Privacy Notice for California Candidates
Effective Date: January 1, 2021
The California Consumer Privacy Policy Act (the “CCPA”) obligates covered businesses to disclose to consumers (including employees and job applicants), at or before the point of collecting personally identifiable information (“PII”), the categories of PII to be collected and the purposes for which the categories of PII shall be used. We encourage you to read it carefully.
I. Introduction
This notice (“Notice”) describes the categories of personal information that Pellenc America, Inc. (“firm”, “we”, “us” and “our”) collects about California residents who apply or are recruited for a job with us or one of our affiliates (“candidates”), and the purposes for which we use that information.
For purposes of this Notice, “personal information” has the meaning given in the CCPA, but excludes information exempted from the CCPA’s scope.
If you have questions about this Notice, please contact us at privacy@pellencus.com.
II. Information we collect about candidates
a. Categories of Personal Information
In the course of the job application process, we may collect the following categories of PII for the purposes of evaluating you as a job applicant:
- Contact information, such as home address, telephone number, and email address;
- Information from job application materials or recruiters, such as your job application, resume or CV, cover letter, writing samples, references, work history, information for checking conflicts of interest (such as your work with specific clients and on specific matters), education transcripts, whether you are subject to prior employer obligations, and information that referrers provide about you;
- Professional qualifications, such as licenses, permits, memberships, and certifications;
- Information from the application process, such as any phone-screens, interviews, evaluations and outcomes of recruiting exercises;
- Immigration status and other information that would allow us to verify your employment eligibility at the appropriate time in the recruiting process, as permitted by law;
- Biographical information, such as name, gender, professional history, references, language proficiencies, education details, and information you make publicly available through job search or career networking sites. We collect your date of birth after an offer is made and as part of the background check process;
- Job preferences, such as desired position and compensation, location preferences and willingness to relocate;
- Employment history;
- Background check information, such as information necessary to complete background, credit, drug/alcohol and/or other checks when permitted by law, and information received during these checks;
- Information needed to understand and assess accommodation requests regarding potential disabilities or other health conditions. This discussion would occur only after an offer of employment is made and accepted;
- Medical information if you meet with us in-person, such as your body temperature, health symptoms and other screening information in connection with the firm’s health and safety plans and protocols, including screening required to access the firm’s offices/facilities and other measures designed to prevent the transmission of COVID-19 or other infectious diseases; and
- Other information you provide to us.
Providing personal information to us is voluntary. However, if you do not provide sufficient information, we may be unable to consider your application or, if you are hired, your subsequent promotion, transfer or relocation.
In certain cases we may ask you for additional information for purposes of complying with applicable laws. We may also inquire about criminal records. We will do so only where permitted by applicable law.
b. Sources of personal information
We collect personal information from you when you apply for a job and throughout the job application or recruitment process. We may also collect your personal information from other sources and combine it with the personal information you provide us. For example, we may collect your personal information from:
- Job board websites you may use to apply for a job with us;
- Prior employers that provide us with employment references;
- Professional references that you authorize us to contact;
- Pre-employment screening services, such as background check providers (where permitted by law);
- Employment agencies and recruiters;
- Your educational institutions;
- Publicly-available sources, including your public social media profile or other publicly-available sources;
- Online activity information that we and our service providers collect using server logs, “cookies” and similar technologies on the Careers Site.
- Other firm personnel.
- Recruiting or other events where we are a sponsor or participant.
III. How we use personal information about candidates
a. Purposes for which we use personal information
We may use the categories of personal information above for the following purposes:
- Recruitment management.Managing recruitment generally, such as:
- operating the careers website we maintain at https://pellencus.com/careers/ or any other site to which this Notice is posted (“Careers Site”);
- recruiting, interviewing and evaluating job candidates;
- conducting background checks and other pre-employment screening (where permitted by law);
- analyzing and improving our application and recruitment processes;
- accommodating disabilities or health conditions;
- communicating with you regarding your candidacy, opportunities with the firm or about the Careers Site and any changes to applicable terms or policies; and
- other business operations.
- Compliance, safety and fraud prevention, such as:
- complying with or monitoring compliance with legal and other requirements, such as reporting and equal opportunities monitoring requirements, where applicable;
- complying with internal policies and procedures;
- complying with lawful requests and legal process, such as responding to subpoenas or requests from government authorities;
- protecting our, your or others’ rights, safety and property, including by complying with applicable public health guidelines and requirements, including, without limitation, guidance from the Centers for Disease Control or other public health authorities relating to the prevention and control of COVID-19 or other infectious diseases;
- investigating and deterring against fraudulent, harmful, unauthorized, unethical or illegal activity, or conduct in violation of our policies or procedures;
- controlling access to and monitoring our physical premises (e.g., by requiring health screenings to access offices/facilities; and
- sharing information with government authorities, law enforcement, courts or private parties where we have a good-faith belief it is necessary for the foregoing purposes.
- Creating anonymous, aggregated or de-identified data that we use and share to analyze our application and recruitment activities, business and for other lawful business purposes.
b. Sharing personal information
We may share your personal information with other parties as necessary for the purposes described above. For example, we may share your personal information with:
- Affiliates. Our affiliated entities, for purposes consistent with this Notice or to operate shared infrastructure, systems and technology.
- Firm service providers. Companies that provide us with services that help us manage the recruiting process and operate our business, such as job boards, recruiters, interviewing and testing, pre-employment screening, interview travel booking and expense reimbursement (where applicable), relocation (where applicable), and recruitment analytics.
- Government authorities, law enforcement and others. Government authorities, law enforcement, courts, and others as described in the compliance, safety and fraud prevention section above.
- Business transfers. Parties to transactions and potential transactions whereby we sell, transfer or otherwise share some or all of our business or assets, including your personal information, such as a corporate divestiture, merger, consolidation, acquisition, reorganization or sale of assets, or in the event of bankruptcy or dissolution.
- Professional advisors. Lawyers, immigration advisors, and other outside professional advisors.
- Clients and business partners. Clients, other companies and individuals with whom the firm does business or is exploring a business relationship.
Privacy Notice for California Residents
EFFECTIVE: January 1, 2021
PRIVACY NOTICE FOR CALIFORNIA RESIDENTS
This PRIVACY NOTICE FOR CALIFORNIA RESIDENTS supplements the information contained in the Privacy & Data Confidentiality Policy of Pellenc America, Inc., and its subsidiaries (collectively, “we,” “us,” or “our”) and applies solely to visitors, users, and others who reside in the State of California (“consumers” or “you”). We adopt this notice to comply with the California Consumer Privacy Act of 2018 (“CCPA”) and other California privacy laws. Any terms defined in the CCPA have the same meaning when used in this notice.
Information We Collect
We collect information that identifies, relates to, describes, references, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or device (“personal information”). In particular, we have collected the following categories of personal information from consumers within the last twelve (12) months:
| Category | Examples | Collected |
| A. Identifiers. | A real name, alias, postal address, unique personal identifier, online identifier, Internet Protocol address, email address, account name, Social Security number, driver’s license number, passport number, or other similar identifiers. | Yes |
| B. Personal information categories listed in the California Customer Records statute (Cal. Civ. Code § 1798.80(e)). | A name, signature, Social Security number, physical characteristics or description, address, telephone number, passport number, driver’s license or state identification card number, insurance policy number, education, employment, employment history, bank account number, credit card number, debit card number, or any other financial information, medical information, or health insurance information. Some personal information included in this category may overlap with other categories. | Yes |
| C. Protected classification characteristics under California or federal law. | Age (40 years or older), race, color, ancestry, national origin, citizenship, religion or creed, marital status, medical condition, physical or mental disability, sex (including gender, gender identity, gender expression, pregnancy or childbirth and related medical conditions), sexual orientation, veteran or military status, genetic information (including familial genetic information). | No |
| D. Commercial information. | Records of personal property, products or services purchased, obtained, or considered, or other purchasing or consuming histories or tendencies. | Yes |
| E. Biometric information. | Genetic, physiological, behavioral, and biological characteristics, or activity patterns used to extract a template or other identifier or identifying information, such as, fingerprints, faceprints, and voiceprints, iris or retina scans, keystroke, gait, or other physical patterns, and sleep, health, or exercise data. | No |
| F. Internet or other similar network activity. | Browsing history, search history, information on a consumer’s interaction with a website, application, or advertisement. | Yes |
| G. Geolocation data. | Physical location or movements. | Yes |
| H. Sensory data. | Audio, electronic, visual, thermal, olfactory, or similar information. | No |
| I. Professional or employment-related information. | Current or past job history or performance evaluations. | No |
| J. Non-public education information (per the Family Educational Rights and Privacy Act (20 U.S.C. Section 1232g, 34 C.F.R. Part 99)). | Education records directly related to a student maintained by an educational institution or party acting on its behalf, such as grades, transcripts, class lists, student schedules, student identification codes, student financial information, or student disciplinary records. | No |
| K. Inferences drawn from other personal information. | Profile reflecting a person’s preferences, characteristics, psychological trends, predispositions, behavior, attitudes, intelligence, abilities, and aptitudes. | No |
Personal information does not include:
- Publicly available information from government records.
- De-identified or aggregated consumer information.
- Information excluded from the CCPA’s scope, like:
- health or medical information covered by the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the California Confidentiality of Medical Information Act (CMIA) or clinical trial data;
- personal information covered by certain sector-specific privacy laws, including the Fair Credit Reporting Act (FRCA), the Gramm-Leach-Bliley Act (GLBA) or California Financial Information Privacy Act (FIPA), and the Driver’s Privacy Protection Act of 1994.
We obtain the categories of personal information listed above from the following categories of sources:
- Directly from our clients or their agents.
- Directly and indirectly from activity on our website at https://pellencus.com/. For example, from submissions through our website portal or website usage details collected automatically.
- From third-parties that interact with us in connection with the services we perform.
Use of Personal Information
We may use or disclose the personal information we collect for one or more of the following business purposes:
- To fulfill or meet the reason for which the information is provided.
- To provide you with information, products or services that you request from us.
- To provide you with email alerts, event registrations and other notices concerning our products or services, or events or news, that may be of interest to you.
- To carry out our obligations and enforce our rights arising from any contracts entered into between you and us, including for billing and collections.
- To improve our website and present its contents to you.
- For testing, research, analysis and product development.
- As necessary or appropriate to protect the rights, property or safety of us, our clients or others.
- To respond to law enforcement requests and as required by applicable law, court order, or governmental regulations.
- As described to you when collecting your personal information or as otherwise set forth in the CCPA.
- To evaluate or conduct a merger, divestiture, restructuring, reorganization, dissolution, or other sale or transfer of some or all of our assets, whether as a going concern or as part of bankruptcy, liquidation, or similar proceeding, in which personal information held by us is among the assets transferred.
We will not collect additional categories of personal information or use the personal information we collected for materially different, unrelated, or incompatible purposes without providing you notice.
Sharing Personal Information
We may disclose your personal information to a third party for a business purpose. When we disclose personal information for a business purpose, we enter a contract that describes the purpose and requires the recipient to both keep that personal information confidential and not use it for any purpose except performing the contract.
In the preceding twelve (12) months, we have disclosed the following categories of personal information for a business purpose:
Category A: Identifiers.
Category B: California Customer Records Personal Information categories..
Category D: Commercial Information
Category F: Internet or other similar network activity
Category G: Geolocation Data
We disclose your personal information for a business purpose to the following categories of third parties:
- Our affiliates.
- Service providers.
- Third parties to whom you or your agents authorize us to disclose your personal information in connection with products or services we provide.
In the preceding twelve (12) months, we have not sold any personal information.
Your Rights and Choices
The CCPA provides consumers (California residents) with specific rights regarding their personal information. This section describes your CCPA rights and explains how to exercise those rights.
Access to Specific Information and Data Portability Rights
You have the right to request that we disclose certain information to you about our collection and use of your personal information over the past 12 months. Once we receive and confirm your verifiable consumer request, we will disclose to you:
- The categories of personal information we collected about you.
- The categories of sources for the personal information we collected about you.
- Our business or commercial purpose for collecting or selling that personal information.
- The categories of third parties with whom we share that personal information.
- The specific pieces of personal information we collected about you (also called a data portability request).
- If we sold or disclosed your personal information for a business purpose, two separate lists disclosing:
- sales, identifying the personal information categories that each category of recipient purchased; and
- disclosures for a business purpose, identifying the personal information categories that each category of recipient obtained.
Deletion Request Rights
You have the right to request that we delete any of your personal information that we collected from you and retained, subject to certain exceptions. Once we receive and confirm your verifiable consumer request, we will delete (and direct our service providers to delete) your personal information from our records, unless an exception applies.
We may deny your deletion request if retaining the information is necessary for us or our service providers to:
- Complete the transaction for which we collected the personal information, provide a good or service that you requested, take actions reasonably anticipated within the context of our ongoing business relationship with you, or otherwise perform our contract with you.
- Detect security incidents, protect against malicious, deceptive, fraudulent, or illegal activity, or prosecute those responsible for such activities.
- Debug products to identify and repair errors that impair existing intended functionality.
- Exercise free speech, ensure the right of another consumer to exercise their free speech rights, or exercise another right provided for by law.
- Comply with the California Electronic Communications Privacy Act (Cal. Penal Code § 1546 seq.).
- Engage in public or peer-reviewed scientific, historical, or statistical research in the public interest that adheres to all other applicable ethics and privacy laws, when the information’s deletion may likely render impossible or seriously impair the research’s achievement, if you previously provided informed consent.
- Enable solely internal uses that are reasonably aligned with consumer expectations based on your relationship with us.
- Comply with a legal obligation.
- Make other internal and lawful uses of that information that are compatible with the context in which you provided it.
Exercising Access, Data Portability, and Deletion Rights
To exercise the access, data portability, and deletion rights described above, please submit a verifiable consumer request to us by either:
- Calling us at1 (800) 309-4186.
- Email us at: privacy@pellencus.com
Only you or a person registered with the California Secretary of State that you authorize to act on your behalf, may make a verifiable consumer request related to your personal information. You may also make a verifiable consumer request on behalf of your minor child.
You may only make a verifiable consumer request for access or data portability twice within a 12-month period. The verifiable consumer request must:
- Provide sufficient information that allows us to reasonably verify you are the person about whom we collected personal information or an authorized representative.
- Describe your request with sufficient detail that allows us to properly understand, evaluate, and respond to it.
We cannot respond to your request or provide you with personal information if we cannot verify your identity or authority to make the request and confirm the personal information relates to you. Making a verifiable consumer request does not require you to create an account with us. We will only use personal information provided in a verifiable consumer request to verify the requestor’s identity or authority to make the request.
Response Timing and Format
We endeavor to respond to a verifiable consumer request within 45 days of its receipt. If we require more time (up to 90 days), we will inform you of the reason and extension period in writing. If you have an account with us, we will deliver our written response to that account. If you do not have an account with us, we will deliver our written response by mail or electronically, at your option. Any disclosures we provide will only cover the 12-month period preceding the verifiable consumer request’s receipt. The response we provide will also explain the reasons we cannot comply with a request, if applicable. For data portability requests, we will select a format to provide your personal information that is readily useable and should allow you to transmit the information from one entity to another entity without hindrance.
We do not charge a fee to process or respond to your verifiable consumer request unless it is excessive, repetitive, or manifestly unfounded. If we determine that the request warrants a fee, we will tell you why we made that decision and provide you with a cost estimate before completing your request.
Non-Discrimination
We will not discriminate against you for exercising any of your CCPA rights. Unless permitted by the CCPA, we will not:
- Deny you goods or services.
- Charge you different prices or rates for goods or services, including through granting discounts or other benefits, or imposing penalties.
- Provide you a different level or quality of goods or services.
- Suggest that you may receive a different price or rate for goods or services or a different level or quality of goods or services.
Financial Incentive
The CCPA allows us to provide financial incentives for collecting, selling, or deleting your Personal Information. However, at the time this policy was last updated, we do not provide any financial incentives.
Changes to This Privacy Notice
We reserve the right to amend this privacy notice at our discretion and at any time. When we make changes to this privacy notice, we will notify you by email or through a notice on our website homepage.
Contact Information
If you have any questions or comments about this notice, our Privacy Statement, the ways in which we collect and use your personal information, your choices and rights regarding such use, or wish to exercise your rights under California law, please do not hesitate to contact us at:
Phone: 1 (800) 309-4186
Website: pellencus.com
Email: privacy@pellencus.com
Postal Address: 3171 Guerneville Rd, Santa Rosa, CA 95401, USA
Attn: Glenn Merdan
2021 Unified Hat Raffle!
2021 Unified Show
Tractors
Harvesting
Vineyard
Winery
Hand Tools
Welcome to Pellenc America’s 2021 Unified Portal
This year we’re participating in the virtual tradeshow and we’re glad you stopped by! We have sales representatives and product experts on hand to help answer questions. We’ll also be releasing videos during the week of the show, right here, so check back for more new content all week! Also, be sure to take a minute and sign up for our newsletter for a chance to win PELLENC hats!
IN-DEPTH VIDEOS
We’ve produced a few in-depth videos on some of our newest products, updates and testimonials. Be sure to take a few minutes and check them out! Learn the ins-and-outs with Pellenc America experts as we give you an insiders look.
Battery Powered Tools
Precision Pruner
Oenopompe & Smart Glass
Under Vine Cultivator
Testimonial
Testimonial
Testimonial
KLIMA Cane Pruning
Selectiv’ Process
Terms and Conditions
STANDARD TERMS AND CONDITIONS
LAST UPDATED: 09-2020
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GENERAL
- 1.1 These Standard Terms & Conditions (this “Agreement”) govern the sale and use of the equipment, machinery, goods, and professional services (if applicable) (the “Equipment”), as specifically set forth in one or more Retail Purchase Orders.
- 1.2 Capitalized terms not defined elsewhere in this Agreement shall have the meaning given to them in Section 10 below.
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DELIVERY
- 2.1 Pellenc America shall use reasonable efforts to meet any dates (the “Delivery Date”) specified for the delivery of the Equipment ; provided, however, all such dates are estimates only and subject to Pellenc America’ s availability. Upon mutual agreement of the parties, the Equipment shall be delivered to the Customer either by (a) Pellenc America; (b) a third-party contractor; or (c) Customer.
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INSTALLATION; TESTING AND ACCEPTANCE
- 3.1 Installation and Testing. If applicable, the parties shall mutually agree regarding the proper method for installation and testing of the Equipment on the applicable Retail Purchase Order(s).
- 3.2 Acceptance. Customer agrees to give a written notice of non-conformity to Pellenc America within seven (7) business days of the Delivery Date with reasons for the non-conformity. In the event Customer fails to provide adequate notice of non-conformity to Pellenc America within seven (7) business days of the Delivery Date, by default, the Customer agrees that the Equipment substantially conforms to the applicable specifications and any other requirements agreed to by the parties in writing or described in Pellenc America’ s published documentation related to the Equipment (the “Specifications”). In the event of a valid notice of non-conformity, Pellenc America, in its sole discretion, will either repair or replace the Equipment.
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FEES AND PAYMENT; TAXES
- 4.1 Fees and Payment. Unless otherwise stated in a Retail Purchase Order, Customer shall pay to Pellenc America in U.S. Dollars, and invoices are due net fifteen (15) days after the Delivery Date. Notwithstanding the foregoing, Customer shall pay Pellenc America down payment, if any, as set forth on a Retail Purchase Order. Except as expressly provided in this Agreement or in a Retail Purchase Order, all fees are non-cancelable and non-refundable. If any payment is not received when due, or if Customer shall default in the performance of any other obligation required hereunder, Pellenc America shall have the rights and remedies of a secured party under the UCC; provided that Pellenc America gives Customer notice of non-payment and ten (10) days opportunity from the date of the notice to cure. Such rights and remedies shall include, without limitation: (a) the right to sell, lease or otherwise dispose of any or all of the Equipment; (b) the right to take possession of the same; and (c) the right to terminate this Agreement upon Customer’s failure to make any payment due hereunder by the due date.
- 4.2 Taxes. All fees stated exclude, and Customer is responsible for payment of, any sales, use, value added, excise, property withholding or similar tax and any related tariffs. Customer will, and hereby agrees to, promptly reimburse Pellenc America for any and all taxes or duties that Pellenc America may be required to pay in connection with this Agreement upon receipt of Pellenc America ‘s invoice therefor.
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WARRANTIES; DISCLAIMERS AND EXCLUSIONS
- 5.1 Mutual Warranties. Each party represents and warrants that: (a) it has the legal authority to enter into this Agreement, and to perform its obligations under this Agreement; (b) it is duly organized and in good standing under the laws of the jurisdiction of its incorporation or formation; and (c) this Agreement is duly authorized by the executing party.
- 5.2 Pellenc America ‘s Warranty. Pellenc America ‘s sole warranty to the Customer is to provide the information about the manufacturer’s warranty for the Equipment set forth on the applicable Retail Purchase Order. Pellenc America provides no warranty of its own to Customer other than the following: In addition to the manufacturer’s warranty, Pellenc America offers two (2) year parts warranty (not to include labor) on the four wheel motors and the drive pump of the hydrostatic transmission on new Over The Row Tractors and three (3) year parts warranty (not to include labor) on all electronic boards on new Over the Row Tractors. The Pellenc America’s warranty will start at the same time as the manufacturer’s warranty. The Pellenc America’s warranty does not cover failures caused through or by operator error, modifications not authorized by Pellenc America, non-Pellenc America’s parts, unauthorized attachments and under maintenance issues.
- 5.3 Disclaimer and Exclusions. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5 CUSTOMER ACKNOWLEDGES THAT THE EQUIPMENT IS PROVIDED “AS IS” AND CUSTOMER FURTHER ACKNOWLEDGES THAT PELLENC AMERICA DISCLAIMS ANY AND ALL OSHA PROVISIONS TO THE EXTENT PERMITTED BY LAW, AND ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY; OF FITNESS FOR A PARTICULAR PURPOSE; OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
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INDEMNITY
- 6.1 Pellenc America ‘s Indemnity. Subject to this Agreement, Pellenc America shall indemnify, hold harmless, and defend the Customer and its managers, officers, directors, employees, agents, affiliates, and successors (collectively, “Indemnified Party”) against any and all losses, damages, and costs of whatever kind, including professional fees and reasonable attorneys’ fees arising out of any third-party claim alleging material breach of this Agreement (the “Claim”); provided, that the Indemnified Party: (a) gives Pellenc America prompt written notice of the Claim; (b) gives Pellenc America sole control of the defense and settlement of the Claim; and (c) provides to Pellenc America reasonable assistance (at Pellenc America ‘s expense). Notwithstanding anything to the contrary in this Agreement, Pellenc America is not obligated to indemnify, hold harmless, or defend the Indemnified Party against any claim (whether direct or indirect) if such claim or corresponding losses arise out of or result from, in whole or in part, the Indemnified Party’s: (i) negligence or more culpable act or omission (including recklessness or willful misconduct); (ii) bad faith failure to comply with any of its obligations set forth in this Agreement; or (iii) use of the Equipment in any manner not otherwise authorized under this Agreement that does not materially conform with the Specifications provided by the Pellenc America. THIS SECTION 6.1 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF PELLENC AMERICA, AND THE SOLE AND EXCLUSIVE REMEDY FOR THE INDEMNIFIED PARTY, INCLUDING, WITHOUT LIMITATION, FOR BREACH OF WARRANTY.
- 6.2 Customer’s Indemnity. Subject to this Agreement, Customer shall defend, indemnify, and hold Pellenc America and its managers, officers, directors, employees, agents, affiliates, and successors harmless from and against any and all losses, damages and costs (including reasonable attorneys’ fees) incurred in connection with any claim, action, suit, or proceeding made or brought against Pellenc America arising out of or related to: (a) Customer’s negligent use of the Equipment; or (b) Customer’s material breach of this Agreement; provided, that Pellenc America: (i) gives the Customer prompt written notice; (ii) gives the Customer sole control of the defense and settlement; and (iii) provides to Customer reasonable assistance (at Customer’s expense).
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LIMITATIONS OF LIABILITY
- 7.1 NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, TO THE EXTENT PERMITTED BY LAW, FOR ANY CLAIM, DAMAGE, LIABILITY, OR EXPENSE RELATED TO OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR OPERATION OF THE EQUIPMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL OR EQUITABLE THEORY, HOWEVER ARISING, IN NO EVENT WILL PELLENC AMERICA BE LIABLE FOR (A) CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE; OR (B) DAMAGES IN AN AMOUNT THAT EXCEEDS THE AMOUNTS PAID TO PELLENC AMERICA BY THE CUSTOMER UNDER THIS AGREEMENT FOR THE EQUIPMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE FIRST EVENT WHICH GIVES RISE TO SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY WHETHER OR NOT THE CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE FORESEEABLE AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
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CONFIDENTIALITY
- 8.1 By virtue of this Agreement, each party may have access to information that is the confidential information to the other party (“Confidential Information”). Confidential Information shall include, but not be limited to, the terms and pricing under this Agreement, information relating to the finances, management, business, operations, products, services or inventions of either party and all information clearly identified as confidential. Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the receiving party; (b) was in receiving party’s lawful possession prior to the disclosure and had not been obtained by receiving party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to receiving party by a third party without restriction on disclosure; or (d) is independently developed by receiving party. Receiving party agrees to hold all Confidential Information in confidence and agrees, that unless required by law, it shall not make Confidential Information available in any form to any third party or to use Confidential Information for any purpose other than the performance of this Agreement. Receiving party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees, representatives or agents, except with a need to know to perform this Agreement. Neither party shall publish or disclose anything about the other party, the Equipment or this Agreement in any medium, print or electronic, without the prior written permission of the other party. In the event of any conflict between this Section 8 and any separate confidentiality agreement between the parties, this Section 8 shall prevail. Each party’s obligations under this Section 8 will survive any termination of this Agreement.
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MISCELLANEOUS
- 9.1 Governing Law. This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by the laws of the State of California (exclusive of conflict of laws principles). Any legal action or proceeding relating to this Agreement shall be instituted solely in a state or federal courts in Sonoma County, California. Pellenc America and Customer agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.
- 9.2 Attorney’s Fees. In the event that there is any controversy or claim arising out of or relating to this Agreement, or to the interpretation, breach or enforcement thereof, and any action or proceeding is commenced to enforce the provisions of this Agreement, the prevailing party shall be entitled to its reasonable attorney’s fee, costs and expenses.
- 9.3 Relationship of the Parties. The Parties acknowledge that: (a) they are acting as independent contractors; (b) each party is solely responsible for its actions or inactions; (c) the parties shall not be deemed to be agents of each other; and (d) no joint venture, franchise, partnership, agency, or other relationship shall be created or implied by this Agreement.
- 9.4 No Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
- 9.5 Entire Agreement. This Agreement, with any other applicable documents that either incorporate this Agreement by reference or are incorporated herein by reference constitutes the complete agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, understandings, representations, discussions, proposals, literature, and the like, written or oral. It is expressly agreed that the terms of this Agreement shall supersede the terms in any other ordering document, if any.
- 9.6 Modification; No waiver. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify this Agreement. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.
- 9.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
- 9.8 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Pellenc America ‘s prior written consent, which shall not be unreasonably withheld. Any purported assignment, delegation or transfer in violation of this provision is void. Notwithstanding the foregoing, this Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- 9.9 Force Majeure. Except for a Party’s payment obligations, neither party shall be in default hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to, without limitation, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, loss and destruction of property or any other circumstances or causes beyond a party’s reasonable control.
- 9.10 Injunctive Relief. Notwithstanding any other remedy available to the Parties under this Agreement, either party’s breach of Section 8 may result in irreparable harm to the other Party, and therefore, upon any such breach or any threat thereof, the other Party is entitled to seek temporary, preliminary and permanent injunctive relief without the requirement of posting a bond or proving actual damages, in addition to whatever remedies such Party might have at law.
- 9.11 Publicity. Neither Party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other Party’s trademarks, service marks, trade names, or logos, in each case, without the prior written consent of the other Party, provided, however, that Pellenc America may include Customer’s name and/or other indicia in its lists of Pellenc America customers in its website and/or other marketing materials.
- 9.12 Notices. Notices to be given or submitted by either Party to the other Party pursuant to this Agreement shall be in writing and directed to the address or email provided below (or as otherwise provided to the other party in writing) and shall be deemed to have been given: (a) on the date of delivery when delivered by hand (with written confirmation of receipt); (b) upon written confirmation of receipt by e-mail or otherwise when delivered by email; or (c) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested) or by certified or registered mail, return receipt requested, postage prepaid.
For Pellenc America: For Customer
3171 Guerneville Road To the address as set forth Santa Rosa CA, 95401 on the Retail Purchase Order
Attn: CEO
Email: information@pellencus.com
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CERTAIN DEFINITIONS
- “Pellenc America” shall mean Pellenc America Inc. a California corporation with its principal place of business at 3171 Guerneville Road, Santa Rosa, California 95401.
- “Retail Purchase Order” means any order form that references this Agreement executed by Pellenc America and Customer.
- “UCC” shall mean the Uniform Commercial Code. America
Pellenc AMERICA MASTER agreement [v1.0] (Last Updated: 09-2020)
Confidential & Proprietary. Pellenc america, Inc. All rights reserved
