Preciosa International, Inc. Purchase Terms for Customers

Preciosa International, Inc. (“Preciosa”) manufactures (or has one of its affiliated companies manufacture), sells and delivers to Buyer goods (“goods”) only pursuant to the terms and conditions contained herein. Preciosa sells only custom-made goods. Information regarding the design, price, quantity and other order-specific information shall be as agreed upon between Preciosa and Buyer and confirmed in a purchase order or other confirming instrument (an “Order”). These terms and conditions, together with the order-specific information contained in the Order shall constitute the entire agreement between Preciosa and Buyer. In the event of a conflict between any terms and conditions contained herein and those contained in an Order, the Order shall prevail. No other terms or conditions (including any pre-printed terms and conditions on the Order) shall be of any effect unless agreed to in writing by Preciosa. Any additional or different terms or conditions contained in any other document of Buyer, or Buyer’s response to these terms and conditions shall be deemed objected to by Preciosa and shall be of no effect. Buyer will be deemed to have agreed to these terms and conditions if Buyer submits an Order to Preciosa for goods or accepts delivery of any part of the goods.

1. ORDERS; INVOICES - Orders issued to Preciosa shall be deemed to have been issued by an authorized representative of Buyer. Invoices will be sent to Buyer at Buyer’s address as set forth on the face of the Order unless otherwise specified in Buyer’s
2. TERMS OF PAYMENT - Except as provided in this Section 2, all invoices shall be due and payable within thirty (30) days of Preciosa’s date of invoice. Buyer shall pay 50% of the price as a deposit within seven (7) days of Preciosa’s acceptance of Buyer’s Order. Differing payment terms will only be granted on an Order-by-Order basis at the discretion of Preciosa. Preciosa, without notice, may change or withdraw extensions of credit at any time, in which event Preciosa may require cash payments and/or collateral security for account balances. All indebtedness outstanding for more than 30 days from the date of Preciosa’s invoice shall be subject to a late payment charge equal to the lesser of (i) 1 1/2% per month, or (ii) the highest rate permitted by applicable law. If Preciosa finds it necessary to obtain assistance in collecting past due balances, Buyer shall pay Preciosa’s reasonable attorney fees, collection fees and court If Preciosa has to return a check to Buyer for any reason, Buyer shall pay Preciosa a service charge of $25.00 for each such check.
3. FREIGHT – Buyer is responsible for all freight charges and handling charges. Specific shipping terms will be as agreed upon in an accepted Order.  Buyer shall be solely responsible for all tariffs, customs duties, import taxes, value-added taxes, governmental charges, customs clearance fees, brokerage fees, and any similar charges imposed in the importation, exploitation, or delivery of the goods, including any increases in the rate of such charges, newly imposed charges, reclassifications, and/or retroactive assessments imposed between the date of Buyer’s Order and the delivery of the Goods (collectively, “Impositions”).
4. DELIVERIES – Title to and risk of loss for all goods shall pass to Buyer upon Preciosa’s delivery thereof to the carrier. Shipments will be made via carrier selected by Preciosa. Preciosa will endeavor to ship in another manner requested by Buyer, at Buyer’s expense. Preciosa shall not be liable for shipment delays, or any loss or damage to goods while in transit, and all claims therefore shall be made immediately by Buyer to the carrier. Specified shipping date(s) are approximate only. Preciosa reserves the right to deliver goods in installments unless otherwise agreed in the applicable Order. Installment deliveries will be invoiced by Preciosa at time of shipment. Delay in any installment delivery shall not relieve Buyer of its obligation to accept all remaining installment deliveries pursuant the applicable
5. FORCE MAJEURE – Preciosa shall not be liable to Buyer or any other person, and Buyer shall make no claim against Preciosa, for any loss, liability, cost, damage or expense (each a “Loss”) resulting from Preciosa’s failure or delay in the performance of any obligation under this Agreement due to events beyond its reasonable control, including, but not limited to, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, wars, riots and public disorder, sabotage, strikes, lockouts, labor disputes, labor shortages, work slowdowns, stoppages or delays, shortages or failures or delays of energy, materials, supplies or equipment, transportation embargoes or delays, acts of God, breakdown in machinery or equipment, disease, epidemic, pandemic, or acts or regulations or priorities of the federal, state or local governments. Preciosa’s period of performance shall be extended for the period of such failure or delay, and when the event causing such failure or delay in performance shall cease, Preciosa can complete its performance of an Order. Buyer shall make no claim for any Loss due to any such failure or delay, and agrees that any such Loss shall be fully compensated for by Preciosa’s completion of the Order. Buyer shall not impose any charge back, offset or other adjustment to the contract price which is not pre- approved in writing by
6. PRICES, SPECIFICATIONS AND QUOTATIONS – (a) Prices, delivery terms and specifications are subject to change due to delays in obtaining materials, permits, or for any other good faith reason which extends the time of performance beyond that originally contemplated. (b) Preciosa’s written quotations to sell shall be binding on Preciosa only for 60 days from the date of the quotation, unless otherwise specified. Orders accepted by Preciosa within the period designated in the quotation will be price protected for delivery for 90 days from the date of that Order. Preciosa reserves the right to withdraw any price quotation at any time for any reason prior to Preciosa’s acceptance of an Order. (c) Prices for lighting products are quoted without lamps unless otherwise specified in an If lighting products are furnished and/or installed by Preciosa, it is for Buyer’s convenience and Buyer assumes the risk of loss or damage to the products and lamps while in transit. (d) Preciosa will exercise reasonable commercial efforts to avoid errors in its website, electronic communications, catalogs, price sheets and other publications, but disclaims all liability therefore should any occur. (e) Prices are subject to all Impositions. (f) Preciosa shall treat additions to accepted Orders as separate Orders which will be priced and invoiced accordingly. (g) Drawings and specifications approved by Purchaser replace and supercede previous versions.  (h) Each Order which is accepted by Preciosa shall be independent of every other Order, and Preciosa will not be bound by general or blanket instructions contained in or referred to in any Order. Order specifications and instructions must appear on the face of the Order itself.(i) If Buyer asks Preciosa to delay shipment of any goods after they have been manufactured and made ready for shipment, Buyer shall pay for the goods and for storage charges until Preciosa receives instructions from Buyer to ship the goods. (j) If Buyer refuses to accept any shipment from Preciosa, Buyer shall nonetheless be liable for the full payment thereof. Buyer shall also be liable for all of Preciosa’s rehandling, reshipping, restocking and storage charges. (k) Preciosa reserves the right to change any design, material, mean or method of manufacturing its goods if the change does not alter the visible appearance of the goods nor adversely affect their performance or function. (l) Orders containing a phrase to the effect that “all material to be supplied as per project plans and specifications” are subject to Preciosa’s separate written acceptance. (m)  (n) All additions, deletions or other changes to an Order are subject to these terms and conditions. (m) Orders marked in effect “Hold for Release” will not be entered for processing until Preciosa receives and accepts Buyer’s written release.
7. CANCELLATION OF AN ORDER. – An Order may not be cancelled without Preciosa’s written consent. If Preciosa consents to the cancellation of an Order, Preciosa reserves the right to assess a cancellation fee, which will primarily be based on actual time and costs incurred by Preciosa from the time the Order is received to the date of cancellation, including by way of example only, costs of materials, engineering costs, the cost of pre-production labor and production labor, costs to produce and ship samples, plus a reasonable profit thereon.
8. NO RETURNS – Goods are not returnable.
9. LIMITED WARRANTIES, LIMITATIONS OF LIABILITY AND CLAIMS – Preciosa shall have no warranty liability or obligations whatsoever with respect to goods which are not fully paid for. (a) All warranties are expressed in this Section 9 only and there are no other warranties, whether express or implied or statutory. For a period of two (2) years from the date of shipment, Preciosa warrants to Buyer that goods manufactured by Preciosa are (i) under normal use and service, in accordance with Preciosa’s recommendations and specifications, merchantable solely to the extent that they are free of defective workmanship and material, but not against normal wear and tear, (ii) unless otherwise specified, are listed by a recognized testing laboratory or manufactured with components listed or recognized by a recognized testing laboratory, and (iii) Due to the handmade nature of the goods, Preciosa does not warrant and buyer accepts minor deviations customary for such production, including deviations in color (up to 5%), metal finishes (up to 5%), dimensions and shape (up to 5%), and weight (up to 10%). Such deviations shall not constitute defects or non-conformity. With respect to goods sold by Preciosa but not manufactured by Preciosa, Preciosa shall make available to Buyer the manufacturer’s warranty therefore but shall have no other liability therefore. With further respect to goods not manufactured by Preciosa, warranty claims may be sent, and the related goods may be returned to Preciosa as set forth in the last sentence of Section 9(d), and Preciosa will, as an accommodation to Buyer, forward them to the manufacturer for resolution of Buyer’s claim. Preciosa shall not be responsible for any such resolution which Buyer and the manufacturer of such goods may reach. (b) Preciosa shall have no warranty liability or other liability to Buyer or to any other person, for any Loss, under any circumstance, if any goods or any parts or components thereof have been (1) repaired or altered by anyone other than Preciosa, (2) misused or neglected or (3) used for a purpose not intended, or in a manner contrary to, prevailing commercial practices or to Preciosa’s printed instructions or specifications. (c) Buyer waives all claims for defective or nonconforming goods, shortages, and other errors in shipping unless Buyer is in complete compliance with this Section 9. (d) Buyer’s exclusive remedy and Preciosa’s sole liability under this Agreement on any claim, whether tort, contract, warranty or otherwise, shall be limited, at Preciosa’s option either to repair or to replace without charge the goods. In lieu of making any repairs or replacing any goods, Preciosa reserves the right to refund the purchase price of the goods or to make field repairs, in which event Buyer shall cooperate with Preciosa in arranging for the same. Preciosa shall endeavor to promptly resolve claims for shortages or for other errors in shipping nonconforming goods, but Preciosa shall have no liability for any delay in doing so. In no event shall Preciosa be liable for any other or further Losses of any kind whatsoever including, but not limited to, lost profits, special, incidental and consequential damages, regardless of the theory on which a claim therefore may be made or based. Fuses, breakers, lamps and other consumables are excluded from any warranty whatsoever. (f) As a condition to Preciosa’s providing any on-site warranty or service work, Buyer shall provide ready and easy access to the goods to be serviced, whether the goods are located at Buyer’s site or the site of a third party. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THESE TERMS AND CONDITIONS, PRECIOSA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLED, INCLUDING ANY WARRANTIES OF DESIGN, MERCHANTABILITY, OR FITNESS FOR PURPOSE. (g) Preciosa shall have no warranty liability for any defects or damage caused by or resulting from (a) fire, water, humidity or condensation; (b) exposure to temperatures outside the range of –20°C to +45°C; (c) unauthorized interventions or modifications; (d) installation or use contrary to Preciosa’s instructions or applicable technical standards; or (e) voltage fluctuations, power failures, improper or unstable energy sources. If installation of the goods by Preciosa is part of the Order but is not performed or is delayed due to reasons attributable to Buyer, the warranty period shall commence on the date of delivery of the goods to Buyer, regardless of the date of actual installation.
10. DEFAULT AND WAIVER – If Buyer defaults with respect to any payment or performance obligation whatsoever in respect of an Order or any other agreement with Preciosa, Preciosa may, in addition and without prejudice to its other lawful rights and remedies (i) refuse further shipments of goods until each default has been corrected to Preciosa’s satisfaction, or (ii) terminate the Order or any other pending Order. No course of conduct, nor any delay of Preciosa in exercising any rights hereunder, nor Preciosa’s acceptance of a payment from Buyer with knowledge of an existing default or breach, shall waive any rights of Preciosa or be deemed a modification of this
11. GOVERNING LAW – Each Order and these terms and conditions shall be construed to be between merchants and governed by the laws of the State of New York, United States of The exclusive venue for the resolution of all disputes shall be the state and federal courts located in the County of Erie, State of New York, regardless of where any Order was placed or filled, the place of delivery of the goods or where any other act or performance occurred, and Buyer consents to the personal jurisdiction of such courts.
12. MODIFICATION – These terms and conditions, including any attached or future schedules accepted by Preciosa constitutes the entire agreement between Buyer and Preciosa with respect to an Order, and may be modified only in writing, signed by the party or parties to be charged.
13. PERMITS – Buyer will obtain, at its own expense, any and all necessary licenses, permits and inspections necessary to permit the lawful purchase, installation and use of goods.
14. INDEMNIFICATION – Buyer shall defend, indemnify, and hold Preciosa harmless from each and every Loss incurred by Preciosa in connection with any claim, action or proceeding commenced against Preciosa or to which Preciosa is made a party, relating in any manner to Buyer’s or Buyer’s customer’s purchase, installation, use, or ownership of any goods, except only to the extent of Preciosa’s acts or
15. RETAINED SECURITY INTEREST – Until such time as the entire purchase price of the goods has been paid, together with all related Impositions, Buyer grants to Preciosa a purchase money lien and security interest in the goods to secure the payment of all amounts owed to Preciosa pursuant to the Order for such goods. The rights and remedies of Preciosa as a secured party with respect to the goods, shall be governed by the Uniform Commercial Code, or applicable equivalent statute(s) of the locale in which the goods are located. Buyer authorizes Preciosa to execute and record on behalf of Buyer such financing statements and other instruments as Preciosa may deem necessary to perfect or protect its security interest in the
16. INSURANCE – Until Preciosa has been paid in full for goods, Buyer shall maintain all risk insurance on the goods, protecting against any loss or damage thereto for the full replacement value of such goods, and Preciosa shall be named as loss payee thereof with respect to the goods. Buyer shall provide Preciosa proof of such insurance upon
17. LIMITATION OF LIABILITY – Notwithstanding anything in an Order or these terms and conditions to the contrary, (i) in no event shall the aggregate liability of Preciosa to Buyer for any one or more Losses incurred by Buyer related to goods, exceed the amount actually paid by Buyer to Preciosa for such goods, and (ii) in no event shall Preciosa be liable for any lost profits, or for any special, indirect or consequential
18. SITE CONDITIONS – Buyer assumes all risks associated with changes in site and/or field conditions, such as, by way of example only, changes in dimensions or site or facility
19. INTELLECTUAL PROPERTY RIGHTS – Preciosa or one of its affiliated companies is the owner of registered, verbal and combined trademarks of Preciosa (“Marks”) in the United States and in other countries. If Buyer is a distributor or other reseller of the goods, with the written consent of Preciosa, Buyer may use Marks on a display cabinet or another exhibition place where Preciosa goods are placed for sale with Preciosa trademarks and otherwise use Preciosa marks in connection with the marketing of Preciosa goods. Any other use of Marks, logos and other intellectual property rights owned by Preciosa, especially in connection with goods, services, trademarks, logos and other intellectual property rights of Buyer is prohibited. The use of any intellectual property rights of Preciosa in publications, regardless of the type of media, is subject to the prior consent of Preciosa. Without written permission, such publication is prohibited. Any technical documentation, plans, drawings, Shop Drawing models, brochures, catalogues, etc. provided to Buyer remains the intellectual property of Preciosa. They are protected by copyright and against unfair competition. By taking these materials, Buyer undertakes to protect the confidentiality of the information and not to use these materials for purposes other than those for which they were provided. Buyer may not make any changes to the Preciosa goods, promotional materials, or packaging. Buyer undertakes to obligate its customers who are not the end customers to comply with these rules regarding treatment of intellectual property of Preciosa. Preciosa shall not be liable for an infringement of intellectual property rights of third parties, if it occurs in connection with goods manufactured or sold on the basis of drawings, Shop Drawings, designs, models, specifications or other production documents provided to Preciosa by Buyer (hereinafter referred to as “Buyer’s Design”). Buyer represents that it is the sole owner of all design rights relating to Buyer’s Design. Buyer shall defend, indemnify and hold Preciosa harmless against any and all third-party claims based on or related to intellectual property rights, or otherwise related to the manufacture or sale of the goods according to Buyer’s Design. In the event of a third-party submitting a claim against Preciosa based on the alleged infringement of intellectual property rights in connection with goods being supplied by Preciosa according to Buyer’s Design, Buyer shall, upon Preciosa’s command, assume all responsibility for the resolution of such claim. Preciosa shall be entitled, after delivery of the goods to Buyer or Buyer’s final customer, to photograph and record the goods and use such photographs and recordings solely for Preciosa’s marketing and promotional purposes, provided that no confidential information of Buyer or its customer is disclosed.
20. CONFIDENTIAL INFORMATION – Technical information contained in plans, drawings, specifications, photographs and other documents disclosed or furnished by Preciosa constitutes confidential and proprietary property of Preciosa. Buyer, in the absence of express prior written permission of Preciosa, shall hold all such confidential and proprietary information in confidence and may not sell or dispose of any portion thereof or use the same for any other purpose whatsoever.
21. DATA PRIVACY – Buyer consents to the collection, use, and disclosure of its business contact information by Preciosa for the purposes of fulfilling this Agreement, processing payments, and for other business purposes, including marketing communications. Preciosa shall manage such information in accordance with applicable privacy and data protection laws. 
22. SPECIAL CONDITIONS FOR SUPPLIES OF CUSTOM GOODS – “Custom Goods” are goods made especially for Buyer by Preciosa on the basis of a Shop Drawing (hereinafter as “Shop Drawing”) prepared by Preciosa based on Buyer's general design requirements for a specific space, such as, but not limited to a hotel, resort, palace, residence, or villa. Custom Goods will be manufactured in compliance with such Shop Drawing. Buyer shall inspect the Shop Drawing no later than 14 days after the delivery of the Shop Drawing to Buyer and either identify specific aspects of the Shop Drawing that need correction or or approve the Shop Drawing in writing to Preciosa. The failure of Buyer to do either (i) or (ii) will be deemed to constitute Buyer’s approval of the Shop Drawing. Any Shop Drawing approved by a person purporting to act as Buyer's representative (including by way of example only, Buyer's architect), is a Shop Drawing approved by Buyer. Any changes to an approved Shop Drawing requested by Buyer will be subject to additional charges. . The production period of a Custom Good begins with the approval of the Shop Drawing by Buyer. Buyer's delay in approving the Shop Drawing extends the total delivery period for the duration of the delay. With respect to any Custom Goods that need installation are concerned, Buyer must follow Preciosa’s installation instructions. If Preciosa has agreed to install the Custom Good as part of the contract, Buyer must to:

(1) deliver to Preciosa the information on the load capacity (referencing tonnage) of the installation site and information on the electrical network at the installation site. At Preciosa’s request, Buyer shall photograph the installation site, deliver the documentation of fastening and securing elements for the installation of the goods (hereinafter as “Fixings”) and deliver schematics of the installation site with the dimensions and obstacles, all no later than 14 days after the delivery of the request;

(2) inform Preciosa of its representative for arrangements regarding the installation of goods, including his/her e-mail and telephone, and ensure the readily representative is available during the installation. Such designated representative shall be authorized to act on behalf of Buyer and legally bind Buyer regarding all matters in respect of the installation of the goods, and any changes to the Custom Goods that may be needed in connection with their installation;

(3) prepare the installation site for Preciosa so that it is in a condition that is suitable for installation, i.e. clean, without dust or any other impurities, and with sufficient space for the erection of such scaffolding. Buyer shall prevent any person not approved by Preciosa from accessing the installation site. Preciosa shall not be liable for any damage to the Custom Goods, any other property or for any personal injury arising out of or related to the presence of unauthorized persons at the installation site;

(4) assure that the work of other person and/or contractors at, near or about the installation site does not interfere with Preciosa’s installation work.  If a delay of installation occurs due to any such other work, the term of performance shall be prolonged by the number of days corresponding with the number of days of such delay without entitlement to contractual penalties. Moreover, Buyer shall pay Preciosa extra costs relating to the extra time incurred by Preciosa’s or third person installers.  Buyer shall confirm readiness of the site one week before the installation date at the latest;

(5) manufacture and/or otherwise provide Fixings appropriate for use to install the goods at the installation site;

(6) connect the goods to the electricity network by a person appropriately licensed and skilled to do so;

(7) ensure Preciosa’s installer’s access to the site;

(8) pay for any extra work relating to any additional modifications of the goods above the framework of the approved documentation, e.g., extension or shortening of suspension parts of such goods, minor modifications of decorative parts, changes of electric parts of the goods, etc.; and

(9) get all local permits for Preciosa’s or third-party installers that will authorize them to access the site.

            Preciosa does not supply Fixings and is not responsible for the properties of Fixings, unless expressly agreed in the contract. The goods manufactured with a use of adhesive bonding (hereinafter as “Glued Joint”) require regular checks by Buyer. The lifetime of glued joints  is 20 years under the condition that Buyer complies with all the obligations stated in these General Terms & Conditions of Sale and norm DIN 2304 Adhesive bonding technology dated March 2016 (hereinafter as “DIN 2304”). Preciosa is only liable for the defects as the manufacturer of the glue used for the glued joint. The use of a glued joint is indicated in the Shop Drawing and is marked with symbols of safety class Si, Sz or S3 according to DIN 2304. Si is a glued joint without mechanical bonding and indicates the high risk and high safety requirements required of the Buyer. Sz is a glued joint with mechanical bonding and indicates a medium risk and medium safety requirements required of the Buyer. S3 is a Glued Joint with or without mechanical bonding and indicates low risk and low safety requirements required of the Buyer. The glued joints for each safety class are specified in DIN 2304. The goods manufactured with the use of a glued joint cannot be brought into contact with unsuitable chemicals, a temperature outside the range of -20 OC to 45 OC, or be exposed to UV exposure. By approving a Shop Drawing containing the indication of a glued joint, Buyer is deemed aware of the glued joints' risks and agrees that it accepts such risks. A Buyer who orders goods with an Si glue joint is obliged to carry out regular inspections on the glued joint strength at Buyer’s expense every 3 years from the receipt of the goods. Buyer is required to carry out the inspection only by a person having appropriate qualifications to do so (for glued joints (EAB, EAS or EAE)) and providing a valid certificate (DVT) or diploma (EWF). Buyer shall maintain complete and accurate records of each inspection, identify the person conducting the inspection and make a photocopy of the certificate or diploma of such person. At Preciosa’s request Buyer shall make at least 2 photographs of the glued joint and send them to Preciosa. Photographs must provide clear and comprehensive views of the affected glue joint(s).