- LightGuard Systems' Proprietary Status
LGS is the owner and supplier of a pedestrian crosswalk warning system ("System") protected by U.S. Patent No. 6,384,742. The System is designed for alerting motorists that they are approaching an occupied crosswalk. The System is also referred to as the "LightGuard Systems®", "Smart Crosswalk" ™ pending, and the "Pedestrian Crosswalk Warning System". The System consists of flashing light emitting diodes (LED) lights and activating equipment. The System is designed for installation at crosswalks and other roadway crossings.
- Approved Uniform Traffic Control Device
The System has been approved as an In-Roadway Warning Light (IRWL's) device in the millennium edition of the Federal MUTCD manual Sec.4L).
- Written Modification of Terms or Change Orders
This agreement may not be modified in any manner without the prior written consent of LGS. Notwithstanding delivery of the items identified herein, no terms or conditions in oral or written communications from BUYER (including the BUYER'S Purchase Order or other forms) shall be binding on LGS unless specifically accepted in writing and signed by LGS.
- Price Changes
All prices are net of any applicable taxes and are subject to change without notice.
- Taxes
Applicable taxes will be added to the purchase of the System unless BUYER provides LGS with, at the time of order placement, tax exemption certificates acceptable to LGS for this transaction from the appropriate taxing authorities exempting BUYER from added tax.
- Warranty
LGS warrants to BUYER for a period of Twenty four (24) months from the date of shipment to BUYER, pursuant to BUYER'S order, that the System shipped and furnished conforms to final LGS specifications and is free from defects in workmanship by LGS. BUYER shall provide supervision of installation in strict conformance with LGS recommended guidelines then in effect by LGS from date of delivery and BUYER shall be solely liable to third parties for the condition of the System as installed. LGS is not, and shall not be, responsible for express or implied warranties, or other remedies which differ from those stated herein. BUYER agrees to save and hold LGS harmless from any, and all, liability, loss, cost, and expense, including attorney's fees arising out of, or in connection with, any BUYER offered warranties.
THEREFORE, EXCEPT TO THE EXTENT OF THE WARRANTY STATED HEREIN, LGS DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL LGS BE LIABLE TO BUYER IN WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE FOR ANY DAMAGES, WHETHER INCIDENTAL OR CONSEQUENTIAL, WHICH ARE ALLEGED TO BE CAUSED BY ONE OR MORE OF LGS'S PRODUCTS. BUYER'S SOLE AND EXCLUSIVE REMEDY AGAINST LGS FOR BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL BE FOR REPAIR OR REPLACEMENT OF THE SUBJECT PRODUCT (EXCLUDING INSTALLATION AND REMOVAL CHARGES, WHICH SHALL BE BUYER'S RESPONSIBILITY) OR LGS MAY REFUND THE PURCHASE PRICE AT THE SOLE OPTION OF LGS WHICH SUCH EXCLUSIVE REMEDY SHALL EXPIRE TWO YEARS FROM THE DATE OF SHIPMENT BY LGS OF THE GOODS.
- Repair and Replace
All sales are final. In some cases where returns may be permitted at the sole discretion of LGS, after receipt by LGS of written notice from BUYER of a defect in a component, the responsibility of LGS is limited to replacement or repair at the place designated by LGS of any component or components which have been returned to LGS by BUYER, and which LGS determines to be defective, or which do not conform to the system shipped, provided that such component or components are returned by BUYER within ninety (90) days after notice of such defect is received by LGS. Components replaced or repaired within the warranty period shall carry the unexpired portion of the original warranty from the date of receipt of the report of the defect. Warranty services will be provided during normal LGS business hours. BUYER agrees to pay LGS for services required to be performed outside normal business hours, or for additional costs incurred by LGS, in order to comply with local labor contracts. All components returned by BUYER for repair or replacement must be sent freight prepaid to the address designated by LGS and will be returned to BUYER freight prepaid. BUYER must obtain a Returned Materials Authorization (RMA), signed by LGS, prior to returning any part(s).
Warranty is NOT valid unless BUYER complies with conditions set forth in this paragraph. LGS is not liable for any damage done by unauthorized repair, replaced components, from any misapplications of the component, or for damage due to shipping, accidents, abuse, negligence, or acts of God. In no event shall LGS be liable for loss, damage or expense directly or indirectly arising from the use of the System, or from any other cause, except as expressly stated in this warranty.
- Special Damages
LGS is not liable for, and BUYER expressly waives any right of action it has or may have against LGS for, any consequential or special damages arising out of any breach of warranty express or implied. LGS will not be liable for payment of any labor subcontracted or performed by BUYER for preparation of System under warranty for return to LGS or for work for field repair or replacement. LGS shall not honor any invoice from any source for either labor performed or subcontracted by BUYER.
- Condition of Warranty
Any obligation of LGS under its warranty policy is expressly conditioned upon the timely receipt of all payments from BUYER in strict compliance with payment terms. Time is expressly made the essence of this contract and specifically with to respect to payment obligations of BUYER. Failure of BUYER to timely pay for the System suspends the warranty obligations of LGS. The expiration date of the warranty shall not be extended upon payment of any overdue amount. BUYER shall not withhold payment of invoices pending settlement of claims. This warranty, and any condition to this warranty, may be modified only in writing and signed by an authorized representative of LGS and shall extend only to BUYER.
- Accessories and Buy Out Items
Any accessories, and "buy out items", which are defined as components to System (e.g. batteries) and supplied by LGS but manufactured by others, carries only any warranty such manufacturer thereof has made to LGS and which by its terms specifically extends to BUYER.
- Indemnity
BUYER agrees to save and hold LGS harmless of and from any and all, liability for the System, including attorney's fees and costs of defense, after delivery to BUYER by LGS, installation by BUYER, and use by City, or other entity, as installed.
- Jurisdiction and Venue
Any questions claims, disputes or litigation, arising from or relating to BUYER’S Purchase Order shall be held in Sonoma County and
governed by the laws of California without regard to the principles of conflicts of law. Any and all disputes arising between the parties shall be resolved in the following order:
- By good faith, negotiations between the representatives of LGS and BUYER
who have authority to fully and finally resolve the dispute
- If necessary,
by non-binding arbitration in Sonoma County, California. The arbitration will
comply with, and be governed by the provisions of the California Arbitration
Act, sections 1280 through1294.2, of the California code of Civil Procedure;
- The parties will each appoint one person to select a third to select a
third impartial arbitrator to hear and decided the dispute. The cost of
arbitration will be borne in proportion the arbitrator shall determine. The prevailing party in any proceeding
shall be entitled to recover attorney’s fees and cost therein incurred.
- Validity
If any provision of this Agreement shall be held to be invalid, or unenforceable, the same shall not affect in any respect whatsoever the validity or enforceability of the remainder of this Agreement.
- Credit Terms
Upon approved credit the following payment terms apply: standard terms of net thirty(30) days from date of invoice. The postmark date on the invoice will determine the allowable cash discount, or one percent (1%) discount off invoiced price, if invoice is paid in fifteen (15) days. Past due will be determined after thirty (30) days. A one and one-half per cent (1.5%) per month interest charge, or the highest rate allowed by applicable law whichever is lower, will apply to all past due accounts on outstanding balance thereafter. The BUYER will be liable for all legal fees incurred by the seller in the event legal action becomes necessary to collect past due accounts.
- Freight
All prices are F.O.B. Santa Rosa, CA Routing and means of transportation will be “Best Way” (transportation carrier may be arranged by LGS)
- Minimum Order
The minimum acceptable order is twenty-five hundred dollars ($2500.00) list price, except for replacement parts at one hundred fifty dollars ($150.00).
- Quotations
All quotations, bids, contracts, and orders, are subject to a final written approval or acceptance and acknowledgement by LGS. Quotations will be firm for thirty (30) days from date of submission by LGS.
- Cancellation Charges
All acknowledged orders are subject to a cancellation charge of up to the price of the goods.
- Estimated Delivery Dates
Delivery: Ten - twelve (10 -12) weeks ARO (after receipt of written order) however, LGS shall not be liable in any respect for failure or delay in the fulfillment, or performance, of this contract if hindered or prevented, directly or indirectly, by war; conditions of wars, acts of enemies; national emergency; sabotage, revolution or other disorders; inadequate transportation facilities; inability to secure raw materials or supplies, fuel, or power; fire, flood, windstorm, earthquakes or other acts of God; strikes, lockouts, or other labor disputes; orders or acts of any government or governmental agency or authority; interference by Civil or military authority; or any cause of like or different kind beyond the reasonable control of LGS.
- Workmanship
All work by LGS to be completed in a workmanlike manner according to standard industry practices. Any alteration or deviation from the System as described herein is strictly prohibited unless specifically authorized by LGS in writing in advance thereof. Such authorized alteration or deviation will be executed only upon prior written orders and will become an extra charge over and above this formal quotation. LGS shall not be responsible for any delays due to alterations, deviations, strikes, acts of God, or other circumstances beyond the control of LGS. LGS reserves the right to substitute components in the System it deems comparable due to unavailability or unexpected delays in receipt of components from LGS vendors.
Please contact LightGuard Systems for questions regarding this document.
