TERMS AND CONDITIONS FOR SALE

  1. GENERALLY. These Terms & Conditions of Sale (hereinafter, these “Terms”) apply to all sales made by Peli Products, S.L.U., its affiliates and subsidiaries (collectively, “Peli” or “Seller”). These Terms govern any and all sales reflected on the sales quotation, order acknowledgement, invoice, or other document accompanying these Terms. Buyer understands and agrees that by purchasing or ordering Products (as defined in Section 2 below) from Peli, Buyer accepts and agrees to be bound by these Terms.
  2. INTEGRATED AGREEMENT. These Terms constitute an offer by Seller to sell certain goods and/or services (collectively, the “Products”) to Buyer. Except as otherwise expressly agreed by Seller in writing, these Terms whether accepted by Buyer explicitly, by acceptance of delivery of Products from Seller, or otherwise, shall constitute the entire agreement between Seller and Buyer on the subject matter hereof, and shall supersede all prior and contemporaneous oral or written agreements, communications, and/or negotiations between the parties, including but not limited to all additional or differing terms and/or conditions contained in Buyer-supplied documents and correspondence. Seller's acceptance of any Buyer order is expressly limited to these Terms, and Seller hereby objects to and rejects any such additional or different terms of any kind supplied by Buyer. These Terms incorporate the Seller's current policies, including, but not limited to, its Selective Distribution Policy (a copy of which is available at https://media.pelican.com/docs/terms-and-conditions/Peli-Selective-Distribution-Policy.pdf) and its Trademark and Copyright Policy (a copy of which is available at https://media.pelican.com/docs/terms-and-conditions/Peli-Trademark-Copyright-Policy.pdf). Notwithstanding the foregoing, if Buyer is an authorized dealer or distributor of Seller's Products and a fully executed dealer or distribution agreement ("Distribution Agreement") is in effect between the parties, any inconsistent terms in the Distribution Agreement shall govern. The remaining Terms herein shall apply to the extent they are consistent with the intent of the Distribution Agreement. In all other instances, the Terms set forth herein shall apply to the exclusion of any other terms from any source.
  3. NO EXCLUSIVITY. These Terms shall not be construed as effecting a distribution, franchise, agency, or supply agreement, and these Terms confer no rights to exclusivity upon Buyer. Seller makes no representation that it will deal exclusively with Buyer, and Seller makes no representation that its products will be available here under on the demand of Seller. Neither party is bound to effect any purchase or sale of any of Seller's products except to the extent Buyer places, and Seller accepts, an order in accordance with these Terms.
  4. MODIFICATIONS; NO WAIVER. These Terms shall only be modified upon the execution of a written Amendment duly executed by the authorized representatives of the parties. A party's failure to assert a right provided herein shall not constitute that party's waiver thereof, and a party's failure to assert a breach of any term or condition in these Terms shall not be deemed a waiver of the breach of similar provisions in the future.
  5. CANCELLATION/CHANGES. Upon acceptance of Buyer's order by Seller, Buyer's order shall not be subject to cancellation, change, reduction in amount or quantity, suspension, or deferment of deliveries except in Seller's sole and absolute discretion, as evidenced in a written change order duly executed by the parties here to and made subject to these Terms. Buyer shall be responsible for any additional fee's and expenses, and for all losses and damages incurred by Seller, as a result of the change order. Custom orders are not subject to cancellation once accepted by Seller.
  6. PRICE. Prices quoted by Seller are Ex-Works and valid for a period of thirty (30) days from the date quoted, unless otherwise stated in writing by Seller. Seller reserves the right to correct any clerical errors and/or omissions in any prices quoted.
  7. PAYMENT. The payment term for Products sold to the Buyer hereunder is net thirty (30) days. Unless otherwise agreed in writing by the Seller, payment is due in Euros. All Buyer orders placed on credit with the Seller are subject to credit approval by the Seller. Orders received from buyers with delinquent accounts will not be shipped until overdue balances have been paid. A monthly service charge of one and one-half percent (1.50%), or the highest rate permitted by law, will be added to all past due balances. Any and all Seller-provided discounts or allowances shall become null and void if the Buyer does not pay the Seller's properly submitted invoices when due. If the Buyer fails to make payments when due, the Seller may, at its option and in its sole discretion, hold or cancel the unshipped balance of any order and seek any other remedies available in equity or at law. The Buyer shall reimburse the Seller for any costs incurred in the collection of outstanding amounts due, including, without limitation, the Seller's reasonable attorneys' fees, reasonable collection fees, and related costs.
  8. LIEN SECURING PAYMENT. In the event that Buyer has not prepaid in full for the Products ordered pursuant to these Terms, Buyer hereby grants Seller a security interest in the Products to secure payment of the purchase price and any other amounts owed to Seller under these Terms. This security interest shall extend to all Products delivered to Buyer, as well as any proceeds therefrom, until such time as Buyer has made full payment for all Products and satisfied all other obligations to Seller. Buyer agrees to execute and deliver any documents and take any actions reasonably requested by Seller to perfect and maintain this security interest, including but not limited to the execution of financing statements as required under the Uniform Commercial Code or other applicable laws. Should Buyer fail to comply with this requirement, Seller is authorized to file such financing statements or similar documents without Buyer's signature, to the extent permitted by law. In the event of Buyer's default, including but not limited to nonpayment or underpayment of amounts due, Seller shall have all rights and remedies of a secured party under applicable law, including the right to repossess and sell the Products in satisfaction of Buyer's obligations. Buyer shall reimburse Seller for all costs and expenses incurred in enforcing this security interest, including reasonable attorneys' fees and expenses. The security interest granted herein is in addition to, and not in substitution for, any other rights or remedies available to Seller under these Terms or applicable law.
  9. TAXES. Seller's quoted prices exclude any applicable sales or other transaction-based taxes. Where Seller is legally required to collect tax from Buyer, such taxes will be separately stated on Seller's invoice, and in the absence of Seller's receipt of a properly completed exemption certificate from Buyer, Buyer agrees to remit all such taxes to Seller when due.
  10. SHIPPING. All orders by Buyer of Seller's Products are shipped FCA Seller's or 3PL's facility, unless otherwise specified in writing by Seller. Risk of loss of the Products shall pass to Buyer at the time the Products are tendered for shipment to the Buyer's designated carrier, or in the absence of such designation by Buyer, to the carrier selected by Seller on Buyer's behalf. Any claims for damaged or missing Products shall be presented within 45 days of receipt of shipment by Buyer to Seller, and shall be the sole responsibility of the carrier designated by Buyer, or in the absence of a carrier designated by Buyer, to the carrier selected by Seller. Orders and shipments with value of goods under EUR 1.000 are subject to a 15% service charge unless otherwise agreed. Delivery dates provided by Seller are estimates and are not guaranteed.
  11. RETURNS. Returned Products will not be accepted without Seller's prior written authorization, and all delivered conforming products returned by Buyer to Seller are subject to a 15% Seller restocking fee. Custom Products made to the specifications of Buyer shall not be returned to Seller after the Products have been tendered for delivery.
  12. PRODUCT DEVELOPMENT& MATERIALS. Except as otherwise expressly set forth herein, Seller may at any time, in its sole and absolute discretion, furnish Products that include changes and improvements in design and construction. Seller may furnish suitable substitutes for any component materials that cannot be obtained in sufficient quantities due to federal priority-rated orders, allocations of materials, imposition of laws and regulations or due to unavailability of materials from Seller's suppliers.
  13. TOOLING FOR CUSTOM PRODUCTS. If Buyer submits an order to Seller for a custom Product to Buyer's specifications, any tooling, molds, or other fixtures or facilities (collectively, “Tooling”) manufactured or acquired by Seller to manufacture such custom product(s), including any intellectual property rights in the Tooling, shall be and remain the sole and exclusive property of the Seller and shall be deemed Confidential Information, unless otherwise exempted.
  14. INTELLECTUAL PROPERTY. Nothing contained in these Terms is intended by Seller to grant or license to Buyer any intellectual property rights in the Products or otherwise under any patent, trademark, copyright, or trade secret of Seller. Buyer shall acquire no intellectual property rights or interests in any of Seller's products, processes, know-how, property, or other intellectual property of Seller, and ownership there of shall remain fully vested in Seller throughout the performance of these Terms.
  15. IMPORT/EXPORT; ANTI-CORRUPTION COMPLIANCE. Seller's manufacture, shipment, and delivery of products to Buyer are subject at all times to any prohibition(s), restriction(s), priority allocation(s), laws and regulations, or other condition(s) imposed by, or on behalf of, the applicable governmental authority. Buyer agrees that it shall at all times comply with all applicable import, export, and anti-corruption, anti-money laundering, or other statutes and regulations of the applicable governmental authority, including without limitation, the U.S. Foreign Corrupt Practices Act of 1977 (as amended), if applicable, as well as any similar and applicable laws in the country in which Buyer purchases or receives products. Buyer agrees to indemnify and hold harmless Seller from all claims, demands, damages, costs, fines, penalties, reasonable attorneys' fees, and all other expenses arising from Buyer's failure to comply with this Section 15, and/or with the applicable export control laws and regulations in effect.
  16. SELLER'S WARRANTY. THE WARRANTY AND LIMITATION OF REMEDIES APPLICABLE TO THE PRODUCTS SOLD BY SELLER PURSUANT TO THESE TERMS ARE SET FORTH ON THE PELI WEBSITE LOCATED AT https://www.peli.com/eu/en/support/guarantee-of-excellence/. THESE WARRANTY TERMS ARE HEREBY INCORPORATED BY THIS REFERENCE AS IF FULLY STATED HEREIN. WARRANTIES AND REMEDIES ARE BUYER'S EXCLUSIVE REMEDY FOR CLAIMS ARISING FROM THE PRODUCTS SUPPLIED BY SELLER, AND SUCH REMEDIES SHALL BE IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES AND REMEDIES. SELLER EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY NATURE WHATSOEVER, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY. TO THE FULL EXTENT PERMITTED BY LAW, INCLUDING BY AUSTRALIAN CONSUMER LAW § 64A AND § 276A, WHERE APPLICABLE, SELLER WILL NOT BE RESPONSIBLE OR LIABLE TO BUYER FOR AND DAMAGES ARISING OUT OF BUYER'S PURCHASE, POSSESSION, OR USE OF ANY PRODUCT SUPPLIED BY SELLER HERE UNDER.
  17. CONFIDENTIALITY. These Terms, prices, data, designs, and/or other information contained in Seller's quotation or describing Seller's products or processes are the proprietary and confidential information of Seller (“Confidential Information”). Buyer agrees to preserve the confidentiality of Seller's Confidential Information and Buyer shall only disclose Seller's Confidential Information to members and employees of Buyer's organization on a “need to know” basis. Buyer and Seller agree that no information relating to Buyer's order, or Seller's fulfillment thereof, including the existence of these Terms, shall be provided to any third party without the express written consent of the other party hereto. Upon the termination or expiration of these Terms, and without the need for a written request by the disclosing party, Buyer shall return to Seller or irretrievably destroy and Seller shall return to Buyer or irretrievably destroy any printed, electronic, or other Confidential Information disclosed hereunder. Notwithstanding the foregoing, any separate confidentiality and/or nondisclosure agreements fully executed between the parties shall remain in full force and effect for their stated term and shall take precedence over Section 17 (Confidentiality) of these Terms.
  18. INDEMNITY.
  19. 18.1 Seller's Indemnification. Seller agrees to indemnify, defend, and hold Buyer harmless from and against any and all claims, demands, actions, suits, damages, liabilities, costs, and expenses (including reasonable attorneys' fees and expenses) arising out of or related to any claim that one or more of Seller's Products infringes upon, misappropriates, or violates any patent, copyright, trade secret, or other intellectual property rights of a third party. This indemnification obligation is contingent upon Buyer: (i) promptly notifying Seller in writing of any such claim, (ii) providing Seller with reasonable assistance in defending such claim (at Seller's expense), and (iii) granting Seller sole control over the defense and settlement of the claim. Seller shall not settle any such claim without Buyer's prior written consent, which shall not be unreasonably withheld, conditioned, or delayed.
  20. 18.2 Buyer's Indemnification. Buyer agrees to indemnify, defend, and hold Seller harmless from and against any and all claims, demands, actions, suits, damages, liabilities, costs, and expenses (including reasonable attorneys' fees and expenses) arising out of or related to: (i) Buyer's use, resale, or distribution of the Products, (ii) any modification made by Buyer to the Products, (iii) any combination of the Products with other products, processes, or materials not supplied or approved by Seller, or (iv) any breach by Buyer of these Terms. This indemnification obligation is contingent upon Seller: (i) promptly notifying Buyer in writing of any such claim, (ii) providing Buyer with reasonable assistance in defending such claim (at Buyer's expense), and (iii) granting Buyer sole control over the defense and settlement of the claim. Buyer shall not settle any such claim without Seller's prior written consent, which shall not be unreasonably withheld, conditioned, or delayed.
  21. 18.3 Mutual Indemnification. Each party shall indemnify, defend, and hold the other party harmless from and against any and all claims, demands, actions, suits, damages, liabilities, costs, and expenses (including reasonable attorneys' fees and expenses) arising out of or related to the indemnifying party's gross negligence, willful misconduct, or violation of applicable laws and regulations.
  22. 18.4 Additional Provisions. The indemnification obligations set forth in this Section 18 are in addition to, and not in substitution for, any other rights or remedies that may be available to either party at law or in equity. The provisions of this Section 18 shall survive the termination or expiration of these Terms.
  23. LIMITATION OF LIABILITY. THE PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, THIRD-PARTY CLAIMS OR INJURY TO PERSONS OR PROPERTY. UNLESS A SHORTER STATUTE OF LIMITATIONS APPLIES BY LAW OR CLAIMS RELATE TO BUYER'S NONPAYMENT OR UNDERPAYMENT, ALL CLAIMS MUST BE FILED WITHIN ONE YEAR OF WHEN THE CLAIMANT KNEW OR SHOULD HAVE KNOWN OF THE FACTS GIVING RISE TO THE CLAIM. THIS APPLIES TO CLAIMS ARISING FROM THESE TERMS, RELATED AGREEMENTS, OR THE PARTIES' RELATIONSHIP.
  24. GOVERNING LAW, VENUE & WAIVER OF TRIAL JURY. These Terms shall be governed by the laws of Germany, excluding its choice of law principles and any conflict of law rules that would apply the laws of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply, except for Australian deliveries where CISG applies. Any disputes shall be brought exclusively in the courts in Sachsen, Germany, with parties waiving objections to venue. Both parties irrevocably waive the right to trial by jury in any action arising under these Terms. Final judgments are conclusive and enforceable by law or equity.
  25. FORCE MAJEURE. Other than Buyer's payment obligations, neither party shall be liable for any failure or delay in performing its obligations under these Terms if such failure or delay is due to circumstances beyond its reasonable control, including but not limited to acts of God, war, terrorism, strikes, labor disputes or slow-downs, epidemics, pandemics, governmental orders or regulations, fire, flood, natural disaster, mechanical breakdown, unavailability of utilities or transportation, or any other cause, whether similar or dissimilar, beyond the reasonable control of the affected party. The affected party shall promptly notify the other party of such force majeure condition and use reasonable efforts to mitigate the impact of such condition.
  26. ASSIGNMENT Buyer shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Buyer of any of its obligations under these Terms.
  27. NO THIRD-PARTY BENEFICIARIES. Buyer and Seller agree that these Terms are not intended to and shall not be construed to give any third party any interest or rights (including without limitation any rights as a third-party beneficiary, whether intended or otherwise) with respect to or in connection with any right, obligation, or provision contained in or contemplated by these Terms.
  28. SEVERABILITY. If any of the provisions in these Terms are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be deleted to the minimum extent necessary, and these Terms shall otherwise remain in full force and effect as if the offending provision had not been included.
  29. SURVIVAL. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms, including but not limited to: Confidentiality (Section 17), Indemnity (Section 18), Limitation of Liability (Section 19), and Governing Law (Section 20).

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