Terms and Conditions of Sale 2015
Customer and Cineo Lighting, LLC (Cineo) agree that the purchase and sales of Cineo products (the “Products”) are made under these terms and conditions (the “Terms”), and that Cineo shall not be bound by Customer’s additional or different Terms. These Terms constitute a rejection of and counter-offer to any terms offered by Customer.
Customer’s order and purchase of the Products shall constitute acceptance of these Terms.
The terms of delivery are FOB (for domestic shipments) and EXW (INCOTERMS 2000) (for international shipments), Cineo Mountain View, CA warehouse. Title to the Products shall pass at Cineo’s warehouse. Cineo retains a security interest and right of possession in the Products until Customer makes full payment. Customer agrees to execute and deliver all documents requested by Seller to perfect and maintain Seller’s security interest.
Product prices are exclusive of, and Customer shall pay, applicable sales, use, service, value added or like taxes, unless Customer has provided Cineo with an appropriate exemption certificate for the delivery destination acceptable to the applicable taxing authorities.
PRICES AND PAYMENT
All quotations shall expire thirty (30) days from date of issuance, unless otherwise set forth on the quotation or agreed in writing. Customer shall make payment in full prior to or upon delivery by cashier’s check, credit card, or money order, unless Cineo approves Customer for credit terms. If Cineo approves Customer’s credit application, payment shall be due no later than 30 days from the date of Cineo’s invoice. All sums not paid when due shall accrue interest daily at the lesser of a monthly rate of 2% or the highest rate permissible by law on the unpaid balance until paid in full. In the event of any order for several units, each unit(s) will be invoiced when shipped.
All orders are subject to acceptance by Cineo. Cineo’s booking of an order shall constitute its acceptance of an order.
Cineo shall deliver the Products to a carrier at Cineo’s facility and, if the Products are sold to a Customer outside the United States, shall clear the Products for export destined outside the United States. Customer shall pay all freight charges, applicable import duties, and other necessary fees and shall bear the risks of carrying out customs formalities and clearance. Orders are entered as close as possible to the Customer’s requested shipment date, if any. Shipment dates are scheduled after acceptance of orders and receipt of necessary documents. Claims for shipment shortage shall be deemed waived unless presented to Cineo in writing within fifteen (15) days of shipment.
Products from Cineo are warranted against defects in materials and workmanship for two years from the date the Product is shipped to Customer. Products are guaranteed to perform substantially in accordance with the accompanying written materials within the warranty period under normal use. If the Product fails to work as warranted, Cineo will, in its sole discretion, repair or replace the Product with a new or remanufactured Product that is at least equivalent to the original Product. Customer must obtain a Return Material Authorization number from Cineo before returning any Products under warranty to Cineo.
Customer shall pay expenses for shipment of repaired or replacement Products to and from Cineo’s repair facility. Any repaired or replaced Products will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.
After examining and testing a returned product, if Cineo concludes that a returned product is not defective, Customer will be notified, the product returned at Customer’s expense. This Limited Warranty is void if failure of the Products has resulted from accident, abuse, misapplication, or use outside of normal operating conditions. Warranty is void if serial number has been defaced or removed.
All sales are final. No product will be accepted for return and no credit will be allowed on any product returned unless
Manufacturer has granted prior written permission. A Return Material Authorization number must be obtained from Cineo for return of any Products. Cineo may terminate any order if any representations made by Customer to Cineo are false or misleading. Changes to orders shall not be binding upon nor be put into effect by Cineo unless confirmed in writing by Cineo’s appropriate representative.
NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND NO OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED ARE MADE WITH RESPECT TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. ELEMENT DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE PRODUCTS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE AND DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. Cineo EXPRESSLY DISCLAIMS ANY WARRANTIES NOT STATED HEREIN. NO LIABILITY FOR CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ELEMENT AND ITS LICENSORS, DISTRIBUTORS, AND SUPPLIERS (INCLUDING ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS) BE LIABLE FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, EXPENSES, LOST PROFITS, INSTALLATION COSTS, LOST SAVINGS, BUSINESS INTERRUPTION, LOST BUSINESS INFORMATION, OR ANY OTHER DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS, EVEN IF ELEMENT OR ITS LICENSORS, DISTRIBUTORS, AND SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Cineo’s TOTAL LIABILITY ON ALL CLAIMS, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE PRODUCTS. Customer acknowledges that the applicable purchase price or license fee for the Products reflects this allocation of risk. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply. The above limitations shall apply notwithstanding the failure of any limited remedy to fulfill its essential purpose.
Cineo shall be excused for any delay or failure to perform due to any cause beyond its reasonable control, including but not limited to acts of governments, natural catastrophes, acts of Customer, interruptions of transportation or inability to obtain necessary labor or materials. Cineo’s estimated shipping schedule shall be extended by a period of time equal to the time lost because of any excusable delay. In the event Cineo is unable to perform in whole or in part because of any excusable failure to perform, Cineo may cancel orders without liability to Customer.
Customer acknowledges reading these Terms and Conditions, understands them and agrees to be bound by them. A waiver of any provision of this agreement shall not be construed as a waiver or modification of any other term hereof. Disputes arising in connection with these Terms shall be governed by the laws of the State of California without regard to principles of conflicts of laws. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to these Terms. Disputes between the parties shall be settled by binding and final arbitration in San Francisco, California, USA pursuant to the Commercial Rules of Arbitration of the American Arbitration Association (“AAA”) before a single arbitrator appointed by the AAA.