Terms of Sales and Security Agreement

  1. Purchase of Equipment. 
    (a) Unless agreed upon in writing to the contrary, this Agreement shall govern the sale, delivery and distribution of all lighting fixtures, lamps, parts and accessories thereto as well as other lighting equipment (“Equipment“) manufactured, sold or marketed by Hera (“Seller“) and purchased by the purchaser, as referenced on the reverse side hereof (“Purchaser“) from time to time. (b) All dealings between the parties shall be in writing and no order of Purchaser shall be binding on Seller until approved in writing by Seller. (c) Offers of Seller are subject to change and shall not be binding on Seller until such time as finally accepted in writing by both parties. (d) All references in sales brochures, technical data sheets and offers as to size, weight, price and other details of the Equipment are approximate only and shall not be binding on Seller unless expressly incorporated in the respective purchase contract. (e) Any purchase contract hereunder shall become effective upon the mailing of a written acceptance of Purchaser‘s order by Seller. (f) All acceptances by Seller are subject to prior credit approval and Seller may demand assurances of Purchaser‘s ability to pay by requesting such trade or banking references or such other information as deemed adequate by Seller. 
  2. Delivery.
    (a) Unless expressly agreed in writing to the contrary, the terms of delivery are F.O.B. Seller‘s Warehouse in Norcross, Georgia. Delivery times and delivery dates are only approximate unless expressly guaranteed by Seller in writing. (b) Purchaser bears the risk of loss or destruction of the Equipment upon and after notification from Seller that the Equipment is ready for pick-up at its F.O.B. destination. In case Purchaser requests a delay in delivery Purchaser assumes all risk of loss, damage and/or destruction of the Equipment from the date the Equipment is ready to be delivered. (c) If Seller is required to store the Equipment due to any delay caused by Purchaser, Purchaser shall reimburse Seller for reasonable storage charges (d) Seller reserves the right to make delivery in installments, unless otherwise expressly stipulated to the contrary in a written document signed by Seller. Delay in delivery of any installments shall not relieve Purchaser of its obligation to accept remaining deliveries.
  3. Force Majeure.
    Notwithstanding anything to the contrary, Seller shall not be liable and, in addition and hereto, shall have the right to postpone delivery in case of any delay or failure to perform hereunder when such failure or delay is, directly or indirectly, caused by, or in any manner arises from fire, floods, accidents, civil unrest, acts of God, war, governmental interference or embargoes, strikes, labor difficulties, shortage of labor, fuel, power, materials, or supplies, breakage of machinery or apparatus transportation delays, or any other cause or causes (whether or not similar in nature to any of those hereinbefore specified) beyond its control.
  4. Warranty and Limitation of Remedies. 
    (a) Except as otherwise provided, the Seller warrants, for a period of ninety (90) days from the date of shipment, that the Equipment supplied by it has been made of good material and express workmanship and conform to the catalogue description or other written specifications when properly installed and used. The foregoing warranties are exclusive, and in lieu of all other warranties, express or implied (whether written or oral), including but not limited to any implied warranty of merchantability or fitness for any particular purpose. Seller makes no warranty, express or implied, (whether written or oral), with respect to any (a) material not manufactured by Seller the use of which is suggested by Seller‘s general recommendations, application or installation procedures, or otherwise (b) Equipment sold by Seller to Purchaser for other than resole, and (c) display items sold by Seller to Purchaser (b) Seller shall, at its sole option, credit, repair or replace any Equipment warranted hereunder if Seller actually receives notice from Purchaser of the alleged defect within ninety (90) days from the date of shipment. Any claim not made within said periods shall conclusively be deemed waived by Purchaser. Seller‘s responsibility hereunder shall be conditioned upon examination of the Equipment by Seller, as requested by Seller, return of the Equipment to Seller and will not be accepted without its written consent. Returns of Equipment other than defective Equipment will be subject to a handling charge equal to thirty five percent (35%) of the price of such Equipment. Claims with respect to Equipment damaged during shipment shall be made directly with the respective carriers (c) Seller shall not be liable for any labor or other expenses incurred by Purchaser in the removal, repair or replacement of the Equipment or any component part claimed to be defective nor shall Seller be liable for any expenses incurred by Purchaser in order to remedy any defects in its Equipment. Seller shall not be liable for any consequential, special or contingent damages or expenses arising directly or indirectly from any defect in the Equipment sold hereunder, from the use thereof or from Purchaser‘s inability to make use thereof.
  5. Prices. 
    (a) All prices quoted by Seller shall be on a net basis, F.O.B. Seller‘s Warehouse in Norcross, Georgia. (b) Unless otherwise expressly agreed upon in writing, the price quoted on such price list does not incalude the cost of packaging materials, taxes, shipping or other incidental expenditures of Seller. Any request for modification of an order accepted by Seller shall entitle Seller to reasonable price adjustment.
  6. Payment. 
    (a) Unless otherwise expressly agreed upon in writing, payment shall be made within thirty (30) days of receipt of delivery. Any past-due amounts owed by Purchaser shall be subject to interest payments with interest in amount of 1 1/2 percent per month. (b) Purchaser shall not withhold or reduce payments on account of complaints, claims, or counterclaims not acknowledged and accepted by Seller. Payment shall be made if the Equipment is substantially in working operation and substantially fit for its intended use.
  7. Taxes. 
    Any applicable federal, state, local or other government tax or charge on the sale or shipment of the Equipment shall be added to the price and paid by Purchaser. Purchaser agrees to hold harmless Seller from all such taxes, including interest and penalties thereon, and any costs and expenses in connection therewith.
  8. Purchaser‘s Agreement to Defend. 
    If any Equipment (i) sold or supplied to Purchaser by Seller is not maintained and operated in accordance with recommended procedures or (ii) if any Equipment is sold or supplied to Purchaser by Seller according to Purchaser‘s specifications, requirements or instructions Purchaser agrees to defend, protect and save Seller harmless against all suits at law or in equity and from all costs and suit, legal fees and expenses, damages, claims and demands arising out of or awarded in connection with such sale or supplying.
  9. Notice of Accident or Malfunction. 
    Purchaser shall notify Seller promptly and in any event within thirty (30) days of any accident or malfunction involving Equipment which results in personal injury or damage to property and shall cooperate fully with Seller in investigating and determining the cause of such accident or malfunction. In the event that Purchaser fails to give such notice to Seller and to so cooperate, Purchaser agrees to protect, defend and save Seller harmless as provided herein.
  10. Default. 
    Purchaser shall be in Default hereunder: (i) if Purchaser fails to make any payment hereunder when due or breaches any other term, provision or condition contained herein, or any other agreement among the parties when said other agreement relates to the Equipment, and fails to remedy the same within fourteen (14) days of receiving written notice from the Seller; or (ii) shall become insolvent, shall suffer an order for relief against it under the Bankruptcy Code, as amended, or shall file any voluntary petition under the Bankruptcy Code as amended; or, (iii) if a receiver of trustee shall be appointed for any reason to administer any property of Purchaser.
  11. Security Interest. 
    a) Purchaser hereby grants to Seller a purchase money security interest in all Equipment not fully paid by and delivered to Purchaser in the cause of all dealings between the parties hereunder (hereinafter the “Collateral”) . (b) (i) Until Default Purchaser shall have the right to sell the Collateral only in the ordinary course of its business. Purchaser grants to Seller a security interest under the Uniform Commercial Code in the proceeds of any such sale, including, without limitation, any accounts, trade acceptances, notes and contract rights relating to it. (ii) Purchaser agrees to keep the Collateral and the proceeds from the sales separate and capable of identification, to make entries in its books showing that the property is held subject to the security interest of Seller, and to furnish Seller on demand a true and complete report of Purchaser‘s sales for any period of time stated by Seller. (iii) Purchaser agrees to maintain insurance on the Collateral with such companies, against such risks, and in such amounts that Seller finds acceptable. The proceeds of the policy or policies must be payable to Seller and Purchaser as their interests may appear. Upon Seller‘s request, Purchaser shall furnish Seller a copy of the policy or policies of such insurance. If Purchaser does not insure the Collateral or does not produce evidence of such insurance to Seller in a timely fashion, Seller may obtain insurance; Purchaser must then, without demand, reimburse Seller for all premiums advanced by Seller. (iv) Purchaser agrees not to remove any of the Collateral subject to this Agreement from purchaser‘s address as set forth above, without the written consent of Seller, except for purpose of sale in the ordinary course of business and subject to the provisions and conditions contained in this Agreement. (v) Purchaser agrees not to engage in any transaction that would in any way affect or impair the rights of Seller or its security interest under this Agreement. (c) Upon Default, or if it deems itself insecure, Seller shall have the right to (i) accelerate the maturity of any indebtedness herunder (including invoices, notes, trade acceptances, or other evidences of indebtedness); and (ii) take possession of the Collateral or such part thereof as remains in Purchaser‘s possession, and any and all proceeds of such Collateral as have been sold, wherever and in whatever form they may be, it being understood that for purposes of repossession, Seller or its representatives may enter any premises without legal process, and Purchaser waives and releases Seller of and from any and all claims in connection therewith or arising therefrom and Purchaser agrees, upon demand of Seller, to assemble the Collateral and make it available to Seller at a place reasonably convenient to both parties; and (iii) have and exercise all the rights as stipulated hereunder. (d) Purchaser hereby grants to Seller the irrevocable power of attorney, coupled with an interest, to execute and file in the name of Purchaser a financing statement or statements and any other documents necessary to perfect and evidence the security interest of Seller hereunder in the appropriate jurisdictions.
  12. Arbitration. 
    (a) Any controversy or claim arising out of or relating to this Agreement, the breach thereof or the purchase, delivery or use of the Equipment in general as well as all subsequent dealings between the parties relating to the subject matter thereof, shall be submitted to and resolved by the American Arbitration Association („AAA“), with such arbitration to be held in Atlanta, Georgia in accordance with the AAA‘s Commercial Arbitration Rules then in effect. Any award or decision rendered in such arbitration shall be final and binding on both Purchaser and Seller, and judgment may be entered thereon in any court of competent jurisdiction if necessary. (b) Notwithstanding sub-section (a) of this section to contrary, Seller may seek injunctive relief against Purchaser at any court of proper jurisdiction with respect to all injunctive or restraining procedures arising out of or relating to this agreement, the breach thereof or the purchase, delivery or use of the Equipment in general.
  13. Miscellaneous. 
    (a) The relationship of Purchaser to Seller under this Agreement shall at all times be that of a purchaser and a seller, and Purchaser is neither an employee nor an agent of Seller. Purchaser shall have no authority to assume or create obligations or make warranties or representations on Seller‘s behalf with respect to the Equipment or otherwise, and shall not take any action which has the effect of creating the appearance of its having such authority. (b) Purchaser may not assign this contract without the express prior written consent of Seller. (c) Except as otherwise expressly provided in a written document, signed by Seller and Purchaser, this document constitutes the entire agreement between Seller and Purchaser with respect to the subject matter herein contained and all prior agreements and communications between Seller and Purchaser, whether oral or written, are hereby merged into this Agreement. (d) No modification, limitation, waiver or discharge of this Agreement or of any of its terms shall bind Seller unless in writing and signed by a duly authorized employee of Seller. (e) All notices required hereunder shall be in writing and sent by first class mail to such addresses as stated on the reverse side hereof. (f) This Agreement shall be governed by, and construed, interpreted and enforced under the laws of Georgia. (g) In connection with any arbitration or litigation, including appellate proceedings, arising out of or pertaining to any of the contractual relationships between Seller and Purchaser or the breach thereof, as contemplated herein, all costs and expenses, including reasonable attorneys fees, shall be borne by the losing party or, as the case may be, shall be prorated to properly reflect any partial losing or prevailing of the parties to such litigation or arbitration. (h) In case any conditions of this Agreement should be or become unenforceable under applicable law, the remaining provisions, stipulations and conditions of this Agreement shall not be affected thereby.