Pearl Technologies INC.
Terms and Conditions
These TERMS AND CONDITIONS apply to the purchase of Punches, related Custom Punches, Machine Attachments and Parts, Products, Custom Product, related holders, assemblies and components or accessories (individually or collectively, the “PRODUCTS”) from PEARL TECHNOLOGIES or any of its subsidiary or affiliated corporations, including WMK Sheffield, England; WMK Indore India or TGW International, Wilder, KY as specified in each Quotation (as defined below) (each herein referred to as “Pearl Technologies”). Accordingly, all Quotations, Purchase Orders, bills of lading, and invoices for the PRODUCTS or any delivery of the PRODUCTS, including any services related thereto, shall incorporate these TERMS AND CONDITIONS of Sale (“TERMS AND CONDITIONS”) which together shall constitute the entire agreement the buyer of the PRODUCTS (as hereinafter defined “BUYER”) and PEARL TECHNOLOGIES. These TERMS AND CONDITIONS are between PEARL TECHNOLOGIES and the BUYER identified in the Quotation.
“PEARL TECHNOLOGIES Factory” means any manufacturing facility designated by PEARL TECHNOLOGIES from time to time to manufacture the PRODUCTS for BUYER.
“Delivery” means shipping of the standard PRODUCT or CUSTOM PRODUCT.
“Quotation” means a written document provided by PEARL TECHNOLOGIES or a PEARL TECHNOLOGIES representative to BUYER which shall set forth the description of the PRODUCTS, the quantity of PRODUCTS offered by PEARL TECHNOLOGIES, the price for the PRODUCTS, the address of delivery, expected delivery date(s), and any other applicable specific terms.
“Purchase Order” means the written document provided by BUYER based on the commercial terms specified in the Quotation.
“Specifications” means the technical specifications of PEARL TECHNOLOGIES regarding the PRODUCTS and their components.
“Taxes” means all taxes, duties, charges or levies by any multinational, federal, provincial, state, municipal, local or other governmental or public department, central bank, court, commission, board, bureau, agency or quasigovernmental body, including goods and services taxes, sales taxes and harmonized sales taxes, which are now applicable or which may be imposed in the future.
2. Acceptance and Offer
PEARL TECHNOLOGIES offers are open for acceptance within the period stated by PEARL TECHNOLOGIES in the offer or, when no period is stated, within thirty (30) days from the date of the offer, but any offer may be withdrawn or revoked by PEARL TECHNOLOGIES at any time prior to the receipt by PEARL TECHNOLOGIES of BUYER’s acceptance thereof. All Purchase Orders must be made in writing. PEARL TECHNOLOGIES will determine the minimum order value applicable from time to time. A surcharge may be applied for orders of less than the minimum order value. An engineering fee may be applied to orders for custom parts or equipment. PEARL TECHNOLOGIES reserves the right to apply a cancellation fee for any item that has been put into production and for any custom item that has been engineered or put into production prior to cancellation. PEARL TECHNOLOGIES reserves the right to apply a restocking fee to any returned items. PEARL TECHNOLOGIES reserves the right to amend offer pricing where a material change in manufacturing costs or exchange rates becomes apparent. All orders and shipments for custom parts or products are non-cancellable and non-returnable.
3. Quoting and Pricing
PEARL TECHNOLOGIES Quotations are to be treated as invitations and not offers to sell. All Quotations are subject to these Terms and Conditions. Orders submitted in the terms of our Quotations will not be binding until accepted by PEARL TECHNOLOGIES. The price offered is based on the quoted quantities only and upon the quantities referred to in the offer. PEARL TECHNOLOGIES reserves the right to amend the prices in line with the price list. All information on order confirmations are deemed correct unless notified otherwise to Customer Service within 1 business day. The customer must notify PEARL TECHNOLOGIES of a pricing claim, in writing, within twenty-one (21) working days of invoice date. After this time period no claims can be entertained. PEARL TECHNOLOGIES undertakes to investigate, and credit where appropriate, Prices in any offer, confirmation or agreement are in the currency of the United States of America (USD), based on delivery ex-works or as otherwise designated by PEARL TECHNOLOGIES, unless agreed otherwise in writing between BUYER and PEARL TECHNOLOGIES. PEARL TECHNOLOGIES will add Taxes where PEARL TECHNOLOGIES is required or enabled by law to pay or collect them, the value of which will be paid by BUYER together with the price.
- Unless otherwise agreed to in writing by PEARL TECHNOLOGIES, terms of payment for orders will be net thirty (30) days from the date of The terms of payment are subject to review of BUYER’s credit by PEARL TECHNOLOGIES. All payments shall be made to the designated PEARL TECHNOLOGIES address as stated on the invoice. If deliveries are made in installments, each installment may be separately invoiced and shall be paid for when due. No discount is allowed for early payment unless agreed to in writing by PEARL TECHNOLOGIES.
- In addition to any other rights and remedies PEARL TECHNOLOGIES may have under applicable law, interest will accrue on all late payments at the rate of eighteen percent (18%) per annum or the applicable statutory rate, whichever is higher and to the extent permitted by applicable law, from the due date until payment is
- In case of different mutually agreed INCOTERMS, all deliveries of PRODUCTS agreed to by PEARL TECHNOLOGIES shall at all times be subject to credit approval of PEARL TECHNOLOGIES. If, in PEARL TECHNOLOGIES’s judgement, BUYER’s financial condition at any time does not justify production or delivery of PRODUCTS on the above payment terms, PEARL TECHNOLOGIES may require full or partial payment in advance or other payment terms as a condition to delivery, and PEARL TECHNOLOGIES may suspend, delay or cancel any credit, delivery or any other performance by PEARL TECHNOLOGIES.
- In the event of any default by BUYER in the payment of any fees or charges due, or any other default by BUYER, PEARL TECHNOLOGIES shall have the right to refuse performance and/or delivery of any PRODUCTS until payments are brought current and PEARL TECHNOLOGIES may suspend, delay or cancel any credit, delivery or any other performance by PEARL TECHNOLOGIES. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under the Agreement or at
- Payment method will be agreed upon before order In case of payment by check, a $50 returned check fee will be assessed for any check returned for any reason. Accounts that are in arrears due to a returned check may be suspended until the balance is paid in full, including returned check and reactivation fees.
5. Delivery and Quantities
- PRODUCTS shall be delivered ex-works (in accordance with Incoterms 2010: EXW) or as otherwise designated by PEARL TECHNOLOGIES, unless otherwise agreed in Delivery dates communicated or acknowledged by PEARL TECHNOLOGIES are approximate only, and PEARL TECHNOLOGIES shall not be liable for, nor shall PEARL TECHNOLOGIES be in breach of its obligations to BUYER, for any delivery made within a reasonable time before or after the communicated delivery date. PEARL TECHNOLOGIES agrees to use commercially reasonable efforts to meet the delivery dates communicated or acknowledged by it on the condition that provides all necessary order and delivery information sufficiently prior to such delivery date.
- BUYER will give PEARL TECHNOLOGIES written notice of failure to deliver and thirty (30) days within which to If PEARL TECHNOLOGIES does not deliver within such thirty (30) day period, BUYER’s sole and exclusive remedy is to cancel the affected and undelivered portions of the Agreement.
- Title in the PRODUCTS and Risk of loss in the PRODUCTS shall pass to BUYER upon delivery to the first carrier at the PEARL TECHNOLOGIES manufacturing
- If BUYER fails to take delivery of PRODUCTS ordered, then PEARL TECHNOLOGIES may deliver the PRODUCTS in consignment at BUYER’s
- In the event PEARL TECHNOLOGIES production is curtailed for any reason, PEARL TECHNOLOGIES shall have the right to allocate its available production and PRODUCTS, in its sole discretion, among its various customers and as a result may sell and deliver to BUYER fewer PRODUCTS than specified in the Agreement, as the case may
- On custom and non-stocked items, PEARL TECHNOLOGIES reserves the right to ship reasonable amounts above or below the order quantities.
6. Force Majeure
If by reason of any fact, circumstance, matter or thing beyond the reasonable control of PEARL TECHNOLOGIES, PEARL TECHNOLOGIES is unable to perform in whole or in part any obligation under this agreement, PEARL TECHNOLOGIES shall be relieved of that obligation under this agreement to the extent and for the period that it is so unable to perform and shall not be liable to BUYER or any other third parties in respect of such inability.
7. Information and Drawings
All descriptive specifications, illustrations, drawings, data, dimensions and weights furnished by PEARL TECHNOLOGIES or otherwise contained in catalogues, price lists and other advertising matter of PEARL TECHNOLOGIES are approximate only and are intended to be by way of a general description of the goods and shall not form part of the contract. Information is subject to change at any time at PEARL TECHNOLOGIES’s sole discretion.
LIMITED WARRANTY AND INDEMNITY
8.1 General limitation of Warranty. Manufacturer’s Limited Warranty for the Products and Custom Products is posted on the Manufacturer’s website at www.pearltechinc.com. OTHER THAN THE LIMITED WARRANTIES ATTACHED HERETO AS ADDENDUM A, ALL OTHER WARRANTIES ARE EXPRESSLY EXCLUDED AND DISCLAIMED INCLUDING, WITHOUT LIMITATION, EXPRESSED AND IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OF TRADE, OR COURSE OF PERFORMANCE. PEARL TECHNOLOGIES’ LIABILITY TO BUYER ARISING OUT OF OR RELATING TO ANY PRODUCTS SHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID BY BUYER TO PEARL TECHNOLOGIES FOR SUCH PRODUCTS. IN NO EVENT WILL PEARL TECHNOLOGIES BE LIABLE FOR LOST USE, PROFITS, REVENUE, COST OF PROCUREMENT OF SUBSTITUTE GOODS, OR ANY OTHER SPECIAL, INDIRECT, RELIANCE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER PEARL TECHNOLOGIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. It is understood and agreed that BUYER shall be solely responsible for warranty terms or obligations that BUYER grants to third party beyond those provided hereof by PEARL TECHNOLOGIES. PEARL TECHNOLOGIES shall have no liability under any limited warranty, unless PEARL TECHNOLOGIES is notified in writing promptly upon Buyer’s discovery of the defect and the defective items are returned to PEARL TECHNOLOGIES or its distributors via a return merchandise authorization, freight prepaid, and received by PEARL TECHNOLOGIES or its distributors not later than ten (10) days after expiration of the warranty period specified in the applicable Addenda attached hereto.
BUYER acknowledges that all technical, commercial and financial data disclosed to BUYER by PEARL TECHNOLOGIES is the confidential information of PEARL TECHNOLOGIES. BUYER shall not disclose, release or sell any such confidential information to any third party and shall not use any such confidential information for any purpose other than to use and implement the PRODUCTS for its own business purpose or as agreed by the parties in writing.
- If a court of competent jurisdiction holds any provision, or part of any provision, of these TERMS AND CONDITIONS to be illegal or invalid, the provision, or the affected part of such provision, shall be null and void and deemed automatically severed from these TERMS AND CONDITIONS. Any such determination shall not affect the legality or validity of the remaining provisions or remaining parts or unaffected provisions of these TERMS AND CONDITIONS.
- Commencement of Except for actions for non— payment, neither the BUYER or PEARL TECHNOLOGIES may commence an action under these TERMS AND CONDITIONS more than two (2) years after the occurrence of an event of default, or in the event such default is not discoverable by the injured party when it has occurred, more than two (2) years after such default could, and in the exercise of due diligence, would have been discovered.
- Entire Agreement. These TERMS AND CONDITIONS and the related Quotation or Purchase Orderconstitute the entire agreement between the parties regarding the subject matter, and supersedes all prior discussions or agreements related to the
- Governing Law. These TERMS AND CONDITIONS will in all respects be governed by the following: (a) if BUYER is located in the United States or any part of the world other than those noted in (b) or (c) below, these TERMS AND CONDITIONS will in all respects be governed by laws of the State of New York; (b) if BUYER is located in Europe, these TERMS AND CONDITIONS will in all respects be governed by the laws of England; and (c) if BUYER is located in Asia, these TERMS AND CONDITIONS will be governed by the laws of the Republic of The parties expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods and all implementing legislation thereunder.
Any and all controversies, claims, or disputes arising out of, relating to, or resulting from BUYER’s purchase of PRODUCTS or this Agreement, shall be subject to binding arbitration under the Arbitration Rules set forth in Mass. Ann. Laws ch. 251, Section 1 et seq. (the “RULES”) and pursuant to New York law. BUYER agrees to arbitrate any and all common law and/or statutory claims under local, state, or federal law, except as prohibited by law. BUYER also agrees to arbitrate any and all disputes arising out of or relating to the interpretation or application of this Agreement to arbitrate, but not to disputes about the enforceability, revocability or validity of this Agreement to arbitrate or any portion hereof or the class, collective and representative proceeding waiver herein. With respect to all such claims and disputes that BUYER agrees to arbitrate, BUYER hereby expressly agrees to waive, and does waive, any right to a trial by jury. BUYER further understands that this Agreement to arbitrate also applies to any disputes that the PEARL TECHNOLOGIES may have with BUYER. BUYER agrees that the arbitrator shall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or adjudication and motions to dismiss and demurrers, prior to any arbitration hearing. BUYER agrees that the arbitrator shall issue a written decision on the merits. BUYER also agrees that the arbitrator shall have the power to award any remedies, including attorneys’ fees and costs, available under applicable law. BUYER agrees that the arbitrator shall administer and conduct any arbitration in a manner consistent with the Rules, including the New York Rules of Civil Procedure, and that the arbitrator shall apply substantive and procedural New York law to any dispute or claim, without reference to rules of conflict of law. BUYER further agrees that any arbitration under this agreement shall be conducted in Wayne County, New York. Except as provided by the Rules, arbitration shall be the sole, exclusive, and final remedy for any dispute between BUYER and PEARL TECHNOLOGIES. Accordingly, except as provided for by the Rules, neither BUYER nor PEARL TECHNOLOGIES will be permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding, the arbitrator will not have the authority to disregard or refuse to enforce any lawful PEARL TECHNOLOGIES policy, and the arbitrator shall not order or require PEARL TECHNOLOGIES to adopt a policy not otherwise required by law which PEARL TECHNOLOGIES has not adopted. PEARL TECHNOLOGIES may also petition the court for injunctive relief where either party alleges or claims a violation of any agreement regarding trade secrets, or confidential information, or a breach of any restrictive covenant. BUYER acknowledges and agrees that BUYER is executing this Agreement voluntarily and without any duress or undue influence by PEARL TECHNOLOGIES or anyone else. BUYER further acknowledges and agrees that BUYER has asked any questions needed for BUYER to understand the terms, consequences and binding effect of this Agreement and fully understand it, including that BUYER is waiving BUYER’s right to a jury trial.
PEARL TECHNOLOGIES LIMITED WARRANTY FOR PRODUCTS
PEARL TECHNOLOGIES warrants that the PRODUCTS manufactured, distributed or sold by it will (i) be free of any claim of ownership by third parties, (ii) be free from defects in materials and workmanship under normal use, handling, warehousing and service. The warranty period specified herein for the PRODUCTS will be for a period of thirty (30) days from the shipment date of any such PRODUCTS sold by PEARL TECHNOLOGIES. Should PRODUCTS fail to operate in accordance with this warranty, PEARL TECHNOLOGIES will, at its sole discretion, repair or replace such PRODUCTS, freight prepaid, or credit Buyer for the purchase price, subject, for the sake of clarity, to the limited warranty in the Terms and Conditions. PEARL TECHNOLOGIES reserves the right to test the returned PRODUCT prior to issuing any credit or replacement PRODUCT, as applicable. In the event that credit has been issued or replacement PRODUCT sent and PRODUCT, as applicable, is found to be not defective, PEARL TECHNOLOGIES reserves the right to reverse the credit or invoice customer for any replacement PRODUCT and pre-paid freight charges previously paid by PEARL TECHNOLOGIES for returned PRODUCT, as applicable. In the event PRODUCTS have been discontinued or PRODUCTS are no longer available, PEARL TECHNOLOGIES may substitute with a comparable item. For purposes of clarity, as it pertains to PRODUCTS, “repair or replace such PRODUCT or the defective part” does not include any removal or reinstallation costs or expenses, including without limitation labor costs, cost of access, or other expenses.
SPECIFIC LIMITATION OF WARRANTY
The limited warranty of PEARL TECHNOLOGIES does not apply to PRODUCTS which are (a) incorporated into any third-party product, instrument or device; (b) identified by PEARL TECHNOLOGIES as prototypes or pre- production PRODUCTS; (c) the object of modifications or customizations meeting the Specifications provided by the BUYER; (d) items dissembled, repaired, modified or altered by any party other than PEARL TECHNOLOGIES; (e) items used in conjunction with equipment not provided by, or acknowledged as compatible by, PEARL TECHNOLOGIES; (f) subjected to unusual physical, thermal, or electrical stress; (g) damaged due to improper installation, misuse, abuse, contamination, operation or storage or exposure to improper electrical values, operating ranges and environmental conditions; (h) damaged due to accident or negligence in use, storage, transportation or handling; (i) products manufactured or sold by PEARL TECHNOLOGIES that are made available to the customer or market under a separate or private label; or (j) where any damage or failure to perform is a result of an Act of God or use in violation of any applicable standard, code or instructions for use in the applicable country of sale. This limited warranty for PRODUCTS shall become void in the event any repairs or alterations not duly authorized in writing by PEARL TECHNOLOGIES are made to the PRODUCTS, as applicable, by any person.