions on this form (collectively, the “Terms”), together with any order-specific terms placed by GLOSYNERGY on the face of its form, exclusively govern the sale of standard catalogue Solid State Lighting products (individually and collectively, the “Products”) sold by GLOSYNERGY INC. (“GLOSYNERGY”) to its customer (“BUYER”). Whether or not this form is deemed an offer, an acceptance or a confirmation or acknowledgment, any terms and conditions proposed by BUYER, whether orally or in writing, in connection with the purchase of Products which add to, vary from or conflict with these Terms are hereby objected to, and GLOSYNERGY expressly conditions its sale of Products on BUYER’s assent to these Terms. BUYER shall be deemed conclusively to have unconditionally accepted these Terms with respect to each order by the opening of a letter of credit or other facility to pay for Products; or by the tender of payment or partial payment for Products; or by acceptance of any Products, whether conforming or non-conforming. Submission by BUYER of a purchase order containing terms and conditions that vary from these Terms, and any shipment of Products in whole or partial fulfillment of such purchase order, will not be deemed to constitute an offer by BUYER or an acceptance by GLOSYNERGY of any of the terms and conditions of such purchase order, except as to the identification and quantity of Products, but will be deemed to be governed by these Terms. These Terms are incorporated into all GLOSYNERGY quotations, proposals and purchase agreements between BUYER and GLOSYNERGY.
2. PRICES. Prices for Products shall be those set forth in a current GLOSYNERGY quotation or proposal to BUYER and which are stated as “Firm” as of the date of BUYER’s order to GLOSYNERGY or, if there is no quotation or proposal currently in effect, prices shall be those in a current published price schedule. Unless prices are “Firm” as of BUYER’s order as stated in a current GLOSYNERGY quotation or proposal, all prices are subject to change by GLOSYNERGY upon their issuance and without notice prior to shipment; provided that, no price increase will affect any order previously placed by BUYER and accepted by GLOSYNERGY. Prices are exclusive of all taxes of any nature imposed by any governmental authority. All such taxes shall be for BUYER’s account, whether or not collected, advanced or paid by GLOSYNERGY, and shall be paid by BUYER upon GLOSYNERGY’s invoice unless BUYER timely provides a tax exemption certificate in form satisfactory to GLOSYNERGY.
3. QUANTITY. The quantity of Products sold will be as set forth in BUYER’s order as such quantity may be modified pursuant to these Terms. Overruns or underruns of Products, not to exceed 10% of the amount ordered, shall constitute an acceptable completion of BUYER’s order and shall be invoiced accordingly.
4. ORDERING. All orders for Products should be submitted by email or facsimile to the address or fax number available from the applicable Product department. Telephone orders may be placed but must be confirmed in writing within 24 hours. All orders are subject to acceptance in writing at GLOSYNERGY’s principal place of business by faxed or other order acknowledgement; provided that, accepted orders will be subject to change, suspension and/or cancellation as provided by these Terms. GLOSYNERGY reserves the right to accept or reject orders in whole or part in its sole, absolute discretion.
5. SHIPMENT. (a) Delivery and price terms are F.O.B. GLOSYNERGY’s warehouse unless agreed differently by GLOSYNERGY in writing. The method and route of shipment are at BUYER’s discretion if shipping instructions are included in BUYER’s order; otherwise method and route of shipment are at GLOSYNERGY’s discretion. BUYER will bear all costs, insurance premiums, freight and other expenses incurred after GLOSYNERGY has placed Products in the custody of a carrier. (b) GLOSYNERGY reserves the right to make complete or partial shipment of Products. Each shipment of Products constitutes a separate sale, whether the shipment is in whole or partial fulfillment of BUYER’s order or confirmation for Products. (c) If BUYER defaults in payment for Products as required by these Terms, GLOSYNERGY may suspend further shipments. Continuation of shipments does not constitute a waiver of such default. (d) If Products are in short supply, GLOSYNERGY reserves the right to allocate shipment of orders and back orders in its sole, absolute discretion. (e) All shipments are made at BUYER’s risk. Title to and risk of loss of, or damage to, Products in transit shall pass to BUYER when Products are placed in the custody of a carrier for shipment to BUYER. (f) Dates of delivery of Products, whether contained on GLOSYNERGY’s order acknowledgment or otherwise, are estimates only. In no event will GLOSYNERGY be responsible for loss or damage of any kind resulting from delay or failure to deliver Products that is caused directly or indirectly by any thing or event beyond GLOSYNERGY’s absolute, exclusive and unconditional control. GLOSYNERGY is not required to use overtime labor or expend monies to cure a delay or failure to deliver. In the event of any partial failure to deliver, GLOSYNERGY will have the right to receive payment for Products in fact delivered, whether or not delivery may have been delayed. (g) GLOSYNERGY reserves the right in its sole, absolute discretion to cancel any backorder even if such order has been accepted previously by acknowledgement, partial shipment or otherwise.
6. INSPECTION. Upon receipt of Products, BUYER will inspect Products for shortages and visible damage, as packed, and will open damaged boxes to inspect for visible damage. BUYER will not have an obligation to open boxes if packaging appears undamaged. If BUYER finds shortages or Product with visible damage, BUYER must notify the carrier or insurer as well as GLOSYNERGY within ten (10) days after receipt of shipment. Failure by BUYER to so notify GLOSYNERGY in detail of shortages and visible Product damage will be conclusive proof that Products have been received by BUYER in the quantity set forth on the bill of lading and without visible damage. If GLOSYNERGY believes that damage to Product did not occur in transit, it will arrange with BUYER to return the damaged Products to GLOSYNERGY at its cost for shipping. As BUYER’s exclusive remedy for damaged Products (other than Products damaged in transit) that are returned to GLOSYNERGY, GLOSYNERGY will at its election: (1) replace such Products with conforming products; or (2) credit the price paid for such Products against the price of other Products.
7. RETURNED PRODUCTS; CANCELLATIONS OR CHANGE. (a) In no case may Products be returned to GLOSYNERGY without first obtaining GLOSYNERGY’s written return material authorization (RMA). BUYER must comply with conditions specified by GLOSYNERGY in the RMA. Products accepted for return will be subject to a minimum restocking charge of 20% of the invoice price of the returned Products. GLOSYNERGY assumes no responsibility for unauthorized returns. Except as provided in paragraph 6, all authorized returns will be at BUYER’s expense. (b) Except as set forth in paragraph 12, BUYER may not cancel or otherwise change an order for Products in whole or in part without GLOSYNERGY’s prior written consent and upon terms that will indemnify GLOSYNERGY against all loss, damage and liability as a result of the return.
8. PAYMENT AND COLLECTION. (a) Unless otherwise stated by GLOSYNERGY in writing, terms of payment will be net 30 days from date of invoice. (b) BUYER will pay GLOSYNERGY the full amount of the purchase price of Products upon the due date set forth on GLOSYNERGY’s invoice. Open accounts unpaid beyond their due date will bear interest at a rate equal to the lesser of: (i) the highest rate legally permissible in BUYER’s domicile, or (ii) 11/2% per month from the date payment is due. If GLOSYNERGY retains an agency and/or attorneys to collect amounts overdue, all collection costs and costs to repossess assets, including reasonable attorneys’ fees, shall be payable by BUYER. (c) Unless specifically authorized by GLOSYNERGY in writing, BUYER will make full payment of GLOSYNERGY invoices without deduction and regardless of any claim, counterclaim or setoff BUYER may have against GLOSYNERGY. Any such claim, counterclaim or setoff shall be resolved exclusively as provided in paragraph 16(k). (d) If BUYER becomes delinquent in its payment obligations to GLOSYNERGY, or if, in GLOSYNERGY’s sole, absolute business judgment, BUYER’s credit is impaired or BUYER is unable to pay its bills when due, GLOSYNERGY may, immediately upon notice to BUYER, take one or more of the following actions as it may deem appropriate in its sole, absolute discretion to protect its financial position: (i) refuse to accept any new order, (ii) cancel open purchase orders or suspend shipments, in whole or in part, it being agreed that continuation of shipments does nor constitute a waiver of any default, (iii) declare all sums owing from BUYER to be immediately due and payable, (iv) cancel or modify any line of credit and payment terms previously extended, or (v) require, as a condition of continuing to do business, that BUYER execute such instruments as GLOSYNERGY in its sole, absolute business discretion deems appropriate to ensure payment by BUYER of past and future debt. In no event will GLOSYNERGY be obligated to accept the return of Products in full or partial satisfaction of BUYER’s account. (e) BUYER hereby grants GLOSYNERGY a continuing purchase money security interest in all Products now owned and hereafter acquired by BUYER and in all additions, accessions, and replacements of such Products now owned or hereafter acquired, and in all proceeds of the foregoing, to secure payment and performance of all BUYER’s obligations under these Terms. BUYER hereby authorizes GLOSYNERGY or any of its representatives to file financing statements pursuant to the Uniform Commercial Code to evidence, create, maintain, renew or perfect GLOSYNERGY’s security interest.
9. WARRANTIES. (a) GLOSYNERGY warrants its Products only to commercial end users and to OEM customers that integrate Products without alteration into their own products. For the avoidance of doubt, in no event does the warranty run to resellers or to customers of OEM buyers. GLOSYNERGY’s Limited Warranties for Solid State Lighting, Hazardous Area Lighting and other Products are set forth in the warranties section of GLOSYNERGY’s website at www.GLOSYNERGY.com and are hereby incorporated into these Terms by this reference. BUYER undertakes to direct its customers, other than OEMs that do not integrate Products without alteration into their own products, to the warranty section of GLOSYNERGY’s website before consummating a sale of Products. GLOSYNERGY reserves the absolute right to eliminate, modify or replace any or all Limited Warranties prospectively and will promptly post copies of such new Limited Warranties on its website. (b) NO PRODUCT WARRANTIES, GUARANTEES OR REPRESENTATIONS, EXPRESS OR IMPLIED, ARE CREATED BY THESE TERMS OR THE CONTRACT OF WHICH THEY MAY BE A PART. EACH OF GLOSYNERGY’S LIMITED WARRANTIES IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED BY AFFIRMATION, PROMISE, DESCRIPTION, MODEL, SAMPLE OR OTHERWISE, AND ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY WITH RESPECT TO INFRINGEMENT THAT MAY BE PROVIDED BY SECTION 2-312(3) OF THE UNIFORM COMMERCIAL CODE OR BY ANY OTHER LAW, ARE HEREBY EXCLUDED AND DISCLAIMED. (c) Except as otherwise expressly provided by paragraphs 10 and 11, all liability and obligations to BUYER with respect to defective Products are hereby disclaimed except as GLOSYNERGY may undertake in a published written policy with respect to Products that are found to be defective in BUYER’s inventory. Without limiting the generality of the foregoing, BUYER acknowledges and agrees that GLOSYNERGY shall have no liability, cost or expense for repair, de-installation, re-installation or other work by BUYER or any other person in connection with Products. (d) BUYER will not make any warranty, representation or guarantee to any person, either orally or in writing, in the name of or on behalf of GLOSYNERGY. BUYER will not make or publish any technical description of Products, including features and specifications, beyond the description published by GLOSYNERGY. BUYER acknowledges that it is solely responsible for all decisions whether or not Products are compatible or suitable including in combination with products not supplied by GLOSYNERGY.
10. LIMITATION OF LIABILITY. (a) Limitation of Indirect Damages and Remedies. UNDER NO CIRCUMSTANCES WILL BUYER OR GLOSYNERGY BE LIABLE TO THE OTHER, UNDER ANY LEGAL THEORY, FOR INDIRECT, SPECIAL, INCIDENTAL (EXCEPT AS PERMITTED BY THESE TERMS), PUNITIVE, LIQUIDATED OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS OR OTHER ECONOMIC LOSS, SUSTAINED BY GLOSYNERGY OR BUYER, AS THE CASE MAY BE, OR BY ANY OTHER PERSON, WHETHER OR NOT BY WAY OF INDEMNIFICATION, IN CONNECTION WITH ANY ORDER FOR PRODUCTS OR CONTRACT THEREFOR OR THE PRODUCTS COVERED THEREBY, EXCEPT FOR CONSEQUENTIAL DAMAGES RELATING TO DEATH OR PERSONAL INJURY IN JURISDICTIONS WHERE SUCH DAMAGES MAY NOT BE DISCLAIMED AS A MATTER OF LAW. IN NO EVENT WILL GLOSYNERGY BE LIABLE FOR “COVER” DAMAGES OR WILL BUYER HAVE THE RIGHT TO REVOKE ACCEPTANCE OF PRODUCTS, UNDER THE UNIFORM COMMERCIAL CODE OR OTHERWISE. BUYER’S REMEDIES FOR DEFECTIVE PRODUCT ARE SOLELY AND EXCLUSIVELY AS SET FORTH IN GLOSYNERGY’S PRODUCT WARRANTY AND GLOSYNERGY’S INDEMNIFICATION SET FORTH IN PARAGRAPH 10, ALL AS LIMITED BY THESE TERMS. (b) Limitation of Direct Damage. THE LIABILITY OF GLOSYNERGY OR BUYER, AS THE CASE MAY BE, FOR DIRECT DAMAGES IN CONNECTION WITH ANY ORDER FOR PRODUCTS, OR CONTRACT THEREFOR, OR PRODUCTS COVERED THEREBY, REGARDLESS OF THEIR DELIVERY OR NON-DELIVERY, ACCEPTANCE OR NON-ACCEPTANCE OF SUCH PRODUCTS, AND WHETHER OR NOT PRODUCTS ARE DEFECTIVE, WILL NOT IN ANY EVENT BE GREATER THAN THE ACTUAL PURCHASE PRICE OF PRODUCTS WITH RESPECT TO WHICH SUCH CLAIM IS MADE.
11. CHANGES IN DESIGN; ERRORS. GLOSYNERGY reserves the right without liability to modify Products prior to delivery and without notice. If such modifications materially affect published Product specifications, GLOSYNERGY shall give notice of such change to BUYERS with firm orders for such Products, allowing such BUYERS the right within ten (10) days from receipt of such notice to cancel orders for such Products without liability. In no event will GLOSYNERGY be obligated to make any such modifications in Products previously supplied to BUYER or to continue to supply Products as made prior to such modification. GLOSYNERGY reserves the right in its sole, absolute discretion to reclassify or regroup Products and to replace or discontinue Products. GLOSYNERGY shall not have any liability of any nature as a result of the foregoing. GLOSYNERGY reserves the right to correct clerical and typographical errors in any quotation, acknowledgement, invoice and/or any Product publication or catalogue.
12. TRADEMARKS. (a) Trademark Use. BUYER may use the trademark, "GLOSYNERGY," and GLOSYNERGY’s other trademarks as found in its Product literature solely in connection with the sale of genuine Products, but only if due regard is given to proper trademark use and the ownership by GLOSYNERGY of its name and marks. BUYER will not use any trademark licensed by GLOSYNERGY from a third party without obtaining a license from the owner of such trademark. In no event will BUYER use any trademark or trade name owned by GLOSYNERGY, either alone or with any other word or words, as part of BUYER’s trade or corporate name or in combination with BUYER’s or any others' trademark without GLOSYNERGY’s express written consent. BUYER will not remove or alter any trademark or trade name, part number or other designation from any Product. Buyer acknowledges that GLOSYNERGY has legally protected and valid intellectual property rights in Products, product images and descriptions, trade dress, trade names, trademarks, logos and all other proprietary information and things, tangible and intangible, whether or not registered, used by GLOSYNERGY in connection with its business and Products (the "Intellectual Property Rights"). Buyer will not imitate Products or infringe upon GLOSYNERGY's Intellectual Property Rights in any way whatsoever, and will not participate in any way in the distribution or sale of imitations of Products or the distribution or sale of any GLOSYNERGY-brand merchandise that was not intended for sale in Canada (so-called "Gray Market Merchandise"). Buyer will not use the "GLOSYNERGY” name or, except as provided in this paragraph, any of the Intellectual Property Rights, without GLOSYNERGY's prior written consent. Buyer acknowledges and agrees that it has no ownership or other property interest in or to the Intellectual Property Rights. (b) Injunctive Relief. BUYER acknowledges that should it breach, or threaten the breach of, any of its covenants with respect to GLOSYNERGY’s trademarks or other Intellectual Property Rights, GLOSYNERGY will be irreparably harmed and will be entitled to an injunction preventing BUYER from breaching or further breaching such covenants without any further or more particularized showing of irreparable injury and without the need to post bond or other security. Such an injunction may be applied for before any Court having jurisdiction thereof. In any such proceeding, GLOSYNERGY will be entitled to recover any damages it suffers as a result of BUYER’s breach, including the recovery of any costs and reasonable attorneys' fees incurred in enforcing the Intellectual Property Rights.
13. TOOLS, EQUIPMENT, MATERIAL AND OTHER PROPERTY. (a) All proprietary material, equipment, tools, jigs, dies, drawings, specifications, patterns, processes, technical know-how and other industrial and/or intellectual property of GLOSYNERGY used by GLOSYNERGY in connection with Products shall remain the property of GLOSYNERGY. (b) Unless GLOSYNERGY otherwise agrees in writing, all drawings, materials and equipment, including component parts or inserts to be incorporated into Products, entrusted by BUYER to GLOSYNERGY for the purpose of manufacturing Products shall be entrusted at BUYER’s own risk. GLOSYNERGY shall have no liability with respect to the conservation, damage or loss thereof, whether or not due to GLOSYNERGY’s fault, and GLOSYNERGY shall not be required to insure the same.
14. MISCELLANEOUS PROVISIONS. (a) These Terms will be binding upon and inure to the benefit of the respective successors and permitted assigns of the parties hereto. (b) The rights of BUYER or GLOSYNERGY hereunder are not assignable, except that GLOSYNERGY may assign the proceeds under any contract to sell Products to any third party at any time without the consent of the BUYER. Any assignment or attempted assignment in violation of the foregoing prohibition will be null and void. (c) There are no third-party beneficiaries of these Terms or the contract of which they may form a part. (d) The captions set forth herein are for convenience of reference only and will not affect in any way the meaning or interpretation of these Terms. (e) The words “including” and “include” as used in this document mean, respectively, “including, without limitation” and “include, without limitation” and will be interpreted as not limiting the matter described by the examples given. (f) The words "hereof," "herein" and "hereunder" and words of similar import will refer to all applicable provisions of these Terms and the contract of which they may be a part and not to any particular provision of either. (g) These Terms are the result of negotiation and, accordingly, no presumption or burden of proof will arise with respect to any ambiguity or question of intent concerning these Terms favoring or disfavoring BUYER or GLOSYNERGY by virtue of the authorship of any provision of these Terms. (h) Words denoting the singular tense or person will include the plural and vice versa and references to paragraphs are to paragraphs in these Terms. (i) Any specific legal right or remedy provided in these Terms will not be exclusive or limited unless expressly provided herein, but will be cumulative with all other such rights and remedies set forth in these Terms or available under applicable law. (j) THE PARTIES HEREBY WAIVE TRIAL BY JURY IN CONNECTION WITH ANY ACTION OR SUIT UNDER THESE TERMS OR OTHERWISE ARISING OUT OF THE RELATIONSHIP OF THE PARTIES.
|Last Updated on Thursday, 30 June 2011 14:49|