Terms and Conditions of Sale

 

These Terms and Conditions of Sale (“Terms”) apply to all sales or supply of off-grid streetlights and lighting solutions and related materials (“Products”) by Fonroche Lighting America, Inc. also doing business as SolarOne (“FLA”) to you (“Customer”).  By ordering Products, Customer accepts these Terms, as may be updated from time to time by FLA.  The most recent version of these Terms may be consulted online at [www.solarone.net/terms-and-conditions] and may be attached to the Order Acknowledgment, as defined in Section 1(b).  In the event that FLA makes any web or mobile application or related software functionality available to Customer as part of a Product, such web or mobile application may be subject to additional end-user license agreements (each an “EULA”).  Software, if any, is not sold to Customer but licensed pursuant to Section 8.  Installation or other services to be performed by FLA or its subcontractors, if any, shall be subject to a separate services agreement to be entered into between Customer and FLA. 

 

1. AGREEMENT TO PURCHASE PRODUCTS

 

(a) Agreement.  Customer acknowledges and agrees that the following documents shall constitute the agreement between the parties with respect to those Products manufactured, developed or modified by or on behalf of FLA or its affiliates (“FLA Products”) and third-party Products offered by FLA (“Third-Party Products”) and in the event of any conflict between such documents (collectively, the “Agreement”) the following order of precedence shall apply: 

 

  • EULA, if any;

  • Third-Party Product Warranties, as defined in Section 6(b);

  • Order Acknowledgment, as defined in Section 1(b);

  • warranties or other terms with respect to Third-Party Products;

  • privacy policy set forth at https://www.solarone.net/privacy-policy, as may be updated from time to time by FLA (the “Privacy Policy”);

  • these Terms; and

  • the Order, as defined in Section 1(b).

 

(b) Offer.  The FLA Products are custom manufactured based on information provided by Customer and the results of a lighting application and site study that includes the following information (collectively, “Site Information”): 

 

  • geographic location, including the climate zone, impact of snow, wind, sand, dust, or atmospheric pollution, whether the location is a coastal area, and whether the location requires a soil study;

  • use of the Products, including public or private roads, requested functionality and intensity, and other characteristics;

  • technical characteristics of the Products requested, such as type, dimensions, and lighting colors; and

  • applicable administrative information provided by Customer, including applicable zoning and other regulations applicable to the Products (collectively “Site Information”).

 

Based on this Site Information, FLA will issue a quotation, proposal or offer to Customer to sell the Products to Customer (“Offer”).  Assumptions, exclusions, and qualifications stated by FLA in an Offer will be construed as part thereof.  Any Offer may be accepted by Customer within the period stated in such Offer or, in the event that no period is stated, within thirty (30) days from the date of the Offer, provided that FLA may amend, withdraw or revoke any Offer at any time prior to the receipt by FLA of Customer’s acceptance of an Offer.  Offers and Prices, as defined in Section 2(a), are subject to correction for typographical or clerical errors.

 

  • Order.  Customer may accept the Offer by issuing a purchase order (“Order”).  All Orders must include the project number indicated in the Offer, a description and quantity of each Product ordered, the requested delivery location and timeframe, and price as set forth in the Offer.  Customer is solely responsible for the accuracy of any Order, including the accuracy of the specifications for, and configuration of, the Products, and the compatibility and interoperability with other products that are not provided by FLA.  Customer warrants that all information, including Site Information, provided to FLA is complete, accurate and true, and Customer acknowledges that a failure to provide complete, accurate and true information or instructions to FLA may detrimentally affect FLA’s ability to perform its obligations or exercise its rights under the Agreement.  Any different or additional terms in any Order, blanket instructions, terms of purchase or other writing from Customer will be deemed a material alteration of these Terms and are expressly objected to and rejected and will be of no force or effect.  Commencement of performance or shipment will not be construed as acceptance of any of Customer’s terms or conditions.  No Order will be deemed final or accepted by FLA unless and until confirmed in a written Acknowledgment from FLA (each an “Order Acknowledgment”) and such Order Acknowledgment shall be deemed effective when issued by FLA and shall not be contingent upon signature by Customer.

 

(c) Changes to Orders.  Any cancellation, delay, or other change by Customer to an Order previously accepted by FLA will require the prior approval of FLA, in its sole discretion, and such approval will be without prejudice to any rights or remedies FLA may have under the Agreement or at law.  If either: (i) Customer requests a change in writing and FLA agrees to such change, including any cancellation, delay or suspension of the Order, or the addition, omission, alteration, substitution or modification of the design, quality, standard, quantity, or delivery location of Products; or (ii) FLA is required to change an Order due to (A) changes in applicable laws, regulations or industry standards, (B) emergency situations, (C) incorrect or incomplete information provided by Customer, or (D) non-compliance by Customer of any of its obligations under the Agreement (each, an “Order Change”), Customer shall reimburse FLA for all costs and expenses incurred by FLA with respect to such Order Change.  If FLA does not agree to a cancellation, delay, or other Order Change requested by Customer, FLA shall have no obligation to return any deposits made by Customer.  Course of performance or usage of trade will not be applied to modify these Terms.

 

(d) Other Materials.  Any FLA or third-party marketing material, specification, price sheet or other similar documentation is provided strictly for informational purposes and will not be deemed an Offer.  While efforts were made to verify the completeness and accuracy of these materials, they are provided AS IS without warranty of any kind, express or implied.  In addition, such materials are subject to change by FLA without notice.  FLA shall not be responsible for any damages arising out of the use of, or otherwise related to, these sales and marketing materials and nothing contained therein is intended to, nor shall have the effect of, creating any warranties or representations from FLA or its suppliers or licensors, or altering the terms and conditions of the Agreement.   

 

(e) Orders for Resale.  In the event Customer resells Products or incorporates Products in an offering to its customers, Customer shall ensure that all such customers or end-users (collectively, “End-Users”) of the Products comply with all relevant Customer obligations under the Agreement, including but not limited to these Terms.  Customer shall enter into an agreement with each of its End-Users that is consistent with, and at least as protective of FLA as, the Agreement, including but not limited to these Terms.  Customer shall indemnify, defend and hold harmless FLA and its affiliates, and their respective officers, directors, agents, employees, successors, and assigns from and against all losses, liabilities, costs (including attorneys’ fees) and expenses arising out of or in connection with any non-compliance of Customer with respect to this Section 1(e).

 

2. PRICES AND TERMS OF PAYMENT

 

(a) Prices.  The Products are sold by FLA to Customer at the rates set forth in the Offer (the “Prices”). In consideration of the sale of Products by FLA, Customer shall pay all the Prices in accordance with the Agreement and this Section 2.  FLA may invoice Customer upon shipment of Products. The Prices are quoted and payable in U.S. Dollars.  The Prices are expressed net of all taxes and exclude shipping and handling costs.  All shipping and handling charges contained in an Offer are estimates only.  The cost of any special packing or special handling requested by Customer shall be added to the Prices.  FLA reserves the right to adjust the Prices for Products not yet delivered to reflect variations in its costs of more than five percent (5%) that take effect between the date of the Agreement and delivery of Products, including any foreign exchange rate fluctuations, raw materials and other costs of manufacturing and distribution, and labor costs.

 

(b) Payment Terms.  All amounts due from Customer to FLA, including the Prices and shipping costs, are payable up-front at the time of placing an Order.  For certain Orders FLA may agree in an Order Acknowledgment to accept a 50% (fifty percent) deposit at the time of Order with the balance due NET 30 days from the date of an FLA invoice.  FLA may change these payment terms, in its discretion, in the event of any non-performance by Customer or any adverse material change in Customer’s credit report.  Customer shall pay all amounts due to FLA in full without any set-off, counterclaim, deduction, tax, or other withholding.

 

(c) Non-Payment.  In the event Customer fails to make any payment due under the Agreement on the due date, FLA may, at its discretion: (i) cancel pending Orders and retain related deposits; (ii) charge Customer interest on all due amounts from the due date until FLA has received full payment thereof, at the rate of eighteen percent (18%) per annum or the applicable statutory rate, whichever is higher; (iii) charge Customer for all costs of payment collection, including attorneys’ fees and expenses; (iv) cancel any credit issued to Customer and require, to its satisfaction, that Customer provides (additional) security, pre-payments or deposits; and (v) implement additional conditional payment terms or accelerate payments schedules for other Orders.

 

3. SHIPMENT OF PRODUCTS

 

(a) Shipment Terms.  Unless otherwise set forth in an Order Acknowledgment, Products are shipped F.O.B. origin (for FLA Products, Needham, Massachusetts).  The method and route of shipment are at FLA’s discretion, unless the Customer supplies explicit shipping instructions and pays any additional expenses associated with such instructions.

 

(b) Timing.  Shipment dates communicated or acknowledged by FLA are approximate only, and although FLA will use commercially reasonable efforts to deliver by such dates, FLA will not be liable, nor will FLA be in breach of its obligations to Customer, for any delay in delivery.   In the event of any delay in delivery of the Products, Customer’s sole and exclusive remedy will be to cancel the Order for undelivered Products.  Production lead times are estimated.  FLA reserves the right to ship an Order in advance of the estimated shipment date.  If Customer causes or requests a shipment delay, or if FLA ships or delivers the Products erroneously as a result of inaccurate or misleading information supplied by Customer, storage and all other additional costs and risks shall be borne by Customer.  

 

(c) Damage.  Customer shall note any damage to Products caused in transit, or shortages thereto, on transport documentation immediately upon receipt of Products, in accordance with the instructions by FLA or the carrier.  All claims for Products damaged or lost in transit must be made by Customer to the carrier. 

 

(d) Acceptance. All Products delivered under the Agreement will be deemed accepted by Customer upon delivery.  Customer will have no right to revoke any acceptance, unless Customer provides FLA notice that the Products received do not conform with the type and number of Products set forth in the Order Acknowledgment within seven (7) days from the date of delivery.  Notwithstanding the foregoing, any use of a Product by Customer or End-Users after delivery will constitute acceptance of that Product by Customer.  FLA shall, at its option and within a reasonable time, correct nonconformites with the type and number of Products set forth in the Order Acknowledgment within the seven (7) day period by  either  or delivering missing or incorrect Products, or crediting the Price paid by Customer for undelivered Products.

 

(e) Returns.  In order to return any Product, Customer must receive a “Return Merchandise Authorization Number” from FLA and return the Product within thirty (30) days of receipt of such number in its original packaging.  No returns will be accepted after this date.  Customer will pay a minimum 25% (twenty-five percent) restocking charge when returning any Product if: (i) it is in new condition, suitable for resale; and (ii) it has not been used, installed, modified, rebuilt, reconditioned, repaired, altered or damaged.  Returns are to be shipped back in their original packaging at Customer’s cost.  Any custom or ‘nonstandard’ equipment is not eligible for return. Higher restocking charges may apply at FLA’s option if FLA determines that the product cannot be resold in a timely manner.

 

4.       HANDLING AND STORAGE OF PRODUCTS AFTER DELIVERY

 

Customer is responsible for ensuring that batteries, LEDs and solar panels are stored in a place that is protected from the elements, in their original packaging.  All batteries must be installed before the date stated on the packaging.  Mechanical parts must not be stored directly on the ground or in dusty areas.  FLA does not recommend storing mechanical components of the FLA Products for a long period of time without adequate ventilation in order to avoid deterioration. 

 

5.       RISK AND TITLE

 

(a) Risk of damage to or loss of Products will pass to Customer upon shipment as set forth in Section 3(a).  Customer shall procure and maintain in full force and effect sufficient insurance policies, naming FLA as an additional insured, with respect to the Products from the date of shipment until legal title passes to Customer.

 

(b) Legal title to Products will pass to Customer only when FLA has received payment for such Products in full and, to the extent permitted by applicable law, FLA has received payment in full of all other amounts due by Customer under any other agreement with FLA (or any of its affiliates).  Until legal title to Products has passed to Customer, Customer shall: (i) not transfer or pledge any of the Products or grant any right or title in the Products to any third-party, except in the normal course of business and against payment or subject to retention of title; and (ii) ensure that the Products remain identifiable as Products owned by FLA.  In the event of non-payment or other breach by Customer, FLA may require that Customer return to FLA, at Customer’s cost (including costs for de-installation), all Products in which the title has not yet passed to Customer, and Customer shall fully cooperate to enable FLA to collect such Products and grant FLA (or its representative) free access to the location of the Products.

6.       WARRANTIES

 

(a) FLA Product Warranties.  FLA warrants that for a period of five (5) years from delivery to Customer the FLA Products will be free from Defects.  A “Defect” (or “Defective”) means, in relation to a FLA Product, that a FLA Product has any defect in material or workmanship which causes the FLA Product to fail to operate in accordance with the specifications provided by FLA, with consideration given to the overall performance of the FLA Product.  Customer acknowledges that an EULA or Third-Party Product terms may limit the warranty period for software (including web or mobile applications).

 

(b) Third-Party Product Warranties.  Certain Third-Party Products are sold subject to limited warranty either accompanying the Third-Party Product or as published on the FLA or third-party website (each a “Third-Party Product Warranty”).  FLA provides no warranty for Third-Party Products.  The Third-Party Product Warranty, if any, is Customer’s exclusive remedy in the event of any Third-Party Product warranty claim.

 

(c) Warranty Redemption.  In order to make a valid warranty claim, Customer shall promptly notify FLA of any allegedly Defective FLA Products prior to expiration of the applicable warranty period.  In the event that FLA decides, in its sole discretion, that a claim under warranty is valid, FLA shall, within a reasonable time, at its own option, repair or offer replacement Products for Defective FLA Products.  If despite reasonable efforts of FLA, a Defective FLA Product cannot be repaired and no replacement product can be supplied, FLA shall make an appropriate refund or credit of monies paid by Customer for those Defective FLA Products.  Any repairs, replacement or other remedy for a Defective FLA Product will not extend or renew the applicable warranty period.  Customer shall obtain consent from FLA on the specifications of any tests it plans to conduct to determine whether a Defect exists.  Replacement products supplied by FLA may have minor deviations in design and/or specifications which do not affect the functionality of the replaced FLA Product.  In the event of any replacement or refund of amounts paid for an FLA Product, FLA may, in its sole discretion require Customer to return such FLA Product to FLA or instruct Customer to destroy it at Customer’s expense.  Customer shall bear the costs of access for remedial warranty efforts by FLA, including access to Customer’s or End-User’s facilities for the removal and replacement of systems or structures, the de-installation of Defective FLA Products, and the re-installation of replacement products.  Customer shall not return any Products to FLA without consent of FLA and unless in accordance with Section 3(d).  In the event that FLA determines that a claim under warranty is not valid, Customer will bear the costs incurred by FLA in handling, testing, and transporting such FLA Products.  The provisions of this Section 6(c) describe FLA’s sole obligation and Customer’s exclusive remedy in the event of any valid FLA Product warranty claim.

 

(d) Limitations of Warranty.  The warranties described in this Section 6 are subject to Customer’s and End-Users’ compliance with each of the following:  (i) proper storage, installation, use, operation, and maintenance of Products, all in accordance with Section 4 hereof, user manuals, warranty policies and other instructions or terms communicated by FLA to Customer; (ii) keeping accurate and complete records of operation and maintenance during the warranty period and providing FLA access to those records upon request; (iii) modification or repair of Products by or on behalf of the Customer only as authorized by in writing FLA; and (iv) not using or relying on the Products for any other applications or purposes than those set forth in the Agreement.  Failure to meet these conditions renders the warranty null and void.  FLA will not be responsible for normal wear and tear, or environmental or stress testing.  The warranties described in this Section 6 do not apply to damage or failure to perform arising as a result of any Force Majeure Event (as defined in Section 11), or from any abuse, misuse, abnormal use, corrosive environments, neglect, exposure or any use or installation in violation of the instructions or restrictions prescribed by FLA or any applicable standard or code.  Customer explicitly acknowledges that certain features or functionality of the Products may rely on the availability and correct functioning of third-party service providers, as may be indicated by FLA, including data storage, connectivity, and communication services.  These are outside of the control of FLA, and FLA will have no responsibility or liability to Customer with respect to such third-party components.  FLA may make changes to the design, materials, fit and finish of Products or change working methods, communication systems, software, or documentation provided that such changes do not materially affect the functionality of the Product.  Unless specifically agreed otherwise, FLA does not warrant the availability, accuracy, completeness, reliability, timeliness, or output from the Products.

 

(e) Warranty Disclaimer.  Except as specifically set forth in this Section 6, FLA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY AGAINST INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE or course of trade and dealing. AN ESSENTIAL PURPOSE OF THE LIMITED WARRANTY AND THE LIMITATIONS SET FORTH IN SECTION 6(d) AND THE DISCLAIMERS SET FORTH IN THIS SECTION 6(e) IS ALLOCATION OF RISKS BETWEEN FLA AND CUSTOMER, WHICH ALLOCATION OF RISKS IS REFLECTED IN THE PRICES.

 

(f) Product Recall.  If FLA determines that a recall, retrofit, update, withdrawal, or any other remedial action related to any Product is required, Customer shall fully cooperate and shall provide such assistance as FLA may require.  Customer shall keep accurate books and records necessary to identify the location of the Products in the event of a Product recall or any other remedial action.

 

7.            Limitation of Liability

 

THE LIABILITY OF FLA AND ITS AFFILIATES FOR ALL CLAIMS OF ANY KIND ARISING FROM OR RELATED TO THE PROVISION OF PRODUCTS TO CUSTOMER, OR OTHERWISE UNDER AN AGREEMENT, INCLUDING ANY INDEMNITIES, PENALTIES OR LIQUIDATED DAMAGE (“CLAIMS”), WILL BE LIMITED TO A MAXIMUM, AGGREGATE TOTAL  OF: (I) THE TOTAL PRICES PAID BY THE CUSTOMER FOR the PRODUCTS TO WHICH SUCH CLAIMS RELATE; OR (II) five hundred thousand U.S. DOLLARS ($500,000), WHICHEVER IS LOWER.  FLA and its affiliates  will not under any circumstances be liable for any lost profits, lost savings, loss of data, loss of reputation, loss of goodwill, indirect, incidental, punitive, special or consequential damages, whether or not such damages are based on tort, warranty, contract or otherwise, even if FLA has been advised, or is aware, of the possibility of such damages.  Customer shall notify FLA of any such Claim within thirty (30) days of the date of the event giving rise to the Claim, and any lawsuit relating to a Claim must be filed within one (1) year of the date of such notification.  Claims that are not brought or filed in accordance with the preceding sentence will be null and void.  The limitations of liability and limitations of actions set forth herein will apply only to the extent not prohibited by applicable law.

 

8. RIGHTS IN SOFTWARE, DOCUMENTATION, AND INTELLECTUAL PROPERTY

 

(a)   Ownership.  All Intellectual Property Rights in and to the Products and associated software and documentation shall remain the sole and exclusive property of FLA, its affiliates, or third-party suppliers, and their respective licensors.  No Intellectual Property Rights are conferred to Customer or any third-party other than explicitly granted under the Agreement.  For the purposes of these Terms, “Intellectual Property Rights” include but are not limited to patents, copyrights, database rights, trademarks, domain names, trade secrets, and know-how of FLA, its affiliates, or third-party suppliers, and their respective licensors.

 

(b) License Grant.  Subject to Customer’s fulfillment of all obligations under the Agreement, the supply of Products (including software embedded in Products) includes a license to Customer under any Intellectual Property Rights of FLA, to the limited extent that such Intellectual Property Rights are embodied or embedded in the Products purchased, to use or resell the Products as sold by FLA.

 

(c) License Limitations.  With respect to any software embedded in a Product or any other software application supplied to Customer, Customer shall not and shall not permit any third-party to: (i) copy, reproduce, distribute, modify, adapt, alter, translate, or create derivative works therefrom; (ii) assign, sublicense, lease, rent, loan, transfer, disclose, or otherwise make available such software or other works; (iii) merge or incorporate such software with or into any other software; or (iv) reverse assemble, decompile, disassemble, or otherwise attempt to derive the source code or the algorithmic nature for such software, or to decode, de-crypt or neutralize any security measures in software or remove or circumvent the protection of software, without authorization from FLA except as explicitly allowed under applicable law.

 

(d) Third-party Rights.  Customer acknowledges that third parties may own Intellectual Property Rights related to the Products.  Customer shall reproduce, without any amendments or changes, any proprietary rights legends of FLA, its affiliates, or their third-party suppliers in any software or documentation provided by FLA.

 

(e) Feedback and Product Data.  FLA will be free to use in any way or form any ideas, suggestions, feedback, or recommendations by Customer (or End-Users) to FLA regarding the Products (“Feedback”), without payment of royalties or other consideration to Customer.  FLA will own all Intellectual Property Rights in Feedback.  

9. INDEMNIFICATION

 

(a) FLA Indemnity.  In the event of a third-party claim alleging that any FLA Product supplied to Customer by FLA infringes the Intellectual Property Rights of such third-party (“IP Claim”), FLA will defend Customer and reimburse Customer for any final award of damages by a court of competent jurisdiction holding that the such FLA Product directly infringes such third-party’s Intellectual Property Rights.  FLA shall have no obligation to defend or indemnify Customer for any IP Claim: (i) arising from or related to any Third-Party Product; (ii) resulting from compliance with Customer’s design, drawings, specifications or instructions; (ii) resulting from use of the FLA Product other than in accordance with its specifications, (iii) resulting from any modification or adaptation of a product, deliverables and/or Service made by or on behalf of Customer; (iv) arising from any third-party Intellectual Property Rights covering any assembly, circuit, combination, method or process, in the manufacture, testing or application in which such Products supplied by FLA may have been used; or (v) resulting from compliance with an industry standard applying to the FLA Product.

 

(b) Customer Indemnity.  Customer shall indemnify, defend and hold harmless FLA and its affiliates, and their officers, directors, agents, employees, successors, and assigns from and against, all losses (including loss of profits or turnover), liabilities, costs (including legal costs and costs incurred in relation to unfinished products) and expenses arising out of or in connection with: (i) a breach by Customer or any End-User of any of the provisions or obligations of the Agreement, including but not limited to these Terms; or (ii) any claim by third parties for any loss, damage or injury or death caused or alleged to be caused by the negligent use, application, or installation of the Products, or caused by any modification of a Product or integration of a Product into other products not authorized by FLA, by Customer or its End-Users, or their respective contractors, agents, or affiliates (“Third-Party Claim”). 

 

(c) Indemnification Procedure.  In the event of any IP Claim or Third-Party Claim (each an “Indemnified Claim”), the party seeking indemnification must give the other party written notice of such Indemnified Claim promptly after such party first becomes aware of it.  The party seeking indemnification shall not enter into any settlement in connection with any such Indemnified Claim, nor incur any costs or expenses in connection with any such Indemnified Claim without the prior consent of the other party.  The indemnifying party will have the right to choose counsel to defend against the Indemnified Claim (subject to approval of such counsel by the indemnified party, which approval may not be unreasonably withheld, conditioned, or delayed) and to control and settle the Indemnified Claim.  The indemnified party will have the right to participate in the defense of the Indemnified Claim at its sole expense.

 

(d) Infringement Resolution.  If the Products are, or in FLA’s opinion, are likely to become, the subject of any IP Claim, FLA may at its own option and at its own expense either: (i) procure for Customer the right to continue using such Product; or (ii) provide a replacement non-infringing product for such Product of equivalent functionality; or (iii) modify such Product such that it is no longer infringing; or (iv) make an appropriate refund or credit of monies paid by Customer for that Product.  Subject to the exclusions and limitations set forth in Section 7, Sections 9(a) and 9(d) state the entire liability of FLA for infringement of third-party Intellectual Property Rights in connection with the supply of Products.

 

10. CONFIDENTIALITY

 

Customer shall maintain any FLA technical, commercial and financial information, including any Offer and the Prices, as confidential and shall not disclose such information to any third-party.  Customer shall not use any confidential information for any purpose other than as agreed by the parties and in relation to the Agreement. 

 

 

11.   FORCE MAJEURE

 

FLA shall be not be liable for delays in the performance of its obligations hereunder due to a Force Majeure Event.  “Force Majeure Event” means conditions or other circumstances, such as ‘acts of God’, that: (i) were not foreseen by FLA, and could not have been reasonably foreseen by FLA; (ii) are beyond the reasonable control of FLA; and (iii) materially hinder or interfere with the ability of FLA to perform or to complete performance.  Examples of Force Majeure Events include wars, floods, strikes and labor disputes, unusual delay in transportation, administrative or judicial seizures, embargos, quarantines, restrictions,  wars,  defaults  by sub-contractors,  acts  of state, restrictions on foreign exchange, imports or exports, epidemics, earthquakes, severe adverse weather conditions not reasonably anticipated and defaults or delays on the part of the carrier. 

 

12. APPLICABLE LAW AND JURISDICTION

 

The Agreement, including but not limited to these Terms, and all matters arising out of or relating thereto, including the Products provided hereunder, whether sounding in contract, tort, or statute, for all purposes shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to any conflict of laws principles that would cause the laws of any other jurisdiction to apply.  Any action or proceeding by either of the parties to enforce the Agreement or any part thereof shall be brought only in a state or federal court located in Suffolk County, Massachusetts.  The parties hereby irrevocably submit to the exclusive jurisdiction of these courts and waive the defense of inconvenient forum to the maintenance of any action or proceeding in such venue.  Notwithstanding the foregoing, FLA may seek injunctive relief to enforce its rights hereunder in any court of competent jurisdiction.

 

13. ASSIGNMENT

 

Customer may not assign the Agreement, or any of its rights or obligations thereunder, without

the prior consent of FLA.  FLA may delegate, assign, sell, novate or subcontract in part or in whole its obligations and rights (including receivables) under any Agreement to any of its affiliates or any third-party without the prior consent of Customer, and if such consent would be required under applicable law, such consent is herewith provided, in which event Customer shall cooperate with FLA’s efforts, including providing relevant information, in executing documents and making payments to accounts or third parties as notified by FLA.

 

14. ETHICAL DEALINGS

 

Customer will be familiar with and will strictly comply with all laws and regulations on bribery, corruption, and prohibited business practices, including but not limited to discrimination against persons or groups of persons on the ground of race, religion, color, sex, marital status, age, national origin, ancestry, disability, sexual orientation, medication condition or in any manner prohibited by federal, state or local laws.  Customer has not and will not offer, promise, make or agree to make any payments or gifts (of money or anything of value) directly or indirectly to anyone for the purpose of influencing, or inducing anyone to influence decisions in favor of Customer or FLA.

 

15. HEALTH AND SAFETY

 

(a) The parties shall comply with all applicable legislation, rules and/or regulations on the health and safety of workers and/or employees, as well as health and safety of the public in the vicinity. Customer shall provide and shall ensure that its employees, agents, contractors, or subcontractors provide safe work surroundings for FLA personnel and other representatives. Customer shall take, and shall ensure that its employees, agents, contractors, or subcontractors take those measures prescribed by law and any other measures necessary for the prevention of accidents at the site and to ensure the health and safety of FLA personnel at the site.  Customer shall timely inform FLA personnel of required safety precautions and advise FLA of all applicable site-specific health, safety, security and environmental requirements and procedures.  FLA has the right, but not the obligation, to, from time to time, review and inspect applicable health, safety, security and environmental documentation, procedures, and conditions at the site.

 

(b) Customer shall ensure that no hazardous materials are present at the site.  If hazardous materials are present, Customer shall handle, and shall ensure that its employees, agents, contractors, or subcontractors handle these properly and if applicable, arrange for the appropriate removal and disposal thereof at the expense of Customer.  If, in the reasonable opinion of FLA, the health, safety, or security of FLA personnel or the site is, or may be, imperiled by security risks, terrorist acts or threats, the presence of or threat of exposure to hazardous materials, or unsafe working conditions, FLA may, in addition to other rights or remedies available to it, evacuate some or all FLA personnel from the site (with the reasonable assistance of Customer), and suspend performance of all or any part of an Agreement with no further liability to Customer.

 

(c) Conditions at a site that differ materially from those disclosed by Customer, or previously unknown physical conditions at site that differ materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Agreement, will be deemed an Order Change.

 

16. BREACH; SUSPENSION; TERMINATION

 

(a) In the event of: (i) a breach by Customer of any of the provisions of the Agreement, including any failure to pay any amount as and when due; (ii) in the reasonable opinion of FLA, the financial position of the Customer (or a material change thereof) is likely to affect Customer’s ability to perform its obligations under the Agreement; (iii) any proceedings in insolvency, bankruptcy (including reorganization), liquidation or winding up are instituted by or against Customer, whether filed or instituted by Customer (voluntarily or involuntarily), a trustee or receiver is appointed over Customer, or any assignment is made for the benefit of creditors of Customer; (iv) Customer ceases, or threatens to cease, to carry on business; or (v) the control over or ownership of Customer changes, then FLA may declare all amounts outstanding by Customer immediately due and payable and may set off any amount that FLA (or any of its affiliates) owes to Customer under any agreement between the parties including any advance payments or deposits made by Customer, against amounts due pursuant to Section 16(b).  In addition, FLA may in its sole discretion by notice to Customer with immediate effect suspend or cancel any performance due from FLA (including production, delivery and commissioning of Products, and obligations under warranty) or terminate the Agreement or any part thereof, including any credit terms offered to Customer, without any liability.  FLA may only terminate the Agreement pursuant to Subsection 16(a)(i) for any breach that is capable of being remedied if Customer fails to cure such breach within fourteen (14) days of notice from FLA.  FLA may only terminate the Agreement pursuant to Subsection 16(a)(ii) if Customer fails to provide FLA with a bank guarantee or other security reasonably acceptable to FLA within fourteen (14) days of notice from FLA. 

 

(b) Upon any termination of the Agreement: (i) all rights and licenses granted to Customer under the Agreement will immediately cease; (ii) Customer shall return, delete (including from all hard disks and memory) or destroy (and a duly appointed officer shall certify to such destruction) all FLA information disclosed under Section 10, including any software not embedded in Products, and all copies thereof; (iii) Customer shall return to FLA, at Customer’s expense, any Products for which title has not passed to Customer in accordance with Section 5(b) and any other products, systems or equipment supplied by FLA; and (iv) all reasonable costs and expenses incurred by FLA (including a reasonable profit) for any activities related to work performed by FLA prior to such termination will be considered due, payable and non-refundable.  The provisions of Subsection 16(b)(iv) shall also apply in the event that any suspension of performance by FLA in accordance with these Terms lasts for longer than two (2) months.

 

(c) The rights of FLA pursuant to this Section 16 will be in addition to any other rights and remedies FLA may have at law or in equity.  In the event of termination of the Agreement, the following Sections of these Terms shall survive such termination:  2(c), 3(d), 6(f), 7, 8(c), 8(e), 9, 10, 12, 16(c) and 18.

 

17. PRIVACY AND USE OF DATA

 

(a) Each party shall comply with all applicable data protection laws.  Unless agreed otherwise by the parties, FLA (or its subcontractors) will not process information relating to any identified or identifiable natural persons (“Personal Data”) for Customer or on Customer’s behalf.  In the event that FLA processes Personal Data as part of its own legitimate business purposes, it will do so in accordance with the Privacy Policy.

 

(b) Customer acknowledges and agrees that FLA and its affiliates (and their respective subcontractors) may collect information and data generated from the FLA Products (including any Third-Party Product, service or system provided in conjunction with the FLA Product) or the use thereof (“Usage Data”) and that FLA shall own and may exercise all Intellectual Property Rights therein.  FLA grants to Customer a limited non-exclusive, non-sublicensable and non-transferable (except to End-Users in accordance with Section 1(e)) license to use the Usage Data solely for its internal use in connection with the operation of the FLA Products.  Unless otherwise stated in the Agreement (including but not limited to an EULA) or the Privacy Policy, Usage Data will exclude any Personal Data and any data that would enable the identification of Customer or any third-party.

 

18. MISCELLANEOUS

 

(a) The invalidity or unenforceability of any provision of these Terms or any other component of the Agreement will not affect the validity or enforceability of any other provision thereof, all of which will remain in full force and effect.  In the event of such finding of invalidity or unenforceability, the parties shall endeavor to substitute the invalid or unenforceable provision(s) by such effective provision(s) as will most closely correspond with the original intention of the provision(s) so voided.  At reasonable notice, Customer shall assist FLA in verifying Customer’s compliance with the Agreement.

 

(b) Any notices provided pursuant to the Agreement shall be effective three (3) days after deposit in the U.S. Mail if sent by Certified Mail Return Receipt Requested, or immediately if by in-person delivery or confirmed delivery by a reputable overnight carrier, to the parties at the addresses set forth in the Order Acknowledgment.

 

(c) Any right of FLA set out in these Terms will be without prejudice to any rights or remedies FLA may have under the Agreement or at law or in equity.  Customer acknowledges that Fonroche Lighting S.A. is intended to be a third-party beneficiary for purposes of all benefits under, and may enforce the provisions of the Agreement, including these Terms, where applicable.  The failure or the delay of either party to enforce any provision of the Agreement, including but not limited to these Terms, will not constitute a waiver of such provision or a waiver of the right to enforce it.

 

The Agreement (including but not limited to these Terms) states the entire understanding and agreement between the parties as to the sale of Products under that Agreement and will supersede any prior promises, agreements, representations, undertakings or implications whether made orally or in writing between FLA and Customer with respect to the subject thereof.  The parties expressly acknowledge that, in entering into the Agreement, no reliance has been placed on any representations which have not been incorporated as part of the Agreement.  No variation to the Agreement will be binding upon either party unless made in writing and signed by an authorized representative of each of the parties.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

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