Terms & Conditions
These terms and conditions of sale (“Terms”) apply to all orders accepted and all sales made by ERP Power LLC (including its subsidiaries, “ERP”), including, without limitation to the sale of the Products listed in a product quotation, order acceptance or invoice issued by ERP to which these Terms are appended or which reference these Terms or any other orders of ERP Products (“Order”), unless otherwise approved by ERP in writing. “Buyer” shall mean an entity ordering the Products from ERP or an ERP authorized distributor or reseller. Buyer and ERP shall be referred to collectively as the “Parties” and each individually as a “Party”.
(a) These Terms constitute the sole and entire agreement between ERP and Buyer with respect to the sale of the Products and the subject matter hereof. Any term or condition in any Quotation, purchase order, confirmation or other document furnished by Buyer or ERP which is in any way inconsistent with, or in addition to, the Terms is hereby expressly rejected, and shall be superseded by these Terms, unless approved in writing by both Parties. Buyer undertakes to purchase Products listed in the Quotation by any deadline set forth therein and subject to minimum Quotation quantities set forth therein, if any. The parties agree that the governing language of a purchase of Products shall be English, unless otherwise agreed to by ERP. ERP may condition the acceptance of a blanket quotation or blanket purchase order upon the commitment by Buyer to a delivery schedule.
(b) Definitions. “Component” means LED drivers, LED modules or power supplies that cannot be used stand-alone and must be embedded into another manufactured product. “Product(s)” means LED drivers, LED modules or power supplies and any other products provided hereunder which may include Software (as defined below). “Service(s)” means any and all services provided by ERP as set forth in one or more written services agreement or other written agreement agreed to by the parties, including an ERP offering agreement accepted electronically by Buyer, or otherwise accessed by Buyer through the internet or other remote means (such as websites, portals and cloud based solutions). In the event of a conflict between these Terms and such separate agreement for Services, the terms of such separate agreement shall prevail. “Software” means any software, library, utility, tool or other computer or program code provided by ERP to Buyer, whether installed locally on the Product hardware or otherwise accessed by Buyer through the internet or other remote means (such as websites, portals and cloud-based solutions), including any related documentation. “Materials” means all content and other items included with or as part of the Products, Software or related deliverables, tangible or intangible, including reports, studies, base cases, drawings, findings, manuals, procedures and recommendations prepared by ERP or its suppliers, licensors or subcontractors in the course of performing any Services or otherwise, text, graphics, logos, button icons, images, audio clips, information, data, photographs, graphs, videos, typefaces, music, sounds and software. “Third Party Products” means any non-ERP-branded products, Software or services sold by ERP to Buyer or made available to Buyer in conjunction with any Product.
- PRICES AND PAYMENT TERMS:
The sale price(s) of the Products are as set forth in the Quotation, invoice or in the applicable ERP price list and are subject to change. Payment terms are listed in Appendix A and shall be paid in U.S. Dollars, unless otherwise set forth in the invoice or agreed to by ERP in writing. If Buyer purchases a multi-year Software license and related support, Services and/or maintenance, and ERP and Buyer (or if applicable, the third-party licensor if a Third Party Product) agree to annualize Buyer’s purchase over the term of the license, Buyer shall make all annual or monthly payments, as the case may be, in full and such purchase is non-cancellable over the term of such license. Any invoiced amount which is not paid when due shall bear interest as outlined in Appendix A. All quotations of ERP are subject to change at any time prior to acceptance of an order and expire thirty (30) days from the date provided. Any alterations made to the order that are not consistent with the written quotation from ERP are subject to a processing fee, as outlined in Appendix A. Unless agreed by ERP in writing, any service calls or other service work performed by ERP shall be at Buyer’s expense in accordance with ERP’s rates, unless otherwise covered by the ERP Services offering subscribed to by the Buyer. The Product prices are not subject to trade or other discounts and do not include federal, state or local taxes applicable thereto. All such taxes shall be paid by Buyer unless Buyer provides ERP with evidence satisfactory to ERP of exemption from such taxes. If ERP is required by applicable law to collect such taxes, ERP will state such taxes on the invoice. In addition to any rights hereunder, ERP reserves the right to put shipments on hold, suspend or terminate any Services or refuse to license Software, if payment is not received by the due date of any invoice and until ERP receives such outstanding amounts. Buyer agrees that all invoices shall be deemed accurate unless Buyer notifies ERP of a bona fide error within thirty (30) days of the date of such invoice. In no event shall Buyer be entitled or permitted to offset, defer or deduct any amounts from the invoiced amounts unless ERP determines they are erroneous following the notification process set forth above. Refer to the Delinquent Payment Fee schedule in Appendix A for additional information.
- DELIVERY AND TITLE PASSAGE:
ERP Products are delivered according to INCOTERMS specified in the quotation. Taxes, shipping and handling and insurance charges are not included in the Product price, unless expressly set forth in a written Quotation confirmation from ERP. Title to the Product(s) (except title to Software) passes to Buyer from ERP upon shipment to Buyer. Shipping and delivery dates provided by ERP are provided as estimates only. If shipment of any Product is delayed at Buyer’s request, ERP may invoice Buyer for such Products, and Buyer shall reimburse ERP for any and all costs of storage and other fees incurred by ERP after the date that ERP is prepared to make shipment, including but not limited to the fees described in Appendix A. ERP retains a security interest in all Products and all proceeds and products thereof until all amounts due or to become due hereunder have been paid. Any repossession and removal of Products shall be without limiting any of ERP’s other remedies at law or in equity. Buyer must notify ERP in writing within fourteen (14) days from a scheduled delivery date if Buyer believes that any part of the order is missing, erroneous or damaged. Buyer is responsible for loss or damage that occurs during shipping by a carrier selected by Buyer. Neither (i) the time, method, place or medium of payment provided for herein or any combination of the foregoing, nor (ii) the manner of consignment provided for, whether for or to the order of Buyer or its agent, will in any way limit or modify the rights of ERP, as the owner of the Products, to have control over and the right to possession of the Products until the title thereto passes to Buyer as provided for above. In the event that a bank has, by reason of credit extended to Buyer or for any other reason, an interest in the shipment, it is agreed that ERP may consign the Products to said bank through the usual channels, in each such case, the full right of ownership of and control over the shipment will remain with ERP until title passes to Buyer as provided herein. The terms “ownership” and “title” as used in these Terms mean full beneficial ownership of the Products, except the Software. Refer to the Shipping & Handling Fees schedule in Appendix A for additional information.
ERP shall not be liable for delay in performance or nonperformance of any of its obligations hereunder, in whole or in part, if such performance is rendered impracticable by the occurrence of any contingency or condition beyond the control of either ERP or ERP’s suppliers, including without limitation war, sabotage, embargo, riot or other civil commotion, failure or delay in transportation, act of any government or any court or administrative agency thereof (whether or not such action proves to be invalid), labor dispute, accident, fire, explosion, flood or other casualty, shortage of labor, fuel, energy, raw materials or machinery or technical failure. If any such condition occurs, ERP may allocate production and deliveries in any reasonable manner at its discretion. ERP may revise or discontinue a Product, Software or Service offerings at any time without prior notice to Buyer should above mentioned contingencies or conditions exist.
- SOFTWARE AND SERVICES:
(a) Software is subject to the separate software license agreements accompanying the software, along with any product guides, operating manuals or other documentation included with the software media packaging or presented to Buyer during the installation or use of the Software, including any license terms with third parties related to Third-Party Products, such as any click-thru, EULAs or other acceptance methods, and Buyer agrees to be bound by such license agreement. To the extent that a Third-Party Product Software is offered by ERP in conjunction with the any ERP Product or Software and such Third-Party Software is subject to a third party license agreement, the use and support of such Third-Party Product shall be governed by the terms of such agreement between the third-party and Buyer and ERP shall have no obligations or liabilities in connection therewith. If no license terms accompany the Software, then subject to Buyer’s compliance with the terms set forth in these Terms, ERP hereby grants Buyer a personal, nonexclusive license to access and use such Software only during the term of the license as identified in the Quotation or Materials and solely as necessary for Buyer to enjoy the benefit of the Software as stated in the applicable Quotation or Materials.
(b) Buyer may not copy, modify or create a derivative work, collective work or compilation of the Software, and may not reverse engineer, decompile or otherwise attempt to extract the code of the Software or any part thereof. Buyer may not (i) license, sell, assign, sublicense or otherwise transfer or encumber the Software, (ii) use the Software in a managed-services arrangement; (iii) use the Software in excess of the authorized number of licensed seats for concurrent users, sites or other criteria specified in the applicable Quotation or Materials; (iv) access the Software to monitor its availability, performance or functionality, or for any other benchmarking or competitive purpose; (v) attempt to use or gain unauthorized access to ERP or to any third party’s networks or equipment; (vi) transmit unsolicited bulk or commercial messages; (vii) attempt to probe, scan or test the vulnerability of Software or a system, account or network of ERP or any of its customers or suppliers; (viii) interfere or attempt to interfere with service to any user, host or network; (ix) engage in fraudulent activity of any nature; or (x) permit or enable others to use or copy the Software or take any of the actions prohibited hereunder.
(c) Each license to Software will continue for the term stated in the Software license, unless otherwise terminated. ERP or a Third-Party Product provider may terminate any Software license immediately, including prior to the expiration of the term thereof, if (1) Buyer fails to make any payment when due; (2) Buyer is acquired by or merge with a competitor of ERP; (3) Buyer declares bankruptcy or are adjudicated bankrupt; or (4) a receiver or trustee is appointed for Buyer or substantially all of its assets.
(d) ERP may suspend, terminate, withdraw or discontinue all or part of the Services or Buyer’s access to the Software (and third-party Software offered as a Third-Party Product) upon receipt of a subpoena or law-enforcement request, or when ERP believes, in its sole discretion, that Buyer has breached any term hereof or an applicable Software license agreement or is involved in any fraudulent, misleading or illegal activities. With respect to Software provided or otherwise made available to Buyer by ERP in connection with the Products or related Services, it may be necessary for ERP to perform scheduled or unscheduled repairs or maintenance or remotely patch or upgrade the Software, which may temporarily degrade the quality thereof or result in partial or complete outage of the Software or Product. ERP provides no assurance that Buyer will receive advance notification of such activities or that the Services or Software will be uninterrupted or error-free. Unless otherwise agreed to in writing between Buyer and ERP, any such interruption in the Software or delivery of Services shall not give rise to a refund or credit of any fees paid. BUYER AGREES THAT THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED FOR ACCESSING AND INTERACTING WITH THE SOFTWARE, INCLUDING TELEPHONE, COMPUTER NETWORKS, CLOUD-BASED SERVICES AND THE INTERNET, OR TO TRANSMIT INFORMATION, CAN BE UNPREDICTABLE AND MAY, FROM TIME TO TIME, INTERFERE WITH OR PREVENT ACCESS TO OR USE OR OPERATION OF THE SOFTWARE. ERP SHALL NOT BE LIABLE FOR ANY SUCH INTERFERENCE WITH OR PREVENTION OF BUYER’S ACCESS TO OR USE OF THE SOFTWARE.
(e) Buyer hereby grants ERP, or a representative designated by ERP, the right to perform an audit of its use of the Software during normal business hours and agrees to cooperate with such audit and provide ERP with all records reasonably related to Buyer’s use of the Software. The audit will be limited to verification of Buyer’s compliance with these Terms.
(f) A portion of the Software may contain or consist of open source software, which Buyer may use under the terms and conditions of the specific license under which the open source software is distributed. THIS OPEN SOURCE SOFTWARE IS DISTRIBUTED IN THE HOPE THAT IT WILL BE USEFUL, BUT IS PROVIDED “AS IS” WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY REGARDING TITLE OR AGAINST INFRINGEMENT. IN NO EVENT SHALL ERP, THE COPYRIGHT HOLDERS, OR THE CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS OPEN SOURCE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
(h) Each Service and license to Software will continue for the term stated in the Service Agreement or the Software license, unless otherwise terminated. ERP may, at its sole discretion, propose to renew the Service and the Software license by sending Buyer an invoice or, subject to prior notification, continuing to perform the Service or make the Software available to Buyer. Buyer may (if permitted under applicable law) agree to such renewal of the Service and Software license by paying such invoice by its due date or by continuing to order Services or use the Software.
- LIMITED WARRANTY; SUITABILITY:
ERP warrants that its LED drivers, LED modules or power supply products (each, a “Product,” and collectively, the “Products”) will be free from defects in materials and workmanship and will perform in accordance with each Product’s specifications for a period of five (5) years from the date of manufacture by ERP (the “Warranty Period”), so long as each Product is properly installed, maintained, operated, stored and utilized (a) as specified in ERP’s specification sheet for such Product and (b) in accordance with the National Electrical Code, the Underwriters Laboratories, Inc. Standards for Safety, the Canadian Standards Association and any other national or international electrical standards or certifications overseeing the certification of such Product. Additionally, this limited warranty does not apply to any damage from or failure of any Product arising from the operation of such Product at case temperatures (as measured on the hot spot mark designated by t c on the label or on the case) in excess of the case temperature specified in each Product data sheet or from any other form of misuse, abuse, lightning, electrical surges or any cause not originating by such Product.
This limited warranty is only available to the original Buyer or first end-user Buyer of any Product (each, a “Buyer”). Following any claim made during the Warranty Period by a Buyer with respect to the failure of any Product to comply with the terms of this Limited Warranty, if a Buyer returns such Product to ERP or to ERP’s authorized re-seller of such Product, and if ERP determines through an agreed upon testing procedure that such Product is defective, then ERP shall replace such defective Product in a reasonably prompt manner. In that regard, the replacement of any Product by ERP shall be Buyer’s sole and exclusive remedy, and ERP shall not be responsible for Buyer’s costs relating to the removal of any defective Product or reinstallation of any replacement Product, including without limitation, any and all shipping, labor or other ancillary costs and expenses incurred by Buyer.
THE LIMITED WARRANTY SET FORTH HEREIN SHALL CONSTITUTE THE EXCLUSIVE REMEDY OF A BUYER AND THE SOLE LIABILITY OF ERP FOR ANY OF ITS PRODUCTS AND IS IN LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTIABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OR TRADE. UNDER NO CIRCUMSTANCE SHALL ERP BE LIABLE TO A BUYER AT LAW OR IN EQUITY UNDER ANY CLAIM FOR BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABLITY, TORT OR OTHERWISE FOR ANY LOSSES, COSTS, EXPENSES OR DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION, ANY LOST PROFITS OR REVENUE, OR ANY INCIDENTAL, PUNITVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES. ADDITIONALLY, IN NO EVENT SHALL ERP’S LIABILITY HEREUNDER EXCEED THE ORIGINAL PURCHASE PRICE OF THE PRODUCT.
UNDER NO CIRCUMSTANCES DOES ERP’S LIMITED WARRANTIES SET FORTH ABOVE APPLY TO ANY THIRD-PARTY PRODUCT, WHICH SHALL BE SUBJECT TO ANY WARRANTY PROVIDED BY THE PUBLISHER, PROVIDER, OR ORIGINAL MANUFACTURER THEREOF. ALL THIRD-PARTY PRODUCTS USED IN CONNECTION WITH ERP PRODUCTS ARE PROVIDED “AS IS.”
Buyer assumes the risk of use of each Product and agrees to indemnify ERP against and hold ERP harmless from all liability relating to (i) assessing the suitability for Buyer’s intended use of such Product, (ii) determining the compliance of Buyer’s use of such Product with applicable laws, regulations, codes and standards and (iii) from any liability, claims, loss, cost or expenses (including reasonable attorneys’ fees) attributable to Buyer’s products or representations or warranties concerning same. Buyer hereby accepts full responsibility for all warranty and other claims relating to or arising from Buyer’s products which include or incorporate any of the Products manufactured or supplied to Buyer by ERP.
ERP shall indemnify and hold Buyer harmless from any and all damages, costs and expenses arising from any suit or proceeding brought against Buyer based on a claim that any Product constitutes (i) direct infringement of any issued United States, European Union, Japan and Taiwan patents, or (ii) violates any copyright or trade secret of any third party, so long as ERP (a) is informed by Buyer in writing within ten (10) days after receipt by Buyer and furnished a copy of each communication, notice or other action relating to the alleged infringement and (b) is given all authority (including the right to exclusive control of the defense of any suit or proceeding), information and assistance necessary to defend or settle such suit or proceeding. In the event such Product or any part thereof is, in such suit, held to constitute infringement and the use of such Product or part thereof is enjoined, ERP shall, by its own election and at its own expense, either (a) procure for Buyer the right to continue using such Product, or modify it so that is becomes non-infringing or (b) remove such Product, or part thereof, and grant Buyer a credit thereon and accept its return. Under no circumstances shall ERP be liable for any costs or damages if the alleged infringement arises out of compliance with Buyer’s specifications, with any addition to or modification of the Product after delivery thereof or from use of the Product or any part thereof in conjunction with other third party goods. ERP’s obligations hereunder shall not apply to any alleged infringement occurring after Buyer has received notice of such alleged infringement unless ERP thereafter gives Buyer express written consent for such continuing alleged infringement. ERP shall not be bound in any manner by any settlement hereunder made without its prior written consent, which shall not be unreasonably withheld. If infringement is alleged prior to completion of delivery of a Product, ERP may decline to make further shipments without being in breach of this Agreement. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF ERP FOR PATENT OR OTHER INTELLECTUAL PROPERTY INFRINGEMENT AND IS IN LIEU OF ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, IN REGARD THERETO.
- LIMITATION OF LIABILITY:
NOTWITHSTANDING ANY OTHER PROVISION HEREIN OR IN ANY OTHER COMMUNICATION, (A) ERP’S LIABILITY AND OBLIGATIONS WITH RESPECT TO ANY CLAIM(S) RESULTING OR ARISING FROM OR RELATING TO THESE TERMS, INCLUDING ERP’S INDEMNITY OBLIGATIONS, WHETHER IN CONTRACT, STRICT LIABILITY, TORT OR OTHERWISE SHALL IN NO EVENT EXCEED IN THE AGGREGATE THE TOTAL PURCHASE PRICE RECEIVED BY ERP FOR THE PRODUCTS, SERVICES AND/OR SOFTWARE IN THE TWELVE (12) MONTHS PRECEDING ERP’S RECIEPT OF NOTICE OF THE RELEVANT CLAIM OR, IN THE CASE OF OBLIGATIONS RELATING TO PARTICULAR PRODUCTS OR SERVICES RENDERED IN CONNECTION HEREWITH, THE PURCHASE PRICE OF SUCH PRODUCTS AND/OR SOFTWARE RECEIVED BY ERP IN THE TWELVE (12) MONTHS PRECEDING ERP’S RECIEPT OF NOTICE OF THE RELEVANT CLAIM, AND (B) ERP SHALL IN NO EVENT BE LIABLE TO BUYER OR ANY OTHER PERSON OR ENTITY, WHETHER IN CONTRACT, STRICT LIABILITY, TORT OR OTHERWISE, FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, OR CLAIMS OF ANY THIRD PARTIES.
- ACCEPTANCE; RETURNS:
Buyer shall inspect Products promptly upon their receipt. Nonconformities visible upon receipt have to be noted on the delivery note and/or Waybill presented by the delivering carrier. Unless Buyer notifies ERP in writing within two (2) business days after the receipt of Products that the Products are nonconforming, describing the nonconformity in commercially reasonable detail, Buyer shall be deemed to have accepted the Products. Buyer may not revoke its orders or acceptance of Products and shall be barred from any remedy not explicitly set forth herein. No Products delivered and accepted under these Terms are subject to returns except upon written approval of ERP at its sole discretion and subject to these Terms.
- PROPERTY FURNISHED BY BUYER:
If Buyer furnishes any components, specifications, parts, tools, dies, jigs or other property or facilities to ERP in connection with the performance of this Agreement, Buyer shall bear all risk of loss or damage with respect to such property or facilities and shall indemnify and hold ERP harmless from and against all loss, cost, expense or liability arising in connection with its use of any such property or facilities. ERP shall not be responsible for any delay in performance or nonperformance hereunder or the failure of any Product to conform to applicable specifications resulting, in whole or in part, from ERP’s use of property or facilities furnished by Buyer. Any Non-Reoccurring Engineering (NRE) fees paid by Buyer or on its behalf to ERP or agreed to by the parties in writing are non-cancellable and non-refundable, and, unless otherwise agreed by both parties in writing, any tooling purchases by ERP shall be the sole property of ERP.
- PROPRIETARY INFORMATION AND RIGHTS:
As used herein, the term “Proprietary Information” includes any information of a confidential or proprietary nature obtained from ERP and any information obtained from ERP which is not readily available to others in the public domain. ERP retains all rights, title and interest in the Products, Software, methods by which the Services are performed, the processes that make up the Services and any Materials, all other Proprietary Information and all documentation which contains Proprietary Information, including the intellectual property (including all copyrights, patents, trademarks, trade secrets and trade dress) embodied therein and the methods and the processes incorporated therein, shall belong solely and exclusively to ERP or the applicable suppliers or licensors, and Buyer shall have no rights whatsoever in any of the above, except as expressly granted in these Terms. Buyer shall not disclose, duplicate or reproduce, modify, remove, delete, augment, add to, publish, transmit, adapt or reverse engineer, decompile or disassemble the Products, the Software or Materials or any portion thereof or any other Proprietary Information nor shall Buyer use any Proprietary Information other than in the course of exercising its rights or performing its obligations hereunder. Buyer shall take all reasonable steps to prevent the disclosure, duplication or reproduction of any Proprietary Information. Notwithstanding the foregoing, Buyer shall not be required to refrain from disclosing or using any Proprietary Information which has become known to Buyer if the original source of such Proprietary Information was not ERP or any person or party affiliated with ERP or having an obligation of confidentiality to ERP. Trademark rights of ERP are not transferred with the Products. Neither these Terms nor any purchase of Products hereunder shall be construed to confer upon Buyer or its customers any license under any patent or other proprietary rights of ERP, except the right to use such Products for the purposes for which they are sold.
- CANCELLATION AND RESCHEDULE POLICY:
See Appendix A
The following shall constitute events of default of the Buyer. If the Buyer: (a) defaults on any of its payment or other monetary obligations and such default continues for a period of ten (10) days after receipt of written notice of such default; or (b) fails to perform any other material obligations of Buyer hereunder and such failure continues for a period of fifteen (15) days after receipt of written notice of thereof; or (c) commences a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeks the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall take any corporate action to authorize any of the foregoing, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due; or (d) has an involuntary case or other proceeding commenced against it seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 45 days, or an order for relief shall be entered against it, then ERP may terminate these Terms (except for terms that by their nature survive termination) or cancel any purchase order. Termination of these Terms by ERP shall not relieve Buyer of any liability for damages or otherwise which may have been incurred by any breach hereunder. ERP’s remedies hereunder shall be cumulative, and in addition to any other remedies available to ERP at law, in equity or otherwise.
- RESALE OF COMPONENT PRODUCTS:
Buyer may not resell Component Products. ERP shall not be obligated to provide any warranty service or other technical support for any Component Products not purchased directly from ERP or its authorized distributor or reseller hereunder.
- NON-WAIVER OF DEFAULT:
No failure by ERP to insist on strict performance of any term or condition hereof shall constitute a waiver of such term or condition or any breach thereof, nor shall such failure in any way affect ERP’s legal remedies with respect to any default by Buyer hereunder.
- APPLICABLE LAW; VENUE:
This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding conflict of law rules and principles. The United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded and shall not apply. This Agreement is prepared, executed and will be interpreted in English only. Any dispute arising out of or connected with this Agreement, including a dispute as to the validity or existence of this Agreement and/or this Section 16, shall be subject to the sole and exclusive jurisdiction of the California courts, or if Company is headquartered outside the U.S. resolved by (a) arbitration in Hong Kong pursuant to the Hong Kong International Arbitration Centre (“HKIAC”) Administered Arbitration Rules (“Rules”) in force when the Notice of Arbitration is received by the HKIAC, if Company is headquartered in Asia; or (b) administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules in New York, New York if Company is headquartered elsewhere, and in any event conducted in the English language by three arbitrators, save that the parties agree to waive any right of appeal against the arbitration award. Nothing contained in this Section shall preclude either party from seeking or obtaining preliminary injunctive relief pending resolution of the dispute in issue. Each party acknowledges that any actual or threatened breach of this Agreement may constitute immediate, irreparable harm to the other party for which monetary damages would be an inadequate remedy, and that injunctive relief may be an appropriate remedy for such breach. Accordingly, in the event of any breach of this Agreement, the non-breaching party may seek immediate injunctive relief without the necessity of posting bonds. In addition to the authority conferred on the arbitrator, and without prejudice to any provisional measures that may be available from a court of competent jurisdiction, the arbitrator shall have the power to grant any provisional measure, including, but not limited to, provisional injunctive relief. Any such provisional measures ordered may be deemed to be a final award on the subject matter of the measures and shall be enforceable as such. The arbitrator shall be guided by the IBA Rules On the Taking of Evidence In International Arbitration. No information concerning an arbitration, beyond the names of the parties and the relief requested, may be unilaterally disclosed to a third party by any party unless required by law. Judgment upon any award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- HIGH RISK APPLICATIONS:
In connection any anticipated use of Products or Software by Buyer in hazardous environments requiring fail-safe performance (including medical applications (including without limitation cardiac pacemakers, defibrillators, electrodes, leads, and programmers, and components therefor), aircraft navigation or communication systems, air traffic control, nuclear facilities or applications or any other application in which the failure of the products, software or services could lead directly to death, personal injury or severe physical or property damage (collectively, “High-Risk Application”), Buyer acknowledges and agrees that ERP’s products are manufactured under normal industrial conditions, which may not satisfy the requirements applicable to products manufactured for certain High-Risk Applications. It is the sole responsibility of persons contemplating High-Risk Application of ERP’s products to comply with all applicable laws, regulations, codes and standards, including the U.S. Federal Food, Drug and Cosmetic Act and regulations of the Food and Drug Administration or other similar laws, and ERP expressly disclaims any express or implied warranty of fitness for High-Risk Application. Buyer will indemnify, defend, and hold harmless ERP and its officers, directors, employees, agents, and contractors from and against any and all losses, claims, damages, liabilities, and expenses (including reasonable attorney’s fees) based upon any bodily injury or property damage arising from Buyer’s incorporation of Products or Software as part of any product made by Buyer for High-Risk Applications.
Buyer may not transfer or assign this Agreement or any interest herein, by operation of law or otherwise, without the prior express written consent of ERP. Any attempted transfer or assignment without such consent shall be void.
- ENTIRE AGREEMENT; MODIFICATION:
These Terms supersede all prior written and oral agreements and understandings between ERP and Buyer with respect to the Products and services specified herein. No representation or statement not contained herein shall be binding upon ERP, including any purchase order. No addition to or waiver, modification or cancellation of any provision hereof shall be binding upon ERP unless in writing and signed by a duly authorized representative of ERP.
All notices and other communications hereunder shall be in writing and mailed by first-class, registered or certified mail, postage prepaid, to the parties hereto at their respective designated addresses as set forth in the Quotation, subject to either party’s right to change such address upon ten (10) days’ prior written notice. All notices to ERP shall be sent with a copy to ERP Power LLC; 2625 Townsgate Rd, Suite 106, Westlake Village, CA 91361: attention: General Counsel. Alternatively, suitable electronic communications, such as email, may be used for this purpose provided that an attachment accompanies the communication and is acknowledged as received by ERP in a reply communication. All electronic means of communication shall be sent to SaveEnergy@ERP-Power.com and addressed to ERP General Counsel.
- EXPORT CONTROL:
Buyer acknowledges that the Products, Software, Services, technical information and/or other Materials are or may be subject to export/re export laws and regulations of the United States or other countries in which Buyer operates. The Products, Software and Materials are subject to AT-level export controls as defined by the Export Administration Regulations (EAR) and U.S. Government export regulations. Buyer will (i) not export, re-export, divert, transfer or disclose, directly or indirectly, any Products, Software or Services without complying strictly with all legal requirements including obtaining prior approval of the U.S. Department of Commerce and, if necessary, other government agencies; (ii) execute and deliver such “Letters of Assurance” as may be reasonably requested by ERP; (iii) ensure that Buyer, its employees and any third parties accessing such Products, Software or Materials fully comply with the requirements of this provision and provisions of ITAR and EAR in addition to any other applicable law requirements, and Buyer will indemnify ERP against any losses related to a failure to conform to these requirements.
- INVALIDITY; SEVERABILITY:
Should any provision of these Terms be or become invalid, such provision will be replaced by a valid provision to the maximum extent permitted by law satisfies the same legal, economic and originally intended purpose and other terms shall remain.
- AGREEMENTS; COUNTERPARTS:
Any Quotation, agreements or amendments must be in writing and may be signed in counterparts, including by electronic signature, each of which shall be considered an original.
APPENDIX A: SERVICE AND PENALTY FEES
ERP offers various services that Buyers may elect to purchase. These services include, but are not limited to:
- Shipping Charge Back Fee: From time to time, Buyers may request ERP to arrange shipping on Buyer’s behalf. ERP charges a 4% surcharge for this service.
- Programming Fee: ERP offers the service of programming certain LED drivers, LED modules and other Products at its facility. ERP charges a 7% surcharge for custom programming services.
- Failure Analysis: All failure analyses will incur a $500 fee, and all shipment costs of the Product, subject to the RMA, for this purpose shall be borne by the Buyer.
- Commissioning Service Fee: Fees range from $500 – $3000 dependent upon the installation services that the Buyer may request.
Payment Terms and Fees:
- Delinquent Payment Fee: Payment shall be received per net thirty (30) calendar day terms, as measured from the date of invoice, unless otherwise agreed to by both Parties in advance of invoicing. If payment is not received per the agreed upon terms, a 1% fee of total Purchase Order value shall be added to the invoice. The 1% fee compounds on a monthly basis until the invoice and late payment fees are paid in full. Delinquent payments may result in future purchase order rejections and/or shipment holds of existing Product backlog.
- Payment Delivery Fee: ERP prefers that Payments be made via wire transfer/ACH. All payments received by either check or credit card are subject to a processing fee of 3% and 5%, respectively.
- MOQ Break Fee: Any Purchase Order quantity that is less than the Minimum Order Quantity (MOQ) is subject to a 20% MOQ break-fee.
Other Modification Fees:
- Expediting Fee: Should Buyer request a shipment in less than standard lead time or prior to ERP’s Confirmed Shipment Date, the purchase may be subject to an expediting fee, which equates to 5% of the total purchase order value. This expedite fee shall only be charged if ERP can make the expedited delivery date agreed to by the Buyer and ERP.
- Cancellation Fee: Buyer may cancel any order that is outside of ERP standard lead time. Orders within lead time are subject to cancellation fees. All custom parts and components will be charged a 100% cancellation fee. All non-customizable parts and components will be subject to a 60% cancellation fee if cancelled at least two months before the expected ship date. All parts and components will be subject to 100% cancellation fee if cancelled within two months of the ERP Confirmed Shipment Date.
- Inventory Holding Fee: Buyer may request a later delivery date outside of lead time only once without incurring any penalties. If Buyer requests a later delivery date inside of lead time, a 2% inventory holding fee will be charged per month until Buyer accepts delivery.
Shipping and Handling Fees:
- ERP requires Buyer to submit shipping information within seven (7) working days of ERP’s Confirmed Shipment Date and/or Shipment Booking Shop Order within three (3) working days ahead of ERP Confirmed Shipment date. If this information is not provided within the allotted time frame, a 5% surcharge will be added to the order.
- For any type of cash-up-front order, shipping and handling percentage charges will apply to the outstanding balance on the PO. For example, Customer pays 30% up-front, leaving 70% open. The charge for not providing shipping information would be 5% * 70% of the PO value.
|Invoice Fee as a %
|Shipping Charge-Back Fee
|Commissioning Service Fee
|Invoice Fee as a %
|Delinquent Payment to terms
|Credit Card Fee
|Check Processing Fee
|MOQ Break Fee
|Invoice Fee as a %
|Order Modification Fees
|Order Expediting Fee
|Order Cancellation Fee
|Between 1-8 weeks of ERP Shipment Date
|Between 1-8 weeks of ERP Shipment Date
|Inventory Holding Fee for Orders that have been requested to push out
|2% / Month
|Invoice Fee as a %
|Shipping & Handling Fees
|Shipping Information not provided within 7 working days of ERP Shipment Date and/or
Shipment Booking Shop Order is not released 3 working days ahead of ERP Shipment Date to facilitate shipment by the end of the month.