PINET INDUSTRIE SALES TERMS AND CONDITIONS (FOR USA/CANADA)
The following Terms and Conditions ("Terms") are applicable to all products (the "Products") sold by PINET INDUSTRIE SAS, a company incorporated under the laws of France with registered office located at 9 rue de l’étang, ZI Paris Nord 2, 93290 Tremblay-en-France, France (the "Seller"), to any individual or entity placing orders to Seller or making use of the Products (the "Buyer"). The acceptance of any order is expressly conditioned upon the Buyer’s consent to these Terms. No interlineations, deletions, modifications or amendments to these Terms shall be binding on the Seller unless agreed to and accepted in writing by the Seller.
All sales are subject to written confirmation by the Seller. If the Seller does not respond within ten (10) days following the receipt of an order from the Buyer, the order is not accepted.
Receipt by the Buyer of the Seller’s acceptance of an order, the acceptance of a quote by the Buyer, and/or the signing or tender of a purchase order shall each constitute the Buyer’s entire acceptance of these Terms.
These Terms shall supersede any and all terms of the Buyer and the Buyer agrees to waive its own specific and general terms and conditions mentioned in its own purchase orders, invoices, letters or business documents.
These Terms may be amended at any time. Amended versions of these terms may be found online at http://www.pinet-webstore.com.
II. PRODUCT PRICE QUOTATIONS
The quotations or tenders are noncommittal and non-binding in nature. The Seller shall have the right to change the price of any Products without prior notice until the order is accepted by the Seller.
The price does not include any present or future Federal, State or Local property, sales, use, excise, license, gross receipts or other taxes or assessments which may be applicable to, imposed upon or result from this transaction or any services performed in connection with these Terms and/or the Products. The Buyer agrees to pay any such taxes or reimburse payment of such taxes by the Seller within ten (10) days after the Buyer is notified that such payment was made by the Seller. Shipment and transportation costs are to be provided and paid at the time the order is placed.
Unless otherwise stated, the Products are manufactured in compliance with the NF E 02-352 standards.
The weights, dimensions, capacities, performance ratings, characteristics and other data on the Seller’s websites, catalogs, prospectus, circulars, advertisements, price lists and instructions sheets (the "Data") are mentioned only as general information. They are only approximate and shall not bind the Seller. The Seller reserves the right to change any Data without prior notice. The Seller further reserves the right to change any Data, modify or improve Products it judges necessary without notice and without liability to the Buyer.
All Products are subject to availability.
Unless otherwise specified by the parties in writing, the Products are to be delivered "Delivered duty paid", at the Buyer’s place of business (as "Delivered duty paid"/ DDP is defined by Incoterms 2010). In the event the Buyer requests special shipment or routing, extra packing, or any other special requests, the Buyer agrees to pay any and all charges resulting therefrom, including shipping and transportation charges. The burden of legal risks and shipping expenses shall be shifted to the Buyer and Seller shall not be responsible for any damage in shipment in the event the Product is to be shipped pursuant to a method, agency of transportation and routing designated by the Buyer.
IV. DELAYS IN DELIVERY
Any specific delivery or, where applicable, shipping date designated in writing signed by the Seller shall be interpreted as estimated and in no event shall dates be construed as falling within the meaning of "time is of the essence". The Seller shall not be responsible for any delays in filling orders, nor shall it be liable for any loss or damages resulting from such delays.
If a specific delivery or, where applicable, shipping date is specified in the order and agreed to by the Seller, then the Seller shall not be liable for any delays in filling such order caused by delays resulting from any and all conditions beyond the control of the Seller, including but not limited to, (a) accidents to or malfunctions of the Seller’s or the Seller’s subcontractors’ or suppliers’ machinery; (b) differences with employees, strikes, or labor shortage; (c) fire, floods, hurricanes or other natural disaster; (d) supplier or subcontractor delays, including any quantity or quality defects; (e) delays caused by an instrumentality of the United States Government or any government or any agency; (f) delays in transportation; (g) restriction imposed by any governmental regulation, whether valid or invalid; or other cause beyond the control of the Seller, or any condition without the sole fault or negligence of the Seller. All of the foregoing events, (a) through (g), shall be considered Force Majeure.
If a specific delivery or shipping date is specified in the order and agreed to by the Seller, the specific delivery or shipping date shall only begin running from the moment the Seller has confirmed the order.The various authorizations (import license, foreign exchange transfer authorization, etc.) must have been previously obtained by the Buyer. Any modification of an order being executed, if accepted by the Seller, shall lead to an extension of the delivery or shipping date provided according to terms to be communicated by the Seller to the Buyer.
Under no circumstances shall the Buyer or the Buyer's customer be entitled to any damages for the Seller's failure to deliver or, where applicable, ship on time, and the Buyer agrees to indemnify, defend and hold the Seller harmless against any costs and expenses related to any claims for lost profits or other consequential damages based on the Seller's failure to deliver timely.
If the Buyer does not accept or pick up the Products at the date specified in the order or later agreed to by the Seller, the delivery of the Products shall nevertheless be deemed accepted by the Buyer who shall therefore pay for the Products delivered. The storage of the Products arranged by the Seller will be at the risk and expense of the Buyer. The Seller shall further be entitled, to the exclusion of any other remedy for the Buyer’s failure to take the Products, to recover any expenses incurred in executing the order which are not covered by payments received for the Products delivered.
Unless otherwise stated, the price quoted by the Seller is to be paid at the time the order is placed. In the event the order is not accepted by the Seller, the Buyer will be reimbursed. The Seller only accepts payment by debit or credit cards via PayPal. Unless otherwise stated, no Products will be shipped until Seller receives full payment for the order and shipment and transportation costs by cleared funds.
In the event the Buyer requires that payment be made at a later date, the Buyer is required to contact Seller’s sales team. In the event the Seller agreed in writing that payment shall be made after the Products were shipped, and payment is not received at such time as provided by the Seller interest shall be due at the rate of one and one half percent (1.5%), or the maximum permitted by law, on the unpaid portion of the invoice sum for each period of thirty (30) days or part thereof from the due date. Seller has the right to refuse to deliver goods or services if the Buyer is past due on any of its debts to the Seller. Furthermore, the Seller shall have the right to retake all Products immediately unless other written arrangements have been made concerning payment only if the Buyer is past due. The Buyer agrees to make all Products available, shipping ready, for the Seller, within five (5) days of receiving notice from the Seller of its intention to retake the Products.
The Buyer shall pay all of the Seller's costs of collection of any amounts past due, including, but not limited to, attorneys' fees, court costs, witness fees, travel and lodging, etc. The Seller will be entitled to apply payments made by the Buyer first to pay those claims it deems appropriate, including interest, late charges, costs of collection, etc.
The Buyer, or its affiliates or assignees, will not be entitled to suspend its payment obligations to the Seller, claim any right to compensation and/or to offset its payment obligations with any obligations of the Seller to the Buyer, with such obligations being those set forth in these Terms or other purchase contract between the Buyer and the Seller. The Buyer will not be entitled to dissolve the contract with the Seller if the Buyer is in default.
If the Buyer does not fulfill its payment obligations to the Seller completely or within the applicable payment period, the Seller will be entitled to suspend its obligations to the Buyer completely and/or not to perform them.
VI. SECURITY INTEREST
This Section is only applicable where payment was not made at the time the order is placed.
In order to protect and secure payment of all debts due and owing from the Buyer and until the Seller has been paid in full, Buyer hereby grants to Seller a security interest in the Products, and all proceeds and all accounts receivables resulting from the sale of the Products. In connection therewith, the Buyer hereby authorizes the Seller to take all necessary steps to file such financing statements and exhibits with the proper authorities, including the filing of a UCC-1 financing statement.
Until the Buyer has paid for the Products in full, the Buyer shall not pledge, mortgage, encumber, or create or suffer to exist a security interest in the Products in favor of any person other than the Seller unless written approval of such other security interest is given by the Seller. Additionally, the Buyer agrees to keep the Products insured to their full value until payment is received by the Seller. In the event the Buyer sells the Products to a third party before payment in full is received by the Seller, the Buyer agrees to secure its security interest in the Products at the time of sale to its customer in order to protect the Seller’s interests to the greatest extent possible.
VII. INSPECTION; RETURNS POLICY
Unless the Seller receives a written complaint with full particulars from the Buyer regarding any defective Products or other complaints within fifteen (15) business days from the date the Products are delivered, the Products shall be deemed to have been delivered in good condition and that the delivery is accepted. The Seller’s acceptance of any returned Products does not imply acknowledgment by the Seller of the reason for the return. The Products returned by the Buyer to the Seller will remain at the Buyer's risk and the Buyer will owe the agreed amounts until the Seller has credited the Buyer for the returned Products.
In no event will the Seller provide any certificate regarding the Products when products are ordered online.
VIII. LIMITED WARRANTY OF PRODUCTS
Seller warrants, for 6 (six) months after delivery, unless indicated to the contrary, that the goods, services and programs covered by this contract are produced according to usual practices, customs, standards, specifications and tolerances of trade prevailing in the country of origin at the time of production and shall be free from defects in design, material, workmanship and shall conform to the Seller’s specifications. THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. ALL OTHER WARRANTIES, AND SPECIFICALLY THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY EXCLUDED. Goods showing only minor defects, not affecting the function of the goods or program shall be accepted by the Buyer and shall not give rise to any claim against the Seller. All claims of damages of any kind during delivery are barred unless reported in writing by the Buyer to the Seller, with full disclosure of particulars within five (5) days after delivery as defined herein.
Where a defect is discovered within 1 (one) month of delivery from the Seller, the Buyer shall be entitled, at Seller's option, to either credit or replacement of the defective product. SELLER SHALL NOT BE RESPONSIBLE FOR ANY CONSEQUENTIAL, DIRECT OR INDIRECT COSTS OR LOSSES UNDER ANY CIRCUMSTANCES TO THE BUYER, ANY SUCCESSORS IN INTEREST OR ANY BENEFICIARY OR ASSIGNEE OF THESE TERMS. Seller will not replace where the defect is the result of use or handling in a manner, circumstances, or for purposes other than those that have been approved or instructed by the Seller.
The maximum liability of Seller under any circumstances shall be the price actually paid by Buyer to Seller for the good or service that is proven to be defective.
IX. INTELLECTUAL PROPERTY RIGHTS
All intellectual property rights to, ownership of, and interest in all Products, trademarks, trade names, logos, distinctive marks, designs, and other materials created and/or made available by the Seller hereunder or within the framework of the relationship between the Buyer and the Seller are vested exclusively in the Seller. The Buyer shall not reproduce, transfer, grant, assign, license or use the Products, distinctive marks, and designs and other materials created and/or made available by the Seller and/or otherwise act as maker of and/or party entitled to such rights, except in accordance with these Terms.
The Buyer shall not remove or alter indications concerning intellectual property rights and concerning the confidential nature of information from Products, services, programs, works, distinctive marks, inventions, designs, models and other materials created and/or made available by the Seller and Products delivered.
The Buyer shall not alter, or have altered, modify, or have modified, adapted or otherwise reconfigured, the Products, works, distinctive marks, inventions, designs, models and other materials created and/or made available by the Seller.
The Seller will indemnify the Buyer against claims of third parties based on the allegation that by using the Product, the Buyer has infringed the intellectual property rights of such third parties, provided that the Seller is promptly notified in writing and given authority, information and assistance with defense of the claim(s). The Seller, at its option, shall (1) procure the right of Buyer to continue to use the Product, (2) modify the Product so that it becomes non-infringing, (3) replace the Product with non-infringing equipment, or (4) remove the Product and refund the purchase price. The foregoing shall not be construed to include any agreement by the Seller to accept any liability whatsoever with respect to Buyer’s own or third party equipment, documents or materials used in combination with or related to the Product. The foregoing states the entire liability of the Seller with regard to intellectual property infringement of the Products.
The Seller makes no warranty concerning the appropriateness of the Products or services to the purposes for which the Buyer or its customer are acquiring same. Moreover, the Seller makes no warranty that the Products or services or other intellectual property of the Seller does not infringe the rights of third parties.
X. CANCELLATION PRIVILEGES
The Seller may cancel any contract if the Buyer is in default of the payment of any obligations pursuant to or any contract between the parties, or if in the sole judgment of the Seller, the Buyer's financial condition and responsibility has become materially impaired. In addition, the Seller shall have the right to recover damages for nonperformance, and any unpaid installments due on account of this or any other contract between the parties shall become immediately due and payable.
The Seller will be entitled to terminate the contract unilaterally with immediate effect, fully or in part and/or to suspend performance of its obligations under the contract with immediate effect if:
The Seller will never be liable with respect to the Buyer for any damages arising from termination of the contract or from the suspension of obligations under the contract for the aforementioned reasons.
If the contract is terminated, performance of the contract already received by the Buyer and the payment obligations of the Buyer in connection with it will remain. The amounts invoiced by the Seller for performance prior to or upon termination of the contract will be immediately due and payable after termination. The Buyer agrees to pay any of the Seller’s costs, damages, attorneys’ fees and other expenses associated with the Seller’s termination of any contract with the Buyer pursuant to the terms of this section.
XI. FORCE MAJEURE
If the Seller is temporarily unable to perform this Agreement because of Force Majeure, it will be entitled to suspend performance of the contract for as long as the Force Majeure lasts. If the Seller is permanently unable to perform any of its obligations to the Buyer because of Force Majeure, it will be entitled to cancel the specific order with immediate effect and without any damages whatsoever. The Buyer agrees to indemnify, defend and hold the Seller harmless against any claims made by third parties based on whole or in part on the Seller’s inability to perform because of Force Majeure.
XII. GOVERNING LAW
These Terms and all transactions between the Seller and the Buyer are governed by the laws of the State of Illinois in the United States, without reference to conflict of laws principles. The parties expressly opt out of and agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms.
For any and all claims, disputes, or controversies arising under, out of, or in connection with these Terms, either party shall have the right to initiate litigation in any federal or state court of competent jurisdiction located in Chicago, Illinois. Provided, however, that in the event the Seller is the plaintiff in any such action, it may bring such action before any competent court in the place where the Buyer maintains offices, does business, resides or may be found. All parties hereto hereby expressly submit to the jurisdiction over their persons of any court located in the State of Illinois and waive any objection based on jurisdictional grounds to any action brought in the State of Illinois.
XIV. ENTIRE AGREEMENT
These Terms constitute the sole terms and conditions of the contract between the Buyer and the Seller. No other terms, conditions, or understanding, whether oral or written, shall be binding upon the Seller, unless hereafter made in writing and signed by the Seller's authorized representative and, in the case of printed matter, also initialed by such representative next to such printed term or condition.
Should any provision of these Terms be judicially declared unenforceable, that provision shall be deemed stricken and the remainder shall continue in full force and effect insofar as it remains a workable instrument for effectuating the intents and purposes of the parties. The Parties further agree to renegotiate any so severed provision to bring the same within applicable legal requirements to the greatest extent possible.