General Terms and Conditions of
Pyramid North America Inc. (Pyramid)

11.01.2021

1. General

These General Terms and Conditions are the only terms which govern the sale of goods by Pyramid North America Inc. (“Pyramid”) to the buyer (“Buyer”) identified on the Sales Confirmation. “Sales Confirmation” means (a) Pyramid’s written sales confirmation, or (b) if the foregoing is not applicable, the parties’ names, addresses and quantity terms included in a purchase order issued to Pyramid. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the goods, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these General Terms and Conditions. The Buyer submits to the following General Terms and Conditions for the entire business relationship. For the entire business relationship Pyramid’s General Terms and Conditions shall apply exclusively. The Buyer’s general terms and conditions are not recognized and are hereby expressly rejected by Buyer and Pyramid.

2. Conclusion of Contract

2.1  Any offers by Pyramid are not binding unless they are expressly designated as binding. [They are particularly subject to Pyramid being supplied, to stocks and prior sale.][1]  The contract with Pyramid shall come about upon Pyramid’s Acceptance of an order. “Acceptance” means Pyramid’s delivery to Buyer of a Sales Confirmation or acceptance of the order by delivery of the goods; provided that Pyramid’s acceptance of any order is limited to the terms set forth in the Sales Confirmation, or, if no Sales Confirmation is provided, the parties’ names, addresses and quantity terms included in a purchase order issued to Pyramid. Written form (e-mail, fax and such like) shall be sufficient to meet the requirement of writing.

2.2  The Sales Confirmation and these General Terms and Conditions (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.

2.3  Any errors in telephonic or electronic communication shall be to the detriment of the party that used the communication device (e.g. the caller).

2.4   Pyramid reserves all rights, including all intellectual property rights, in and to all quotations, charts, drawings, technical descriptions and explanations. They may not be reproduced or brought to the attention of third parties without the prior written consent of Pyramid.

2.4  When registering[2], the Buyer is under a duty to state true particulars. If Buyer details change, in particular the Buyer’s name, address, e-mail address, telephone number or bank account details, the Buyer is under a duty to notify Pyramid of said change without undue delay. If the Buyer fails to provide such information, or if the Buyer gives false details from the outset, Pyramid reserves the right to rescind the contract or to claim damages. Rescission shall be declared in writing. Sending an e-mail shall also be sufficient to meet the requirement of writing. The Buyer must ensure that the e-mail address, which the Buyer has given, can be reached at the time when it is given, and that the possibility of receiving e-mail messages is not excluded because of message forwarding or because the e-mail account has been closed or is full.

3. Delivery

3.1  Pyramid may, but shall not be obligated to deliver any goods, before the documents, approvals and releases that are necessary in order to implement the contract have been provided and not before any agreed down payment by the Buyer has been received. Pyramid shall not be liable for any delays, loss or damage in transit.

3.2    Unless otherwise set forth in the Sales Confirmation, Pyramid shall deliver the goods to Buyer at Pyramid’s facility (the “Delivery Point”) using Pyramid’s standard methods for packaging such goods. Buyer shall be responsible for receipt of the goods at the Delivery Point. Pyramid shall make delivery in accordance with the terms on the face of the Sales Confirmation or, if not specified on the Sales Confirmation, EXW (Incoterms® 2020) the Delivery Point. [3]

3.3    If for any reason Buyer fails to accept delivery of any of the goods on the date fixed pursuant to Pyramid’s notice that the goods have been delivered at the Delivery Point, or if Pyramid is unable to deliver the goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the goods shall pass to Buyer; (ii) the goods shall be deemed to have been delivered; and (iii) Pyramid, at its option, may store the goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

3.4    Pyramid may, in its sole discretion, without liability or penalty, make partial shipments of goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. The quantity of any installment of goods as recorded by Pyramid on dispatch from Pyramid’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.

3.5    Any liability of Pyramid for non-delivery of the goods shall be limited to replacing the goods within a reasonable time or adjusting the invoice respecting such goods to reflect the actual quantity delivered. Buyer acknowledges and agrees that the remedies set forth in Clause 3.5 are Buyer’s exclusive remedies for the delivery of Nonconforming goods.

3.6    If Pyramid delivers to Buyer a quantity of goods of up to 5% more or less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the goods or any portion of them by reason of the surplus or shortfall and shall pay for such goods the price set forth in the Sales Confirmation adjusted pro rata.

3.7    Pyramid shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Pyramid including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage. Any unforeseen impediment to delivery (e.g. industrial action or Pyramid not supplied on time), for which Pyramid is not answerable or which is outside of Pyramid’s control, shall entitle Pyramid to extend the delivery period by the duration of the disruption but by a maximum of eight weeks.  In addition, Pyramid reserves the right to terminate an order, including as a result of an impediment outside of Pyramid’s control.

4. Transfer of Title and Risk of Loss

4.1  Title and risk of loss passes to Buyer upon delivery of the goods at the Delivery Point.[4]

4.2  As collateral security for the payment of the purchase price of the goods, Buyer hereby grants to Pyramid a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Illinois Uniform Commercial Code. The Buyer is authorized to re-sell the goods in the ordinary course of business.

4.3  Any further processing of delivered goods shall, as far as Pyramid is concerned, be performed as a refiner without any liabilities thereby accruing for Pyramid. In particular, this provision does not constitute a mandate.

4.3  Title and risk of loss for returns passes to Pyramid upon delivery of the goods at Pyramid’s facility.

5. Price

5.1  Except as otherwise agreed to in the Sales Confirmation[5], Pyramid shall charge Buyer for the goods the latest list price on the date of delivery, in US dollars. Pyramid reserves the right to change the price list from time to time without notice; provided that in the event the change takes place after receipt of Buyer’s order, Pyramid shall notify Buyer of such change. Within 5 days of receipt of such notice, Buyers shall have a right to cancel if the price for goods under the order exceeded by a rate of more than 20%.[6]

5.2  All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Pyramid’s income, revenues, gross receipts, personal or real property, or other assets

6. Payment

6.1  Unless otherwise agreed in the Sales Confirmation, Buyer shall pay all invoiced amounts due to Pyramid by the earlier of (a) thirty (30) days from the date of Pyramid’s invoice, or (b) delivery of the goods.
   
6.1.1  Buyer shall make all payments hereunder by cash, wire transfer or check and in US dollars.
6.1.2   A sum credited by check, a bank transfer or direct debit processes does not mean that payment has been made. Rather, payment is effected only once the credited amount has become final and irrevocable on Pyramid’s accounts.

6.2  Deductions are not permitted unless they have expressly been agreed with Pyramid. It is agreed that any trade practice to the contrary shall not apply. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Pyramid, whether relating to Pyramid’s breach, bankruptcy or otherwise.[7]

6.3  Payments received shall be appropriated first to all due claims in the order in which they arose. Buyer’s right to make unilateral stipulations regarding satisfaction, is excluded for the entire contractual relationship.

6.4  Buyer shall pay interest on all late payments at the lesser of the rate of 2%[8] per month or the highest rate permissible under applicable law, calculated daily and compounded monthly

6.5  Buyer shall reimburse Pyramid for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these General Terms and Conditions or at law (which Pyramid does not waive by the exercise of any rights hereunder), Pyramid shall be entitled to suspend the delivery of any goods if Buyer fails to pay any amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof.

6.6  In addition to any remedies that may be provided under these General Terms and Conditions, Pyramid may terminate any Order or this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these General Terms and Conditions, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. If any of the events listed on (a) – (c) above take place, all amounts now or thereafter payable by Buyer to Pyramid shall immediately become due and payable.

7. Inspection

7.1  Buyer shall inspect the goods upon receipt (the date of receipt, the “Inspection Date”). Buyer will be deemed to have accepted the goods unless it notifies Pyramid in writing of any Nonconforming Goods within five (5) days of the Inspection Date and furnishes such written evidence or other documentation as reasonably required by Pyramid. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in the Sales Confirmation; or (ii) the goods’ packaging incorrectly identifies its contents.

7.2  If Buyer timely notifies Pyramid of any Nonconforming Goods, Pyramid shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Pyramid’s facility as notified by Pyramid in writing. If Pyramid exercises its option to replace Nonconforming Goods, Pyramid shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replacement goods to the Delivery Point.

7.2  Buyer acknowledges and agrees that the remedies set forth in Section 7 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Clause 7.2, all sales of goods to Buyer are made on a one-way basis and Buyer has no right to return goods purchased under this Agreement to Pyramid.

8. Warranty for Defects

8.1  Pyramid warrants to Buyer that for a period of [twelve (12) months] from the date of shipment of the goods (“Warranty Period”), that such goods will conform to the specifications set forth in the Sales Confirmation, in all material respects.

8.2  EXCEPT FOR THE WARRANTIES SET FORTH IN CLAUSE 8.1 PYRAMID MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY, (b) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR (c) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.[9]

8.3  Pyramid shall not be liable for a breach of the warranties set forth in Clause 8.1 unless: (i) Buyer gives written notice of the defective goods, reasonably described, to Pyramid within three (3) business days of the time when Buyer discovers or ought to have discovered the defect; (ii) if applicable, Pyramid is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Clause 8.1 to examine such goods and Buyer (if requested to do so by Pyramid) returns such goods to Pyramid’s place of business at Pyramid’s cost for the examination to take place there; and (iii) Pyramid reasonably verifies Buyer’s claim that the goods are defective.

8.4  Pyramid shall not be liable for a breach of the warranty set forth in Clause 8.1 if: (i) Buyer makes any further use of such goods after giving such notice; (ii) the defect arises because Buyer failed to follow Pyramid’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the goods; or (iii) Buyer alters or repairs such goods without the prior written consent of Pyramid. Any repair shall be made at Pyramid’s place of business unless otherwise agreed to by the parties.

8.5  Subject to Clause 8.3 and Clause 8.4 above, with respect to any such goods during the Warranty Period, Pyramid shall, in its sole discretion, either: (i) repair or replace such goods (or the defective part) or (ii) credit or refund the price of such goods at the pro rata contract rate provided that, if Pyramid so requests, Buyer shall, at Pyramid’s expense, return such goods to Pyramid.

8.6  THE REMEDIES SET FORTH IN CLAUSE 8. SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND PYRAMID’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN CLAUSE 8.1.

8.7  Any goods intended to be returned must be properly packed. Damage in transit caused because of improper packaging shall be borne by the Buyer. Only the original packaging shall be deemed to be proper packaging.

9. Compliance with Laws

9.1  Buyer shall comply with all applicable laws, regulations and ordinances at Buyer’s sole cost and expense, including with respect to Buyer’s sale, import, export and disposal of goods. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the goods under this Agreement or any resale of the goods by Buyer. Buyer assumes all responsibility for shipments of goods requiring any government import clearance. Pyramid may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on goods.

9.2  If the Buyer passes goods delivered by Pyramid on to commercial third parties, it is the Buyer’s duty to oblige the commercial third party to comply with applicable law, including to properly dispose of the goods, at the third party’s cost when their use has finished . The Buyer is under a duty to document the proper passing on of the obligation. He must be able to prove the passing on of the obligation to Pyramid at any time.

10. Extent of Liability

10.1  IN NO EVENT SHALL PYRAMID BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT PYRAMID HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

10.2   IN NO EVENT SHALL PYRAMID’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO PYRAMID FOR THE GOODS SOLD HEREUNDER.

10.3   The limitation of liability set forth in Clause 10.2 shall not apply to (i) liability resulting from Pyramid’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Pyramid’s acts or omissions.

11. Exclusion of Liability

Pyramid shall not be liable for any non-delivery of goods (even if caused by Pyramid’s negligence) unless Buyer gives written notice to Pyramid of the non-delivery within two weeks following issue of the invoice or knowledge of the dispatch. Any failure to so notify Pyramid shall exclude Pyramid from liability.

12. Waiver

No waiver by Pyramid of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Pyramid. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

13. Confidentiality

All non-public, confidential or proprietary information of Pyramid, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, Buyer lists, pricing, discounts, or rebates, disclosed by Pyramid to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Pyramid in writing. Upon Pyramid’s request, Buyer shall promptly return all documents and other materials received from Pyramid. Pyramid shall be entitled to injunctive relief for any violation of this Section. This Section 13 does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

14. Assignment

Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Pyramid. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

15. Relationship of the Parties

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these General Terms and Conditions.

16. Governing Law

All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Illinois. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of goods shall not apply to this Agreement.

17. Submission to Jurisdiction; Waiver of Jury Trial

Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Illinois in each case located in the County of Worchester, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. EACH PARTY HEREBY WAIVES, IRREVOCABLY AND UNCONDITIONALLY, TRIAL BY JURY IN ANY ACTION BROUGHT ON, UNDER OR BY VIRTUE OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY OF THE DOCUMENTS EXECUTED IN CONNECTION HEREWITH, OR ANY CLAIMS, DEFENSES, RIGHTS OF SET-OFF OR OTHER ACTIONS PERTAINING HERETO OR TO ANY OF THE FOREGOING.

18. Notices

All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the notice has complied with the requirements of this Section.

19. Severability

If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

20. Survival

Provisions of these General Terms and Conditions which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction, and Survival.

21. Amendment and Modification

These General Terms and Conditions may only be amended or modified in a writing stating specifically that it amends these General Terms and Conditions and is signed by an authorized representative of each party.

Contact

Pyramid North America Inc.
13800 Coppermine Rd
Herndon, VA 20171

phone: 703 2345548
email: info@pyramid-america.com

[1] NTD: unclear what this language refers to or is intended to cover.

[2] NTD: please provide more details on this registration. Do you mean registration for warranty?

[3] NTD: please confirm.

[4] NTD: Under US law, we customarily transfer title upon delivery and reserve a lien over the goods. That way, the goods may be used (or sold) by Buyer while Seller still has certain rights. By transferring title upon payment in full, the Buyer should not have the right to re-sell. Please confirm if you would like title to transfer with delivery or payment.

[5] NTD: for non- merchants, we recommend the non-merchant terms be included in the Sales Confirmation and not here to avoid confusion and potential disputes with merchants.

[6] NTD: please confirm if this change language is acceptable.

[7] NTD: we recommend avoiding allowing Buyer to set off its counterclaims.

[8] NTD: we recommend using a set percentage for default rate. Please confirm if this is acceptable.

[9] NTD: do the goods contain third party products we may want to disclaim? If so, we can add additional language.