These Terms of Sale apply to all sales of products by PLIANT LED, LLC (“PLIANT”) to any purchaser (“Buyer”). These terms may in some instances conflict with some of the terms proposed by Buyer. Therefore, acceptance of Buyer’s order is made only on the express understanding that to the extent that any of these terms and conditions conflict with any terms of Buyer’s order, these terms and conditions will govern. These terms will be deemed accepted by Buyer placing an order, accepting the goods, or tendering full or partial payment. PLIANT’s failure to object to provisions contained in any communication from Buyer will not be deemed a waiver of these terms. Any additions to, or deviation from these terms, must be proposed to PLIANT at its office and must be accepted in writing by an officer of PLIANT before such terms will become part of the contract. Buyer is responsible for complying with these terms and for reviewing these terms on a regular basis to ensure that Buyer is aware of changes in these terms.
Prices. All prices are subject to change and revision without advance notice. Standard quantities are either the master package quantity or the quantity required for the full discount. Orders for less than standard quantities will be billed at the prices in the Less Than Standard Quantity column regardless of the size of the total order. Orders marked HOLD or HOLD FOR RELEASE will be billed at the prices in effect on the date that shipment is requested. Buyer will pay any and all applicable sales tax or use tax, if any, plus any other applicable federal, state, or local taxes imposed on this sale, excluding tax assessed on PLIANT income.
Minimum Advertised Pricing and Internet Advertising Policy. PLIANT’s Minimum Advertised Pricing and Internet Advertising Policy is applicable to each Buyer with respect to Buyer’s advertising of PLIANT Products and the advertising and sale of PLIANT Products on the internet and is incorporated into these Terms of Sale by reference.
Authorized Distributors. PLIANT products are sold only to Buyers authorized by PLIANT to resell PLIANT products on a non-exclusive basis (“Authorized Distributors”). PLIANT may grant or terminate Authorized Distributor status in its sole discretion. Anyone placing an order who is not an Authorized Distributor will be referred to the nearest Authorized Distributor.
Shipping Costs. Products are sold FOB PLIANT’s warehouse, PLIANT will pay the freight costs on individual orders of $5,000 net or greater to one destination in the continental United States. Partial shipments made to one or more destinations at Buyer’s request must each total at least $5,000 net to qualify for prepaid shipping regardless of the size of the total order. PLIANT will use carriers of its own choice on prepaid shipments. If another means of transportation is requested, Buyer must pay transportation costs. Individual orders less than $1,000 net will be drop shipped to a destination specified by Buyer within the continental United States with all shipping costs paid by Buyer. Buyer will pay PLIANT the cost of shipment, including any export charges or taxes. All costs of insurance, documentation, and bank charges incurred in shipments will be borne by Buyer.
Delivery Date. Any estimated or firm delivery dates or periods are predictions made by PLIANT of the times within which it is likely that the products will be shipped; however, due to the difficulties inherent in predicting future delivery dates or periods, PLIANT does not promise, guarantee or otherwise obligate itself to have products shipped on or before that time. PLIANT WILL ENDEAVOR TO MEET THE ESTIMATED OR FIRM DELIVERY DATES OR PERIODS, BUT WILL NOT BE LIABLE IN DAMAGES OR OTHERWISE, NOR WILL BUYER BE RELIEVED OF PERFORMANCE, BECA– USE OF FAILURE TO MEET THEM.
Risk of Loss. Upon receipt by carrier of merchandise in good condition, title to and risk of loss for merchandise passes from PLIANT to Buyer. Claims for loss or damage during transit or storage must be made by Buyer directly to the carrier, storage company, or insurance company, if any. Claims for shortages must be made to PLIANT, 6980 Aragon Circle Suite 7, Buena Park, California 90620, in writing within 30 days of receipt of shipment.
Return Policy. Except as provided below, products may not be returned without prior written approval issued by PLIANT in its sole and absolute discretion.
Defective Goods. Return Authorization is required for pole products. The return authorization code must be included with the returned goods or the goods will be returned to Buyer at Buyer’s expense. Also include shipping instructions for return of replacement or repaired item. All requests for returns must be made within 30 days of shipment, a return authorization code is required, and all returns will be subject to a restocking charge equal to 50% of the purchase price of the products together with all other costs of PLIANT, including the costs of preparing the products for resale. All returned items must be sent to a PLIANT specified location, freight prepaid. If a product is not under warranty, Buyer should call PLIANT for the cost to repair or replacement.
Advance Replacement. If advance replacement is approved by PLIANT, Buyer will be billed and then credited upon receipt of returned goods.
Product Warranties. The PLIANT LED’s Product Warranties are incorporated into these Terms of Sale by reference and apply to all products purchased from PLIANT unless otherwise agreed in writing by an officer of PLIANT. THESE WARRANTIES ARE IN LIEU OF, AND PLIANT EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED IN FACT OR BY LAW, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, AND THE FOREGOING WARRANTIES STATE PLIANT’S ENTIRE AND EXCLUSIVE LIABILITY, AND THE BUYER’S SOLE AND EXCLUSIVE REMEDY, IN CONNECTION WITH THE, PRODUCTS OR PARTS, THEIR DESIGN, SUITABILITY FOR — USE, INSTALLATION OR OPERATION.
Limitation of Liability. PLIANT will not be liable under any theory of relief, including without limitation breach of warranty, breach of contract, tort (including negligence), strict liability, or otherwise, arising out of or related to this agreement or products provided hereunder or PLIANT’s acts or omissions for: (i) any indirect, incidental, special or consequential damages, whatsoever (including without limitation, loss of anticipated value of a business or its reputation) or (ii) any damage or loss in excess of the price actually paid by Buyer for the products that caused the damages. Any action by Buyer must be commenced within one year after the cause of action has accrued.
Intellectual Property and Relationship of Parties. Buyer acknowledges and agrees that the PLIANT Mark and all copyrights, patents and other PLIANT intellectual property are owned exclusively by PLIANT. Buyer will not adopt or attempt to register any trademark, service mark, trade name, company name, internet domain name or other proprietary designation that is identical or confusingly similar to any of PLIANT Mark. Buyer will not make, use or copy any PLIANT any material that is the same or substantially similar to any PLIANT copyright or patent. Provided that Buyer is in good standing with PLIANT and not in breach of this Agreement, and subject to compliance with the Minimum Advertised Pricing and Internet Advertising Policy, the foregoing will not prevent Buyer from: (a) accurately identifying the PLIANT products as offered for sale to consumers by Buyer provided that all such use of the PLIANT Mark by Buyer will inure to the benefit of PLIANT; and (b) using PLIANT photographs and descriptions of PLIANT products solely to promote sales of the PLIANT products. Any other use of any PLIANT Mark or PLIANT copyrighted material is prohibited without PLIANT’s prior written consent. Buyer and PLIANT are independent contractors. Buyer will not hold itself out as an agent of PLIANT or otherwise misstate or misrepresent its relationship to PLIANT.
Miscellaneous. These Terms of Sale, the PLIANT Lighting Product Warranties referenced herein, and the Minimum Advertised Pricing and Internet Advertising Policy referenced herein, constitute the entire agreement between the parties hereto with respect to the subject matter of these Terms of Sale. These Terms of Sale will be governed by the laws of the State of California. Buyer consents to the personal jurisdiction and venue of the courts of the State of California. Any legal or equitable claim of any nature arising hereunder will be filed and maintained in the state or federal courts in the State of California and Buyer agrees that such courts are a convenient forum for adjudication. In the event that suit is necessary to recover amounts owed PLIANT, Buyer will be liable for reasonable attorney’s fees, interest and costs of collection. No agreement or understanding varying the terms and conditions hereof will be binding upon either party hereto unless in writing attached hereto and signed by duly authorized representatives of both parties. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.