Pinnacle Technology Group, Inc.
Terms and Conditions of Sale
- Exclusive Terms/Entire Agreement. These Terms and Conditions of Sale (the “Terms and Conditions”) exclusively govern the sale of any products (the “Products”) furnished by Pinnacle Technology Group, Inc.(“Pinnacle”) to any person or entity (“Customer”) that accepts a quotation from Pinnacle for the purchase of Products (“Quotation”) and issues one or more purchase orders (the “Purchase Orders”) to Pinnacle for the purchase of Products, whether or not Pinnacle issues an acknowledgement or acceptance of any Purchase Order. All Purchase Orders are governed by these Terms and Conditions and, together with the Quotation and these Terms and Conditions, constitute an “Agreement.” To the extent that any Purchase Order is inconsistent with these Terms and Conditions, these Terms and Conditions shall control. Unless Pinnacle has explicitly accepted additional or differing terms in writing, Pinnacle expressly rejects any terms and conditions of Customer that are in addition to or conflict with Pinnacle’s Quotation or these Terms and Conditions; and any such additional or conflicting terms or conditions shall be of no force or effect with respect to the matters covered by the Agreement and will not be incorporated into the Agreement (regardless of whether any Products are provided).
- Price and Payment.
2.1 The price of the Products is set forth in the Quotation that is part of the Agreement. All payments are due net 30 days.
2.2 A service charge of one and one-half percent per month will be imposed on all past due amounts. Customer agrees to pay all expenses of collection, including reasonable attorneys’ fees, if amounts owing by Customer are collected through an attorney.
2.3 In addition to any other rights that Pinnacle may have under the Agreement or applicable law, Pinnacle may at any time alter or suspend credit or refuse to ship Products or cancel unfilled orders when, in Pinnacle’s reasonable opinion, the financial condition of Customer or the status of Customer’s account warrants such action.
2.4 The prices for the Products are firm except:
2.4.1 if any applicable index of metals, commodities, or other raw materials required for the manufacture of Customer’s Products reflects a significant price increase, Pinnacle may impose a commensurate surcharge for the price increase in those metals, commodities, or other raw materials until the index for those metals, commodities, or other raw materials decreases by at least the same amount as the increase;
2.4.2 if the Wholesale Price Index for the United States as reported by Moody’s Analytics increases more than ___% in any month, Pinnacle may increase the prices for the Products commensurate with the WPI increase;
2.4 3 if after the price for the Products is quoted to Customer, (i) any governmental tariff, duty, or other tax is imposed on any components or materials required for the manufacture of Customer’s Products, or (ii) if the incoming freight charges for any components or materials required for the manufacture of Customer’s Products are significantly increased, Pinnacle may adjust the prices for the Products accordingly; and
2.4.4 if the price of the Products is increased pursuant to Section 12 below.
- Force Majeure. Pinnacle shall not be liable for any delay in or impairment of performance resulting in whole or in part from fires, floods, earthquakes, catastrophes or other acts of God; strikes, lockouts or labor disruptions; wars, riots, civil commotion, vandalism, terrorist acts, or embargo delays; government allocations or priorities; shortages, delays or failures of transportation equipment; shortages of fuel, labor or materials, including delays in delivery of components, materials, or parts by third-party vendors; severe weather conditions; any applicable governmental or judicial law, regulation, order or decree, or any other circumstance or cause beyond the control of Pinnacle in the reasonable conduct of its business. In any such event, Pinnacle’s performance obligation shall be suspended until such time as it can reasonably resume work. In addition, Pinnacle is authorized to allocate among its customers in any manner that Pinnacle determines is reasonable any Products that it is able to manufacture despite the force majeure situation.
- Delivery and Acceptance.
4.1 Delivery terms are Ex Works Pinnacle’s facility (loading dock) (Incoterms 2020).
4.2 No Purchase Order will be accepted by Pinnacle if Customer’s delivery schedule exceeds 12 months unless such delivery period is included in the Quotation. The delivery period includes receipt of Customer technical documentation acceptable to Pinnacle. Customer is responsible for accepting delivery of all Products by the originally specified delivery date(s). Pinnacle will consider Customer requests for delivery date modifications on a case by case basis. In no instance will delivery date changes be accepted for turnkey assemblies within 30 days of the originally specified delivery date(s). Pinnacle may accept up to one delivery date change of no more than 90 days later than the originally specified delivery date(s) if in Pinnacle’s estimation material and labor can be rescheduled with minimum impact. Customer is responsible for all costs associated with such delivery date changes. Delivery date changes will not be deemed valid until Customer receives written confirmation from an authorized officer of Pinnacle.
4.3 Customer shall inspect and accept or reject the Products immediately upon receipt and shall have 10 working days following delivery to give written notice to Pinnacle of any claim that the Products are of incorrect quantity, do not conform to the agreed upon terms, or contain material defects. If Customer fails to give such notice, the Products shall be deemed to conform to the Agreement and Customer shall be deemed to have accepted the Products. Customer expressly waives any rights Customer may have otherwise had after the expiration of such 10 day period to revoke acceptance or claim breach of warranty with respect to any material defects that could have been discovered with reasonable diligence upon such inspection.
5.1 The Products are covered by the following exclusive limited Warranty: Pinnacle warrants the Products to (i) be free from defects in material and workmanship for a period of twelve months from the date of shipment, and (ii) conform to applicable specifications, drawings, blueprints, or samples, to the extent that Pinnacle has accepted and approved such specifications, drawings, blueprints, or samples.
5.2 Customer’s sole remedy for any defect or other breach of this Warranty is, at Pinnacle’s option, repair or replacement of the defective Products, or credit of the purchase price to Customer’s account.
5.3 If any Product is claimed to be defective in material or workmanship or not to conform to specifications, Customer must notify Pinnacle of the alleged defect promptly following discovery of the defect . Upon receipt of the notice, Pinnacle will issue a Return Material Authorization (RMA) with shipping instructions for return to Pinnacle (transportation charges prepaid by Customer). Pinnacle will evaluate the Product and determine if a defect exists and if so whether it is covered by this Warranty. Return shipment of repaired or replaced Products to Customer will be at Pinnacle’s expense.
5.4 The following specific exclusions apply to this Warranty: (i) normal maintenance; (ii) any Product that has been damaged by accident, fire, flood, or any act of God; (iii) any Product that has been abused or misused or has been improperly installed; (iv) any Product that has been repaired or altered by anyone other than Pinnacle; and (v) Products or parts furnished by Customer or acquired from non-franchised distributors (brokers) at Customer’s request and/or to Customer’s specifications. In addition, this Warranty does not extend to the premature failure of electronic and/or counterfeit components or to other equipment and parts manufactured by others, except to the extent of the original manufacturer’s warranty to Pinnacle, which Pinnacle will pass through to Customer.
5.5 This Warranty covers the functionality of the Product if, and only if, in-circuit testing or fully functional product testing and certification services are provided as an integral part of the Purchase Order. Unless such testing services are provided, Pinnacle only warrants conformance to the manufacturing practices outlined in the IPC-A-610D, Class 2 workmanship standards or other applicable workmanship standards, as specified in the Quotation.
5.6 THIS WARRANTY IS THE ONLY WARRANTY APPLICABLE TO THE PRODUCTS, AND IS EXPRESSLY IN LIEU OF ANY WARRANTIES OR CONDITIONS OTHERWISE IMPLIED BY LAW, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE REMEDIES STATED HEREIN SHALL BE THE ONLY WARRANTY REMEDIES AVAILABLE TO CUSTOMER. PINNACLE DOES NOT ASSUME ANY OTHER OBLIGATION OR RESPONSIBILITY WITH RESPECT TO THE CONDITION OF THE PRODUCTS AND HAS NOT AUTHORIZED ANY PERSON TO ASSUME ANY OTHER OBLIGATION OR LIABILITY ON ITS BEHALF.
- Limitation of Liability. IN NO EVENT SHALL PINNACLE OR ITS COMPONENT SUPPLIERS BE LIABLE FOR ANY DELAY, WORK STOPPAGE, LOSS OF USE OF PRODUCTS, LOSS OF TIME, INCONVENIENCE, LOST PROFITS, OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, WHETHER RESULTING FROM OR ATTRIBUTABLE TO OR BASED ON DEFECTS IN THE PRODUCTS, NEGLIGENCE (INCLUDING GROSS NEGLIGENCE) OR OTHER TORT, WARRANTY, CONTRACT, INDEMNITY, BREACH OF ANY PROMISE TO REPAIR OR REPLACE THAT MAY BE CONTAINED HEREIN, STRICT LIABILITY OR OTHERWISE, OR FOR ANY DELAY OR LOSS OCCASIONED BY DELAY IN MAKING ANY REPAIRS FOR ANY REASON WHATSOEVER, OR FOR ANY AMOUNT IN EXCESS OF THE COST OF THE PRODUCTS GIVING RISE TO POTENTIAL LIABILITY.
- Technical Standards. In the absence of specifications from Customer to the contrary, the Products will be designed and manufactured in accordance with IPC A 610D Class 2 standards for PCA’s, or similar industry standards.
- Advice. Pinnacle’s provision of advice to Customer, or the absence of such advice, will not impose any liability on Pinnacle or grant to Customer any license to the use of any of Pinnacle’s patents, trademarks, trade names, or other intellectual property or trade secrets.
- Tolerance. All Products are subject to a tolerance of 5% plus or minus, in yield and quantity.
- Assignment. The Agreement, together with all rights, liabilities, and obligations arising under the Agreement, may be assigned by Pinnacle in whole or in part to any one or more affiliates of Pinnacle, without the necessity of prior notice to Customer.
- Packaging. Unless otherwise specified in the Quotation, standard packaging materials will be used to ship all Products. If custom packaging is required, Pinnacle can, at additional cost, offer package engineering services to design, develop, and implement a custom package design; provided that if the prices of any materials required for such custom packaging are significantly increased, the cost of the custom packaging will be adjusted accordingly.
- Product Revisions. All change orders in the specifications set out in the Agreement must be confirmed in writing by Customer and accepted in writing by Pinnacle. Any price variation resulting from such changes shall become effective immediately upon acceptance of such changes. All additional costs or delays that result from changes made by the Customer to shipping or production schedules are Customer’s responsibility.
- Excess Materials. For all turnkey Agreements in which Customer requests that Pinnacle purchase material on Customer’s behalf, Customer is liable for purchasing all excess material including all non-cancelable, non-returnable (NCNR) materials not used in the manufacturing of Customer’s Products, within 30 days of receipt of invoice for excess material from Pinnacle. If Pinnacle purchases production material from Customer, Customer accepts and is bound by Pinnacle’s supplier agreement. Customer acknowledges and agrees that in some cases Pinnacle will be required to purchase material in quantities greater than the minimums necessary to manufacture the Products as a result of the third-party vendor’s minimum purchase requirement or requirement to purchase in certain unit increments.
- Credit Approval. All sales of all Products are at all times subject to the approval of Pinnacle’s Credit Department and, if the financial responsibility of the Customer is unsatisfactory, or becomes impaired, or if Customer fails to make any payment in accordance with the terms of the contract, Pinnacle may defer or decline to make any shipments under the Agreement except upon receipt of security satisfactory to Pinnacle or cash payments in advance, or it may terminate the contract and invoice the buyer for excess materials and/or work in process.
- Tooling. Tools or equipment which Pinnacle acquires specifically and solely for use on Customer’s order, the cost of which is included in the price stated in the Agreement for the Products, shall (once fully amortized) become Customer’s property and remain in Pinnacle’s custody unless recalled by Customer; provided, however, that if no orders are received from Customer for Products to be made with such tooling for a 12 month period, Pinnacle may notify the Customer regarding disposition of the tooling. If a Quotation includes the cost of partial tooling, Pinnacle reserves the right to retain sole possession and control of such tools, which in most cases represent alterations or additions to Pinnacle’s equipment and therefore are not considered deliverable items. Customer acknowledges and agrees that from time to time tooling will require replacement, repair, or refurbishment, and that Customer will be fully responsible for all costs related to such replacement, repair, or refurbishment.
- Indemnification. Customer agrees to defend, protect, and save Pinnacle harmless from and against all claims, lawsuits at law or in equity, judgments, damages, and demands that relate in any way to (i) actual or alleged infringement of any patent or other intellectual property right arising from or connected with the manufacture or sale of any Product for Customer, and (ii) any alleged liability in tort, contract, or any other basis, and of every kind and character whatsoever, for personal injury or death, or any property loss or damage, relating to or connected with the manufacture or sale of any Product for Customer.
- Cancellation. This Agreement is subject to cancellation only if Pinnacle in its sole discretion agrees to such cancellation in writing. If Pinnacle accepts cancellation, it will cease processing Customer’s Products at the point that creates the least inconvenience to Pinnacle under the circumstances. Customer is responsible for all costs associated with cancellation, including without limitation vendor cancellation charges of undelivered raw materials, raw material received and not used, work-in-process (labor and/or material), finished product in distribution, shipping charges, standard profit, and overhead.
- Applicable Law. This Agreement has been entered into in the State of Michigan and all questions concerning the validity, interpretation or performance of any of its terms or provisions, or of any rights or obligations of the parties hereto, shall be governed by and resolved in accordance with the laws of the State of Michigan, without reference to its choice of law rules or to the laws of any other jurisdiction.
- Exclusive Jurisdiction. Customer agrees that any action at law or equity or other judicial proceeding for the enforcement of this Agreement or any provision hereof, or relating to any dispute, claim or controversy arising under, out of, in connection with or relating to this Agreement, or any course of conduct, course of dealing, statements (oral or written), or actions of Pinnacle or Customer relating to this Agreement, shall be instituted only in the U.S. District Court for the Eastern District of Michigan or in any State court in Monroe County, Michigan; provided that Pinnacle at its option may elect to bring an action at Customer’s principal place of business or in any jurisdiction in which the Products or other assets of Customer may be found. The parties irrevocably consent to process being served in any suit, action, or proceeding by mailing a copy thereof via registered or certified mail, postage prepaid, return receipt requested, to the address of the party specified in all business correspondence. To the extent they may effectively do so under applicable law, the parties irrevocably waive all claim of error by reason of such service and agree that such service (i) shall be deemed, in every respect, effective service of process upon it in any suit, action or proceeding and (ii) shall be taken and held to be valid personal service upon and personal delivery to such party.
- Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY LAW, PINNACLE AND CUSTOMER HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND WITH THE ADVICE OF COUNSEL WAIVE ANY RIGHTS THAT EITHER OF THEM MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY DISPUTE, CLAIM OR CONTROVERSY BASED ON THE AGREEMENT OR THE PARTS, OR RELATING TO, ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT OR THE PARTS, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (ORAL OR WRITTEN), OR ACTIONS OF PINNACLE OR CUSTOMER RELATING TO THIS AGREEMENT OR THE PARTS. THIS WAIVER WILL APPLY REGARDLESS OF HOW ANY CAUSE OF ACTION IS DENOMINATED AND REGARDLESS OF WHAT RELIEF IS SOUGHT. IF THIS WAIVER IS INEFFECTIVE AS TO ONE OR MORE CAUSES OF ACTION FOR ANY REASON, THIS WAIVER WILL REMAIN EFFECTIVE AS TO ALL OTHER CAUSES OF ACTION.
- Miscellaneous. If any provision of this Agreement is held to be unlawful or unenforceable, the remaining items will remain in full force and effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, but it shall not be assigned by Customer without the prior written consent of Pinnacle. Pinnacle shall have the right at all times to enforce the provisions of this Agreement in strict accordance with the terms hereof. Pinnacle’s failure to enforce any such provision or to exercise any right available to it upon the occurrence of any default shall not constitute a waiver of, or bar Pinnacle from enforcing or exercising, any such provision or right upon the subsequent occurrence of the same or any other default. All rights and remedies of Pinnacle are cumulative and concurrent, and the exercise of any right or remedy shall not be deemed a waiver or release of any other right or remedy. No modification of the Agreement shall be binding on Pinnacle unless it is in writing, is signed by an authorized representative of Pinnacle, and refers specifically to the Agreement and the portions that it is intended to modify. Unless otherwise specified herein, all notices, requests and other communications to any party shall be in writing (including electronic mail, telecopies, facsimile transmissions, and similar writings) and shall be given to such party at its address, telecopier or facsimile number provided to the other party. Each such notice, request or other communication shall be effective (a) if given by telecopier facsimile, when such telecommunication is transmitted and confirmation of receipt obtained, (b) if given by mail, five days after such communication is deposited in the mail with first class postage prepaid, properly addressed, or (c) if given by any other means, when delivered at the address specified in this section.