GENERAL TERMS AND CONDITIONS OF SALE
1. BUYER'S ACCEPTANCE. These General Terms and Conditions of Sale ("Terms and Conditions") shall apply to every sale by [PP US] ("SELLER") of its goods ("Goods"). By placing, confirming or accepting delivery of any order for Goods, you (hereinafter referred to as the "BUYER") agree to these Terms and Conditions of Sale, which shall supercede and take precedence over any other terms and conditions which may be supplied by BUYER with respect to the sale and shipment of the Goods hereunder.
2. PURCHASE ORDERS. BUYER shall submit purchase orders (each a "Purchase Order") to SELLER in writing for Goods, stating, at a minimum: (a) identification of the Goods ordered; (b) quantity of Goods; and (c) requested date of delivery of Goods. Each such Purchase Order shall constitute an irrevocable offer to purchase the Goods referred to therein for a period of six (6) months commencing on the date such Purchase Order is received by SELLER (the "Acceptance Period"). SELLER reserves the right to accept or refuse BUYER'S order for Goods at any time within the Acceptance Period by sending written confirmation or refusal of the Purchase Order to BUYER. No Purchase Order may be cancelled or modified by BUYER except as provided herein. Any Purchase Order by BUYER may be accepted by SELLER in whole or in part and is accepted subject to SELLER'S ability to ship, contingent upon product availability, force majeure and any other cause beyond the reasonable control of SELLER.
3. CANCELLATION / SUSPENSION BY SELLER. SELLER reserves the right to suspend or terminate its performance of any order from BUYER, even if the Purchase Order has been confirmed by SELLER, or to condition delivery of the Goods upon advance payment in full of the price and / or any other sum that may be due from BUYER to SELLER, or upon the presentation to SELLER of adequate guarantees, in the event there should there be any failure or delay in compliance by BUYER, either with regard to previous orders or to the order in question. In addition, SELLER may cancel any order, in whole or in part, without liability, if BUYER becomes insolvent or suspends any of its operations or if any petition is filed or proceeding commenced by or against BUYER under any state or federal law relating to bankruptcy, reorganization, receivership, or assignment for the benefit of creditors, or if SELLER believes that BUYER'S ability to make payment is or may become impaired or if BUYER is in default of payment or otherwise in default under any order or contract with SELLER. SELLER also reserves the right to cancel, in whole or in part, or to suspend or delay, in whole or in part, any orders due to (i) the unusually large size of an order, (ii) shortages of, or failure of SELLER'S suppliers to deliver, or (iii) any other event of force majeure or beyond SELLER'S control.
4. CANCELLATION / SUSPENSION BY BUYER. A Purchase Order placed by BUYER cannot be canceled, suspended, or extended without SELLER'S express prior written consent and then only upon terms that will indemnify SELLER against loss and provide SELLER with a reasonable profit for its time, services, use of facilities and otherwise. BUYER will be obligated to accept any Goods shipped or delivered by SELLER prior to cancellation, suspension or extension of the order. In the event of such cancellation or modification to any order of Goods by BUYER before expiry of the Acceptance Period (with SELLER'S express prior written consent), BUYER will be required to pay SELLER as liquidated damages (and not by way of penalty), an amount equivalent to twenty (20%) percent of the value of Goods to which the cancelled or revoked Purchase Order applied to, without prejudice to compensation of any further damages.
5. DELIVERY TERMS. The terms for delivery indicated in the Purchase Order, in the confirmation of order or elsewhere are not binding upon SELLER, but merely indicative. SELLER is therefore entitled to deliver all or part of any order of Goods in advance, or within a reasonable delay period, without entitling BUYER to request full or partial termination of the order, claim compensation or indemnity, or invoke the responsibility of SELLER for any other reason. SELLER shall not, under any circumstances, be responsible for delays in delivery due to force majeure, non-compliance by third parties, provisions put into force by public authorities, strikes, etc. Should the BUYER refuse to receive all or part of the Goods delivered at the place of destination, SELLER may, at its own choice, require compliance with the contract, or declare said contract terminated in full or in part. In both the above cases, SELLER maintains the right to claim compensation for damage. It is expressly stated that SELLER shall not be considered responsible for any risks or expenses that may derive from or relate to holding the Goods in store.
6. DOCUMENTS, TRANSPORT AND INSURANCE. Unless otherwise specified by SELLER, the Goods will be sold to BUYER, "EXW" (as defined in "Incoterms 2010") SELLER'S Warehouse (geographical location to be confirmed by SELLER). Risk of loss or damage to the Goods shall pass to BUYER when Goods are placed at the disposal of BUYER or BUYER'S carrier at SELLER'S Warehouse (collection by BUYER or BUYER'S carrier shall constitute a delivery). Any documentation relating to the order of the Goods shall be considered as to have been validly executed on behalf of the BUYER following execution by any employee, agent or carrier of BUYER (even if such individual has not been given full authority by BUYER to bind BUYER). Any costs or expenses incurred by SELLER as a result of BUYER'S failure to accept the Goods will be charged to BUYER. Prices on any undelivered portion of any Goods hereunder are subject to increase, upon fifteen (15) days prior written notice to BUYER, by the amount that SELLER'S cost, direct or indirect, is affected by increased costs in relation to the manufacture of the Goods following the date of BUYER'S order.
7. PAYMENTS. Unless otherwise agreed by SELLER in writing, thirty (30%) percent of the invoice amount set forth in SELLER'S invoice is due upon receipt thereof by BUYER with the remaining amount due upon delivery of the Goods in the form of cash or bank-certified check. BUYER cannot at any time take deductions against payments or initiate a return of Goods to SELLER without prior written consent from SELLER.
SELLER may, at any time and from time to time, in its sole discretion, limit or cancel the credit of the BUYER as to time and amount, and as a consequence, may, at any time, require payment in cash of any amounts currently due to SELLER or to become due under BUYER'S order, before shipment of any or all of the Goods. Upon failure of BUYER to make any such payment within (10) days after demand, or in the event of any default, breach or repudiation by BUYER of this or any other order or contract with SELLER, or if BUYER shall become insolvent, call a meeting of its creditors, or make an assignment for the benefit of creditors, or if bankruptcy, insolvency, reorganization or arrangement proceeding shall be commenced by or against BUYER, SELLER may: cancel this or any other order(s) or contract(s) with BUYER (BUYER remaining liable for damages); defer any shipments hereunder; declare forthwith due and payable all outstanding bills of BUYER under this or any other order(s) or contract(s); and/or sell all or any part of the undelivered Goods, without notice, at public or private sale, the BUYER to be responsible for the costs and expenses of such sale and for any deficiency (i.e. the difference between BUYER'S indebtedness to SELLER and the amount received on such sale), together with the costs and expenses of such sale. At such sale, SELLER may become the buyer of such Goods. Interest will accrue on late payments at a rate equal to twelve (12%) percent per annum on the number of days elapsed. SELLER'S right to such interest shall be in addition to any and all of SELLER'S other rights and remedies at law or equity. BUYER shall make all payments in accordance with these Terms and Conditions and the invoice regardless of disputes relating to other invoices or other delivered (or undelivered) Goods. BUYER waives the right to assert offsets, defenses or counter-claims. Any Goods sold to BUYER, including but not limited to Goods billed and held (whether paid for or not) at any time in SELLER'S possession or the possession of any parent, subsidiary or affiliate company of SELLER, either as principal or agent, shall be deemed held as security for, and may, at SELLER'S option, be set off against any and all of the BUYER'S (or any parent, subsidiary or affiliate of BUYER) obligation to SELLER or to any parent, subsidiary, affiliate, principal or agent of SELLER. Any check or remittances received from, or for the account of, the BUYER may be accepted and applied by SELLER against any indebtedness or obligation owing by BUYER as shown by the books and records of SELLER without prejudice to, or the discharge of, the remainder of any such indebtedness or obligation, regardless of any condition, provision, statement, legend or notation appearing on, referred to, or accompanying such check or remittance.
8. SECURITY INTEREST. As security for the performance of BUYER'S payment obligations hereunder, BUYER agrees that with respect to the Goods sold hereunder, and all proceeds thereof, a purchase money security interest may, at SELLER'S sole discretion, be attached to the Goods and such proceeds, with SELLER as a secured party, until BUYER has made payment in full, including deferred payments whether evidenced by notes or otherwise. BUYER agrees to execute any financing statements and any amendments thereto required by SELLER to create and preserve such purchase money security interest and BUYER hereby authorizes and grants power of attorney to SELLER to file any financing statements in any jurisdiction at any time it deems necessary to protect and maintain its interest, with or without the signature of BUYER, and specifically authorizes SELLER to file such statements without BUYER'S signature.
9. PARTIAL SHIPMENTS. Partial shipments will be invoiced as shipped. BUYER cannot accept only a part of the Goods delivered. Acceptance of any part of the Goods ordered shall constitute acceptance of all of the ordered Goods, whether or not the Goods are all tendered in one shipment. BUYER shall notify SELLER of any shortages with respect to any orders of Goods within fifteen (15) days of delivery.
10. LIMITATION OF WARRANTY. SELLER WARRANTS THAT THE GOODS ARE FREE FROM MANUFACTURING FAULTS, AND THAT THEY COMPLY WITH THE SPECIFICATIONS SET FORTH IN THE PURCHASE ORDER. THIS WARRANTY DOES NOT EXTEND TO SURFACE DAMAGE OR TO ANY DEFORMITY IN THE MODELS, (INCLUDING, BUT NOT LIMITED TO, WEIGHT, DIMENSIONS, DESIGN, COLORS AND FINISHES), NUMBERS, AND ASSORTMENTS, NOR TO ANY IRREGULARITY IN THE PACKING AND BOXES, THAT FALL WITHIN NORMAL TOLERANCES AND/OR CUSTOMARY DEVIATIONS. EQUALLY, THIS WARRANTY DOES NOT EXTEND TO FAULTS CAUSED BY TAMPERING OR IMPROPER USE OF THE GOODS. SELLER MAKES NO OTHER WARRANTY OR REPRESENTATION WITH RESPECT TO THE GOODS, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THAT OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, OR OF ANY FACTORS OF QUALITY, EXCEPT AS PROVIDED HEREIN. BUYER IS OBLIGED TO CHECK THE GOODS IMMEDIATELY UPON THEIR ARRIVAL. ANY CLAIM FOR DEFECTS, INCLUDING HIDDEN FAULTS, OR FAILURE OF THE GOODS TO COMPLY WITH THESE TERMS AND CONDITIONS, MUST BE MADE BY BUYER, UPON PENALTY OF FORFEITURE, WITHIN TEN (10) DAYS FROM RECEIPT OF THE GOODS. GOODS WHICH ARE DEFECTIVE IN MATERIAL OR WORKMANSHIP WILL BE REPLACED OR, AT SELLER'S OPTION, CREDIT FOR THE ORIGINAL PURCHASE PRICE WILL BE ALLOWED PROVIDED THAT BUYER NOTIFIES SELLER IN WRITING OF SUCH DEFECT WITHIN TEN (10) DAYS AFTER DELIVERY AND BUYER RETURNS SUCH GOODS IN ACCORDANCE WITH SELLER'S INSTRUCTIONS. NO GOODS MAY BE RETURNED BY THE BUYER WITHOUT SELLER'S PRIOR WRITTEN AUTHORIZATION. ALL RETURNS SHALL BE SUBJECT TO VERIFICATION ON ARRIVAL AT THE LOCATION SPECIFIED FOR THE RETURN OF THE GOODS IN SUCH WRITTEN AUTHORIZATION. FAILURE TO MAKE ANY CLAIM IN WRITING, OR WITHIN SUCH TEN (10) DAY PERIOD SHALL CONSTITUTE AN IRREVOCABLE ACCEPTANCE OF THE GOODS AND AN ADMISSION BY THE BUYER THAT THE GOODS FULLY COMPLY WITH ALL TERMS, CONDITIONS AND SPECIFICATIONS OF BUYER'S ORDER. SELLER SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, DAMAGE OR LOSS RESULTING FROM INABILITY TO USE THE GOODS, INCREASED OPERATING COSTS OR LOSS OF SALES, OR ANY OTHER DAMAGES. NO ACTION FOR BREACH OF THIS WARRANTY MAY BE COMMENCED MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF THE CAUSE OF ACTION. THE FOREGOING CONSTITUTES BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S SOLE OBLIGATION WITH RESPECT TO GOODS FURNISHED HEREUNDER. THE PARTIES AGREE THAT THE BURDEN OF PROVING ANY BAD PRACTICE ON THE PART OF SELLER WILL BE BORNE IN FULL BY THE BUYER.
11. CLAIMS. TERMS FOR PRESENTATION AND NO SET-OFF; ANY CLAIMS FOR FAULTS, MALFUNCTIONS AND MISSING COMPONENTS MUST BE PRESENTED BY MEANS OF A REGISTERED LETTER WITH RECEIPT SLIP, TO BE SENT TO SELLER BY BUYER WITHIN TEN (10) DAYS OF RECEIPT OF THE GOODS BY BUYER. BUYER ACKNOWLEDGES THAT ANY CLAIM NOT SUBMITTED AS SET FORTH ABOVE IS BARRED AND VOID. The existence of pending claims against SELLER, including any claims brought by BUYER under the warranty contained in the preceding paragraph, does not provide the BUYER with a right to delay or suspend payment of the price of Goods in whole or in part. Neither do such claims give BUYER the right to request SELLER for set-off for any credits. All returns shall be previously approved by SELLER; the authorization number given by SELLER customer service shall be attached to the shipping carton. Fax or mail requests shall indicate the style number and the reasons for return (i.e. nature of defect). All returns shall be shipped freight pre-paid. Should SELLER verify that the Goods are defective, their cost, plus the cost of the return freight, shall be credited to the BUYER'S account. Should SELLER decide to accept a return of Goods which on subsequent inspection are found not to be defective, the BUYER shall be charged $5 per item for re-boxing / re-stocking.
12. PRICE. The price of Goods ("Price") is that which is indicated on the Purchase Order; however, should the Price on SELLER'S price list in force on the date of delivery of the Goods be different, either for some or for all the Goods in question, the Price to be applied will be that price set forth on the price list. Any indication of prices to be used for resale of Goods by the BUYER, found on the price list, indicated directly on the packaging of the Goods or communicated to the BUYER in any other manner, is to be considered merely indicative, and is therefore a non-restrictive recommended price.
13. FORCE MAJEURE. SELLER shall not be liable for any delay in delivery, or failure to deliver, due to any cause beyond SELLER'S control, including but not limited to present or future statute, law, ordinance, regulation, order, judgment or decree, shortages, act of God, earthquake, epidemic, explosion, flood, lockout, boycott, strike, riot, terrorism, war or armed conflict (whether or not there has been an official declaration of war or official statement as to the existence of a state of war), or act of a public enemy, delay in transportation or lack of transportation facilities.
14. NO ASSIGNMENT OR TRANSFER OF SALE. BUYER is prohibited from assigning or transferring any Purchase Order without the prior written consent of SELLER. In the case of failure to comply with this provision, SELLER shall have the right to immediately terminate the Purchase Order and any other Purchase Orders with BUYER, without prejudice to damages against BUYER.
15. SELLER TRADEMARKS. BUYER acknowledges its awareness of the fact that SELLER is the sole and exclusive owner of all trademarks, marks, service marks, tradenames, logos, symbols, trade dress or other intellectual property relating to, used in connection with, or derived from, "SELLER" (the "Trademarks"). BUYER shall use and display the Trademarks only in such form and manner as provided by SELLER or as specifically approved in writing in advance by SELLER, including without limitation, use of the Trademark on advertising, promotional or publicity materials, point-of-sale displays, websites, stationary or business cards and shall not use the Trademark on any such items unless so approved. BUYER may not register any similar trademarks, marks, logos, trade dress or symbols. BUYER acknowledges the exclusive right, title and interest of SELLER in and to the Trademarks, and shall not at any time contest or in any way impair such right, title and interest, or indicate to the public in any manner whatsoever that BUYER has or has ever had an interest in the Trademarks other than the right to use them as specified herein. BUYER shall not attempt to acquire any rights in connection with the Trademarks or other intellectual property of SELLER. Any use by BUYER of the Trademarks shall not in any way create any right, title or interest in or to the Trademarks or any other intellectual property of SELLER. Upon written notice by SELLER, BUYER shall immediately discontinue any and all use of the Trademarks, and shall, within five (5) business days of such termination, return to BUYER or destroy any printed material, and all signs, upon which any of the Trademarks appear in any form whatsoever. Should BUYER fail to comply with these obligations, SELLER shall have the right to immediately terminate the Purchase Order and any other Purchase Orders with BUYER, without prejudice to damages against BUYER. BUYER shall not be permitted to use the Trademarks in any way online whether for the purposes of promoting or selling the Goods.
16. ADVERTISING MATERIAL. BUYER agrees to use only the advertising and promotional material provided by SELLER to advertise and promote the Goods. Advertising and promotional material (including but not limited to display units, signs, slogans, photographs and posters) provided to BUYER by SELLER for the advertising, promotion and presentation of the Goods (the "Promotional Material") is acknowledged by BUYER to have been provided on loan by SELLER for BUYER'S limited use only, and shall at all times remain the property of SELLER. Any form of reproduction or use of the Promotional Material outside BUYER'S sales outlet or any other form of unauthorized use of the Promotional Material by BUYER (in particular, any such use on internet sites or any other form of electronic media), is strictly prohibited without the prior written authorization of SELLER. At the request of SELLER, and in any case, after three (3) months from the last delivery of Goods to BUYER, BUYER shall immediately return all Promotional Material and any and all other material supplied to BUYER by SELLER without delay, and shall also remove all reference to SELLER, the Goods and Intellectual Property (as defined below) from its property, including but not limited to sales outlets, offices, showrooms and warehouses. In the event any of such Promotional Material (or other SELLER related promotional products or media) may have been purchased by the BUYER, then SELLER shall reimburse BUYER the cost of purchase of such material to the BUYER. BUYER shall return all such material immediately upon SELLER'S request.
17. ABSENCE OF EXCLUSIVE RIGHTS. Neither these General Conditions, nor any other agreement, either oral or written, present or future, between SELLER and the Buyer, is to be intended to form an exclusive agreement in favor of the BUYER or an obligation for SELLER to transact business exclusively with BUYER. SELLER is, and shall remain, entirely free to negotiate with any other party that may be interested in purchasing the Goods.
18. PROPRIETARY RIGHTS AND CONFIDENTIAL INFORMATION. All rights in design, trade names, trademarks, patents and copyrights of SELLER (the "Intellectual Property") used on or in connection with the Goods are proprietary and shall remain the exclusive property of SELLER. BUYER shall not either directly or indirectly reproduce or simulate, or cause or allow anyone to reproduce or simulate, any Intellectual Property. No right in pattern and design with respect to the Goods hereunder passes to the BUYER. Any form of reproduction or use of the Intellectual Property (or any other distinguishing marks applied to the Goods) including but not limited to use outside BUYER'S sales outlet and for purposes other than those agreed by SELLER (particularly with respect to internet sites or any other forms of electronic sales), is strictly prohibited without the prior written authorization of SELLER. BUYER is expressly prohibited from removing, suppressing or in any way altering the "SELLER" trade marks, labels and other distinguishing marks and Intellectual Property applied to the Goods, and from applying new trade marks, or labels of distinguishing marks of any other type to the Goods. BUYER agrees that it shall never challenge or encourage anyone to challenge SELLER'S ownership of or the validity of the Intellectual Property or any variation or derivations thereof or any application for registration thereof. BUYER shall not, at any time, knowingly or intentionally, engage in any activity or perform or permit any act which may in any way adversely affect any rights of SELLER to the Intellectual Property or any registrations or applications for registration thereof or which may directly or indirectly reduce the value of the Intellectual Property or derogate or detract from the repute thereof.
19. WAIVER; MERGER; MODIFICATION. No failure of SELLER to insist upon strict compliance by BUYER with these Terms and Conditions or to exercise any right accruing from any default of BUYER shall impair SELLER'S rights in case BUYER'S default continues or in case of any subsequent default by BUYER. SELLER'S salespeople may have made oral statements about the Goods. Such statements do not constitute warranties, shall not be relied on by BUYER and are not part of any order or agreement. These Terms and Conditions may be modified only by a writing signed by an authorized representative of SELLER.
20. GOVERNING LAW / ARBITRATION. These Terms and Conditions shall be governed by the laws of the State of New York applicable to contracts made and to be performed in that state. Any controversy or claims arising out of or relating to any sale hereunder shall be determined and settled by arbitration in New York City, in accordance with the Commercial Rules of the American Arbitration Association by a panel of three (3) arbitrators. The parties agree that the arbitrators shall have the power to award damages, injunctive relief and reasonable attorneys' fees and expenses to any party in such arbitration. The arbitration award will be final as between the parties and judgment thereon may be entered in any court of competent jurisdiction. Any party hereto may make an application for the issuance of a temporary restraining order and/or preliminary injunction from any court of competent jurisdiction pending the determination of any controversy pursuant to the arbitration provisions set forth in this Article. The parties hereby consent and submit to the personal jurisdiction of the United States District Court for the Southern District of New York and any New York State court of competent jurisdiction located in New York County, New York in any suit, action or proceeding brought in connection with arbitration hereunder.
21. STATUTE OF LIMITATIONS. Any action for breach of contract hereunder, except for actions by SELLER to collect sums due for Goods sold and delivered, must be commenced within one (1) year of accrual.
22. SEVERABILITY. If any provision of these Terms and Conditions shall, to any extent, be invalid or unenforceable, the remainder of these Terms and Conditions shall not be affected.