PEAK BEAM SYSTEMS, INC. TERMS AND CONDITIONS OF SALE

Revised 2/27/12 | Terms & Conditions of Sale [PDF]

 

1. ORDERING PROCEDURE

Buyer will, from time to time, order products from the Seller by issuing a Purchase Order, either on Buyer’s company order form or by completing and returning a Credit Card Authorization Form, making prepayment via Wire Transfer, or making prepayment via Company Check. Upon issuing a Purchase Order, the Buyer agrees that the Seller shall commence to perform the services and/or provide the goods or service deliverables described in the Purchase Order, in accordance with the applicable Quote from the Seller, or Distribution Agreement, or Scope of Work. Upon acceptance of a Purchase Order by the Seller, a contract for sale has been made between the Buyer and Seller and the Buyer is bound by the provisions of the Purchase Order and accepts full financial responsibility.

2. PRICES

Orders are billed at prices in effect at time of shipment. Unless otherwise stated in writing and signed by an authorized company representative, all prices are FOB Seller’s factory in Edgemont, PA, U.S.A. and are subject to change without notice. All quotations are subject to correction of clerical errors and errors in calculation.

3. PAYMENT TERMS

All orders are to be prepaid unless other arrangements have been made. Delinquent accounts are subject to a service charge of 1 1/2% per month. A minimum charge of $75.00 will be imposed upon dishonor of any check tendered in payment of goods purchased from Peak Beam Systems, Inc. Additional costs and expenses (including attorney’s fees) incurred in the collection of any funds due Peak Beam Systems, Inc. shall be paid by the Buyer. If sending payment by bank wire transfer, Buyer is responsible for all bank wire fees.

4. ORDER CANCELLATIONS

Once accepted by Seller, Purchase Orders may not be cancelled, reduced, changed or suspended by Buyer without Seller’s written consent and payment of reasonable and proper cancellation charges determined by Seller. In the event of cancellation by Buyer, Buyer shall pay Cancellation Charges in an amount equal to twenty percent (20%) of the Purchase Price to compensate Seller for its overhead and lost profit.

5. SHIPMENTS

Shipment dates are approximate and are based upon prompt receipt of all necessary information. Seller shall not be liable for delays in delivery, failure to manufacture, or failure to deliver due to causes beyond its reasonable control.

Although Seller is not liable for damages to goods suffered in transit after exit from its factory, it is suggested that if these goods are delivered damaged, they not be accepted by the Buyer until the carrier’s agent has noted on the Freight Bill that nature and extent of the damage. In the same manner, if any goods are lost in transit, shortages should be noted on the Freight Bill. If there should be damage or loss of such a nature that it could not be detected until the goods were unpacked, the carrier’s agent must be called at once to make an inspection. Buyer should file a concealed damage claim stating the condition of the goods when examined. Claims for goods damaged in transit must be referred to the carrier’s claims department.

Freight and insurance charges, paid by Seller and added to the bill of the Buyer are subject to a handling charge. A document preparation charge may be added to non-U.S. shipments.

6. WARRANTY

Seller warrants that for a period of 12 months from the date of purchase that its products (except as listed below) shall be free of defects in materials and workmanship under normal use and that Seller shall, at its option, repair or replace any defective product upon the prepaid return of the product to its factory. In the case of any lamp, light bulb or other form of light source and the battery, the warranty period shall be 90 days.

The warranty only applies to defects in materials and workmanship and not to damage incurred in shipping or handling, damage due to abuse, misuse, alteration or improper application of the equipment. Damage incurred in return shipping and handling due to improper packaging is not covered.

In order to be eligible for coverage under the warranty, the equipment must have the original label with a legible serial number attached.

The foregoing warranty is in lieu of any and all other warranties whether expressed or implied. This warranty contains the entire warranty. Seller authorizes no other person or organization to modify this warranty or to assume for it any other warranty or liability concerning its products. The remedies of the Buyer set forth hereon are exclusive and the liability of Seller whether arising out of contract, negligence, strict tort, any warranty or otherwise shall not, except as expressly provided, exceed the price of the goods upon which such liability is based.

In no event shall Seller be liable for direct, indirect or consequential damages, loss of anticipated profits, loss of time or any other losses incurred by the Buyer in connection with the purchase, installation, operation or failure of operation of the product.

7. RETURNS

Returns of non-defective goods will only be accepted from the original Buyer within 90 days of sales and must be in “like new” condition. These returns are subject to a minimum restocking charge of 20% plus freight out and must be returned freight prepaid. Custom manufactured equipment is not returnable.

All returns must have a Return Materials Authorization (RMA) number. RMAs may be obtained by calling 1-610-353-8505 or E-mailing techsupport@peakbeam.com.

8. REPAIRS

All returns for repair must have a Return Materials Authorization (RMA) number. RMAs may be obtained by calling 1-610-353-8505 or E-mailing techsupport@peakbeam.com. Products in need of repair should be sent to Seller freight prepaid in accordance with the RMA form along with return shipping instructions and a brief description of the problem.

Domestic warranty repairs will be returned to Buyer freight prepaid by Seller’s choice of freight carrier. The Buyer will pay any additional freight costs for special handling or expedited freight. Non-Domestic warranty repairs will be returned to Buyer by the Buyer’s choice of freight carrier with the freight charges paid by the Buyer.

9. LIMITATION OF LIABILITY AND COMMENCEMENT OF LEGAL ACTIONS

In no event shall Seller or its subcontractors be liable for any loss, damage, cost of repairs, incidental, indirect, punitive or consequential damages of any kind, including, but not limited to loss of use of facilities and equipment or loss of profit, for any reason, whether based upon any warranty, or arising in contract, tort, negligence or strict liability or otherwise arising in connection with the design, manufacture, sale, use or repair of the Products sold hereunder. Nor shall Seller or its subcontractors be liable to Indemnify owner and/or contractor for claims for such consequential, incidental, indirect, or punitive damages. Further, in no event will Seller be liable to Buyer for more than the purchase price of the Products sold hereunder. Any action, regardless of form, arising out of this contract must be commenced by Buyer within one (1) year from the date of shipment.

10. FORCE MAJEURE

In the event of the occurrence of contingencies beyond the reasonable control of either or both of the Parties, including without limitation, war, fire, explosion, flood, strike, labor disputes, accident, breakdown, emergency repair or maintenance, riot, act of governmental authority, acts of God, or any other event interfering with the production, supply, transportation, or consumption of the goods sold hereunder, or with the supply or consumption of any raw material used in connection therewith, the obligations of the parties to perform hereunder shall be suspended, and quantities so affected may be eliminated from the contract without liability. The Party invoking Force Majeure hereunder shall give prompt notice of, and utilize best efforts to terminate or remove, the Force Majeure conditions.

11. EXPORT SALES

If transaction involves the export of items (including, but not limited to, commodities, software or technology) subject to the Export Administration Regulations, such items were exported from the United States by Seller in accordance with the Export Administration Regulations.

Buyer agrees that it will not divert, use, export or re-export such items contrary to United States law. Buyer expressly acknowledges and agrees that it will not export, re-export, or provide such items to any entity or person within any country that is subject to United States economic sanctions imposing comprehensive embargoes without obtaining prior authorization from the United States Government.

Buyer also expressly acknowledges and agrees that it will not export, re-export, or provide such items to entities and persons that are ineligible under United States law to receive such items, including but not limited to, any person or entity on the United States Treasury Department’s list of Specially Designated Nationals or on the United States Commerce Department’s Denied Persons List, Entity List, or Unverified List.

12. GOVERNING LAW

The laws of the Commonwealth of Pennsylvania shall govern the ability, effect and performance of this Policy. The Court of Common Pleas of Delaware County, PA will be the exclusive jurisdiction and venue for any and all disputes arising hereunder.

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PEAK BEAM SYSTEMS, INC. TERMS AND CONDITIONS FOR VENDORS

Revised 1/27/12 | Terms & Conditions for Vendors [PDF]

 

The following terms and conditions shall apply to all Peak Beam Systems, Inc. (PBS) purchase orders:

1. ACCEPTANCE

Please confirm receipt of a purchase order from PBS (PO) in writing and advise if there are any changes in pricing or specs. If requested delivery date cannot be met, please notify PBS in writing of anticipated delivery date.

2. PRICES AND QUANTITIES

All prices are in U.S. Dollars. Unless otherwise noted, prices should be firm fixed prices including all costs to be charged including the articles, their packaging and/or any other costs necessary to the completion of the work on the PO. As PBS is classified as a Pennsylvania manufacturer, all articles purchased (with exception of non-resalable articles like office supplies/ equipment) shall be exempt from tax as specified by Pennsylvania state tax law. A copy of PBS’s Pennsylvania Tax Exemption Blanket Form is available upon request. Shipments must be the exact amount ordered unless otherwise agreed to by PBS in writing.

3. TERMS OF PAYMENT

Payment will be made by PBS 30 days from the date of the invoice or the date the shipment is received, whichever is later, unless otherwise agreed to by PBS. Any early payment discounts will be calculated from the same date. If articles are found to be non-conforming, PBS reserves the right to withhold payment on the non-conforming articles until the non-conformance is corrected by the Vendor to the satisfaction of PBS.

4. CHANGES / CANCELLATION

Unless specified otherwise in writing by the Vendor, PBS reserves the right to make changes to or cancel a purchase order after it has been issued. PBS will provide written notice of any such changes or cancellations to the Vendor. In the event of a change to a PBS purchase order, the Vendor shall notify PBS of any changes to the price caused by the change and wait for acceptance of the revised price by PBS before proceeding.

5. NON-DISCLOSURE

Drawings, specifications, data or other intellectual property of PBS (IP) shall be kept confidential by the Vendor and only used for work under PBS PO’s unless otherwise approved by PBS in writing. Vendor shall notify PBS if any persons who will need to have access to PBS IP are not U.S. citizens in cases where the IP may be subject to export control regulations and a license may be required. The Vendor agrees to keep all PBS IP in a location that is reasonably secure and cannot be accessed by non-authorized personnel. In the event of any breach in the security of PBS IP, the Vendor will notify PBS immediately.

6. TOOLING

Any tooling or test equipment that is provided by PBS to the Vendor or fabricated by the Vendor for production of PBS-designed parts and paid for by PBS is considered property of PBS unless otherwise noted in writing on the invoice. Said tooling or equipment should not be used for purposes other than the production of parts for PBS. PBS reserves the right to collect any tooling or test equipment that was provided by or paid for by PBS from the Vendor’s premises at any time or make arrangements with the Vendor for shipping it to PBS or another location at any time and for any reason with reasonable advance notice. With the exception of tooling and test equipment that is damaged by normal use and wear, all tooling and test equipment provided by or paid for by PBS that is subsequently lost, damaged, or destroyed while in the Vendor’s care shall be repaired or replaced by the Vendor at their expense or charged by PBS to the Vendor at replacement cost.

7. WORKMANSHIP

a. PBS Designed Parts: All PBS designed parts must conform to the current revision of the drawing unless otherwise noted on our purchase order and must meet all specs, tolerances and other acceptance criteria given on the drawing and/or described on the PO.
b. Non-PBS Designed Parts: All non-PBS designed parts must meet the specs, tolerances or other criteria as specified by their manufacturer. Vendor must notify PBS of any changes made to the specs, tolerances or other criteria and receive the approval of PBS before furnishing new parts.

8. WARRANTY & INSPECTION

All articles must have a warranty against defects in material and workmanship. This warranty must survive any inspection, delivery, acceptance of, or payment made for the articles. Inspection of the articles will be made at PBS within a reasonable time period (no later than ninety (90) days after receipt of articles). All non-conforming articles, will be returned to the Vendor at the Vendor’s expense for either replacement or repair as agreed upon as the best option. In such cases, the Vendor will expedite the replacement or repair, including expedited shipping costs, at their expense if it is needed in order to meet the schedule of PBS. PBS reserves the right to return the non-conforming articles for full credit if the repair or replacement of the articles by the Vendor cannot be completed in a timely manner.

9. SAFETY DATA SHEETS (SDS)

A Material Safety Data Sheet (MSDS) is required for all chemicals, batteries or other applicable hazardous materials.

10. SHIPPING

A packing list referencing the PO number is to be included with each shipment. Domestic, non-palletized, non-hazardous shipments shall be shipped UPS Ground (or UPS Hundredweight, if applicable) on PBS account #39EW69 unless otherwise specified on PO. Hazardous, non-palletized shipments shall be shipped FedEx Ground on PBS account # 126001517. For all Palletized and/or International shipments, please contact PBS and provide shipment weight and dimensions so that best shipment method can be determined. A lift gate is required for all Palletized shipments. No deliveries will be accepted outside the PBS Receiving Department’s standard hours of 8:00AM – 4:00PM EST, Monday thru Friday. Vendor is responsible for any shipping charges incurred if PBS shipping instructions are not followed.

11. SUPPLIER INTEGRITY COMMITMENT

The Vendor commits itself to conduct its business activities in a fair, honest, ethical and lawful manner and in strict adherence to all applicable laws and regulations. The Vendor warrants that it or any of its agents will not offer or provide kick-backs or gratuities to any employee of PBS for influencing or attempting to influence the awarding of a purchase order to the Vendor.

12. INDEMNITY

a. With respect to articles delivered under the PO, the Vendor holds PBS, its agents, customers and users of its products harmless for any loss, damage or other liability caused by any infringement or alleged infringement of a copyright, trademark, patent, or other violation of intellectual property right of a third party arising out of the sale, manufacture, distribution or use of such articles by the Vendor, PBS or its agents, customers and users of its products. In the event of any such violations, the Vendor shall at its own expense defend all claims, suits and actions against PBS, its agents, customers or users of its products. This indemnification does not apply to articles manufactured to detailed designs developed and provided by PBS.
b. For all articles provided by the Vendor to PBS, the Vendor warrants that the work is free from any liens, attachments, charges, encumbrances, claims, or the like, and undertakes to hold harmless, defend and indemnify PBS from and against any claims related hereto.

13. BINDING EFFECT

The PO and the acceptance thereof shall be a contract made in the State of Pennsylvania and governed by the laws thereof.

14. ENTIRE AGREEMENT

The PO, including these terms and conditions, constitutes the entire agreement between PBS and the Vendor. This purchase order supersedes all prior negotiations, discussions and agreements between PBS and the Vendor with respect to this order. No terms and conditions of the Vendor that are inconsistent with or not included in the terms and conditions contained herein, whether on an invoice or otherwise, shall be binding on PBS unless such terms and conditions are expressly accepted in writing by PBS.

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