STANDARD TERMS AND CONDITIONS
LAST UPDATED: 09-2020
- 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.
- 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.
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.
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.
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.
- 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).
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.
- 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.
- 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
- “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