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in the offer or, when no period is stated, within thirty (30) days from the date of the offer, but any offer may be withdrawn or revoked by PEARL TECHNOLOGIES at any time prior to the receipt by PEARL TECHNOLOGIES of BUYER’s acceptance thereof.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.
5) DELIVERY AND 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.
ARBITRATION. 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.