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Terms & Conditions
TERMS AND CONDITIONS OF SALE OF PRODUCTS BY Public Square Solutions (Seller) Any and all sales by the Seller of products ("Products") shall be subject to all the terms and conditions set forth below to the extent such terms and conditions are not incompatible with the provisions which may be contained in a written contract between Buyer and Seller (“the Parties”). No other General Terms and Conditions that may be referred to in Buyer's orders shall apply, even if these have not been rejected explicitly by Seller.
1. DELIVERY
1.1 Delivery dates set forth in any order acknowledgement are not binding and the Seller accepts no responsibility for any delay. Unless otherwise stipulated in the order acknowledgement, Products are sold ex-works. Upon written request from the Buyer transport and insurance will be arranged by the Seller at the Buyer's cost. Insurance cover is not deemed to be in place unless confirmed in writing by the Seller prior to title in Products passing to the Buyer. Products shall be delivered in the Seller's standard package with the Seller's standard labelling and markings. 1.2 The trade terms (such as ex-works) shall be interpreted according to the Incoterms 2010 as published by the International Chamber of Commerce, which are made a part hereof (the "Incoterms").
2. TITLE AND RISK
2.1 Title to the Products shall pass to the Buyer after the price thereof has been paid (cleared funds) in full to the Seller. Until the Buyer has obtained title to the Products, the Buyer shall ensure that the Products in their possession shall at all times be readily identifiable by the Seller as the Seller's property on the Buyer's premises. At the Seller’s request, the Buyer shall execute all documents and do all acts which may be necessary or desirable to enforce the retention of title by the Seller in Buyer’s country. For any period between the release of the products by Public Square Solutions to the Buyer and passing of title to the Buyer upon full payment of the price, the Buyer shall ensure the Products are covered by an all-risks insurance policy with Public Square Solutions as a named beneficiary. 2.2 Regardless of any retention of title by the Seller, the risk of damage to or loss of the Products sold, or any portion thereof shall in any event pass to the Buyer as from the moment title in the Products has passed to the Buyer.
3. PRICES
3.1 The Buyer shall pay to the Seller the agreed price for the Products, without any deduction or reduction whatsoever, except as may be agreed upon by the Seller in writing.
4. TAXES AND DUTIES
4.1 Any taxes, duties (including, but not limited to, any import or associated duties), excises and other charges, including without limitation VAT, now or henceforth levied in connection with the sale of the Products, shall be borne by the Buyer.
5. INVOICING PAYMENT
5.1 The Seller shall invoice the Buyer, and the Buyer shall pay the Seller, the price of the Products in US Dollars or other such currency as agreed between them on a sale-by-sale basis. 5.2 The Buyer shall pay the Seller's invoices on the terms agreed. 5.3 The Seller reserves the right to charge the Buyer interest in respect of the late payment of any sum due (before as well as after judgment) at such rate as is the higher of 4% per annum above the base rate from to time of Barclays Bank plc and such rate as is payable under the Late Payment of Commercial Debts (Interest) Acts 1998 (as amended from time to time) in each case from the due date therefor until payment. 5.4 In the event the Buyer becomes insolvent, or his credit becomes impaired in the reasonable opinion of the Seller, the Seller shall have the right to change with immediate effect the payment conditions then in effect to "cash in advance" or to request the Buyer to furnish adequate security with no formalities other than a notification by registered letter. If the Buyer fails to comply with the Seller's new payment terms or is unable to provide satisfactory security, the Seller may, at its option, suspend further deliveries or cancel all current orders for Products until full payment or until satisfactory security has been received by the Seller. Any claim by the Buyer shall not entitle the Buyer to delay or withhold payment of the overdue amounts.
6. FORCE MAJEURE
6.1 Neither Party is liable to the other for default or delay in the performance of any of its obligations hereunder due to Acts of God, fires, explosions, strikes, riots, civil or international wars, invasions, refusal by Governments to grant import or export licenses or the cancellation thereof, inability to obtain Products and/or raw materials and/or components because of Force Majeure at the producing location, or a contingency of a supplier of goods and services, etc. or any other similar or dissimilar cause beyond the reasonable control of either Party.
7. WARRANTY
7.1. Public Square Solutions hereby warrants that any products manufactured by Public Square Solutions’ manufacturers or any which are sold to the Buyer by Public Square Solutions ("Products") will be free from original defects in workmanship and materials until 60 months from the date of release of the Product by the Seller to the Purchaser, or any party nominated by the Purchaser (to include, but not limited to, the Purchaser’s nominated shipping agent), subject to the Limitations and Exclusions stated here in below and provided that such Products have been transported, stored, handled, installed, used and maintained in compliance with Public Square Solutions’ specifications/instructions and have not been subjected to misuse, neglect, abuse, accident, poor maintenance, acts of nature, uses in applications for which the equipment was not designed, use of replacement parts not supplied by Public Square Solutions or non-Public Square Solutions authorized alterations, modifications, and/or repairs. For the purposes of this Warranty clause 7, the term “Products” shall refer exclusively to electric/electronic components of the display surface and expressly excludes frames, casings or any other accessories supplied by Public Square Solutions. 7.2. Public Square Solutions’ sole obligation will be limited to repair or replace, at Public Square Solutions’ option, of any Products or any part thereof, which, upon Public Square Solutions’ receipt and examination proves to have been defective within the specified warranty period. In the event Public Square Solutions determines a product is not repairable or a replacement of the same Product is not available within the warranty period, Public Square Solutions manufacturers will replace it with a non-defective product of substantially similar specification. Any claim under this Warranty must be filed within the warranty period. Any products not manufactured by Public Square Solutions but sold by Public Square Solutions will be subject to the product manufacturer's pass-through warranties; to the extent such warranties are applicable. Any old parts of the Products (that are replaced with new parts under this Warranty) become the property of the manufacturer. All new parts replacing the old parts under this Warranty are considered part of the original Products and any warranty on the new parts shall expire concurrently with the warranty of the original purchase. To claim under the warranty, the Buyer must return at their expense and within the warranty period, the defective Product or any part thereof to Public Square Solutions’ manufacturing location or Public Square Solutions regional office, at Public Square Solutions’ option. 7.3. Public Square Solutions is not responsible for damage resulting from shipping, improper installation, modifications against original Public Square Solutions’ design, power surges, floods, lightning, earthquakes, storms or other natural disasters. 7.4. This Warranty does not cover products that have been exposed to toxic, or nuclear environment, or where operation temperature is beyond Public Square Solutions’ operating temperature specification or used in highly caustic or corrosive environments. Such environments may include, but are not limited to, seashore and marine applications and highly watered or fertilized environments. While many of Public Square Solutions’ products can be safety applied in these locations, their useful life, including the painted surfaces and those internal parts, may be reduced due to the conditions found in these harsh environments. Public Square Solutions cannot warrant our products against these severe conditions. Due to the unsuitability of many cleaning agents any damage caused by the use of unsuitable cleaning agents is specifically excluded from the terms of this Warranty. 7.5. This Warranty does not extend to, and the Buyer shall be responsible for costs incurred for labor, removal or reinstallation of the Products and the replacement parts, or to damage to equipment, accessories or components caused by such removal or reinstallation. 7.6. This Warranty is limited to the sale of new Product packages sold by Public Square Solutions or its authorized resellers. All sales and other agreements between the Buyer and its customers, end users or other third Parties are the exclusive responsibility of the Buyer to them (and do not concern Public Square Solutions howsoever) and will NOT be covered by this Warranty agreement. Important Limitations 7.7. Public Square Solutions, at its discretion, may use new, refurbished, or reconditioned replacement parts to perform any warranty repair of its Products. 7.8. Saving for the provisions of Clause 10 of this document, the Buyer acknowledges and agrees that the provisions of this Warranty constitute the sole and exclusive remedy available to it with regard to defective Products. The Buyer accepts that no further warranties other than those expressly stated herein are implied. Laws from time to time in force in the relevant market may imply warranties which cannot be excluded, or which can only be excluded to a limited extent, in which case, Public Square Solutions limits its liability to the extent permitted by law. If Public Square Solutions cannot exclude any warranty implied by the relevant law, this Warranty shall be read and construed subject to such statutory provisions. Any replacement will not extend the period within which this Warranty can be asserted. The warranty in this Warranty may be asserted by the Buyer only and not by the Buyer's customers, end users or other third persons. 7.9. Neither oral statements made by Public Square Solutions ‘agents or employees; nor any verbal arrangement; nor any advertising material or statement in any brochure, catalogue, website, or other material furnished by Public Square Solutions or on its behalf, nor any term or condition or any purchase order submitted by Buyer; nor any other oral or written term or statement not contained herein shall constitute a warranty, and shall be relied upon by Buyer as part of the warranty agreement, or become a part of the contact for sale evidenced hereby. Returns & Repairs 7.10. Products claimed defective or non-conforming must be returned to Public Square Solutions’ manufacturing location or regional office (at Public Square Solutions’ option) at the Buyer's expense with a statement identifying the reason for the return. Products under warranty will be repaired or replaced by Public Square Solutions without any charge for parts. Public Square Solutions offers a warranty for repaired / replaced parts for the same type of failure for six months or the extent of the remaining warranty, whatever term is shorter. Public Square Solutions may levy a service charge in handling products which are returned to Public Square Solutions but are found in good working order or damaged by the Buyer or requiring adjustment due to incorrect usage. 7.11. Before the Products are returned, Public Square Solutions may at its discretion and option assign an authorized representative to attend the Buyer’s office at the Buyer’s expense for an inspection of the Products claimed defective and to determine if they are in good operating condition. To make the Products eligible for this Warranty, any request for repair / replacement shall be done by submitting the manufacturers “Return Material Authorization (RMA)” form via the Public Square Solutions electronic RMA portal to Public Square Solutions by the expiry of the warranty period. Any Products claimed defective and not returned to Public Square Solutions within the specified time limit (60 days) should be submitted in writing for approval by Public Square Solution of the warranty will be treated as expired. 7.12. The Buyer will not return the Products to Public Square Solutions for warranty repair without first obtaining an RMA login from Public Square Solutions and inputting the required information onto the online RMA portal. The approved RMA bearing the RMA number will be returned to the Buyer electronically and a copy must be included in the shipment of Product to Public Square Solutions’ designated address. The RMA number must be clearly marked on the shipping documents and packing list. All costs of freight, packing, insurance and other costs/charges as summarized in Clause 4 above are at the Buyer’s expense. 7.13. Public Square Solutions will notify the Buyer if such Products are not subject to warranty repair and, unless disposition instructions as to such Products are received from the Buyer within five days of such notification, such Products may be returned to the Buyer with freight, packing, insurance and other charges at the Buyer’s expense. Products or parts repair will be performed only at Public Square Solutions factory or other approved facilities by Public Square Solutions. Coverage Type 7.14. Parts replacement and repair: Provided the Products are used within Public Square Solutions’ specification; Public Square Solutions will repair or replace failed parts. 7.15 All Public Square Solutions LED screens are built with state-of-the-art LED components. To avoid disruptive pixel faults, the production of our LED screens is carefully controlled using our 228-step Quality Product Management system that allows us to have total control of the build process and full evaluation of each product's performance before Factory Acceptance Test and final sign-off. Whilst we endeavor to deliver pixel perfect screens, it is inevitable that there will be pixel failures from time to time, not least because of the vast number of LEDs used in today's high-resolution products. We offer a limited warranty based on a maximum failure rate of 30 pixels per million pixels. If the number of faulty pixels exceeds this rate you are entitled to make an RMA warranty claim. 7.16. For LED Tiles (as defined in the Public Square Solutions user manuals, Public Square Solutions will repair or replace failed LEDs at Public Square Solutions’ discretion. Public Square Solutions defines LED failure when the LED will no longer emit light. LED Tile repair or replacement will be performed at Public Square Solutions’ designated facilities. This agreement will NOT cover LED degradation as all LEDs will degrade to the point of zero emission even though the LEDs will still be operating. 7.17. For other parts, Public Square Solutions defines failure as a malfunction of the equipment that causes the failure of an area of screen display greater or equivalent excluding normal wear and tear. Exclusions Batch to batch matching 7.18. Batch to batch uniformity is a common issue to the LED screen industry. Public Square Solutions, being no exception, CANNOT guarantee batch to batch uniformity. LEDs are sensitive to temperature variation. Buyer/installer for any signage has the responsibility to take care of thermal management for the Products. Any parts that are taken out from panels and installed into other casing will NOT be treated as Public Square Solutions’ original manufactured product and this Warranty will be void. Failure proved to be a lack of maintenance on the Buyer’s, or its agents or its end-user’s part will NOT be covered by this Warranty. Software application 7.19. Public Square Solutionsgrants to Buyer a non-exclusive, non-transferable, personal right to use the software prior to a written request and/or approval by Public Square Solutions. This right is meant to limit the use of Public Square Solutions’ software by the Buyer and only within the Buyer’s wholly owned facility. The software cannot be used under any circumstances or arrangement by or on behalf of any third party in any facility. Buyer’s Obligations 7.20. All sales and other agreements between the Buyer and its customers, end users or other third Parties are the exclusive responsibility of the Buyer and any commitments made by the Buyer to such customers, end users and other third Parties with respect to the delivery, performance, suitability, warranty or other matters relating to the Products are the Buyer's sole responsibility except as may be expressly set forth in this Warranty. 7.21. To qualify for this Warranty the Buyer must be the original purchaser of the Products. The Products must be purchased from Public Square Solutions or its authorized resellers. This Warranty is not transferable, and proof of original purchase may be required. The Products must be used in accordance with Public Square Solutions’ specification. No Other Warranties 7.22. To the maximum extent allowed by applicable laws, all other warranties, whether implied or statutory, and all obligations and representations as to performance, quality or absence of hidden defects, including all warranties which might arise from course of dealing or custom or usage of trade and including all implied warranties of merchantability or fitness for a particular purpose, are hereby expressly excluded and disclaimed by the manufacturer. Public Square Solutions does not warrant that the functions contained in the Public Square Solutions Products will meet the buyer’s requirements or that the operation of the Products will be uninterrupted or error free. Post warranty extension contract 7.23. Prior to the expiry of this Warranty, the Buyer may request a warranty extension contract from the manufacturer. It is, however, the sole discretion of Public Square Solutions to offer any warranty extension contract to the Buyer. General 7.24. The extent of Public Square Solutions’ maximum liability under this Warranty is limited to the repair or replacement provided above and, in no case, shall Public Square Solutions’ liability exceed the purchase price paid by Buyer for the Products or parts. This Warranty is governed by the laws of England and the Buyer hereby agrees to submit to the exclusive jurisdiction of the Hong Kong courts whilst that Public Square Solutions may commence proceedings in any other competent jurisdiction at its discretion. Public Square Solutions disclaims any responsibility for any lost profits or any special, indirect, or consequential damages. Any implied warranties that cannot be excluded are limited to the duration of this Warranty. 7.25. The provisions of this Warranty may be amended or modified only in writing signed by an authorized officer of Public Square Solutions. If any provision of this Warranty is held invalid by any law or regulation of any government or by any court, such invalidity shall not affect the enforceability of other provisions in this Warranty. The provisions of this Warranty will be binding upon the Buyer's successors and assignees. No agent, employee or representative of Public Square Solutions has any authority to make any representation or warranty for Public Square Solutions with respect to the Products that is not contained in this Warranty. This Warranty is a part of, and hereby incorporates by reference all of the terms of, Public Square Solutions’ standard Terms and Conditions of Sale, and together with such Terms and Conditions of Sale, contains the entire agreement of the Parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, understandings, promises and representations or warranties.
8. CLAIMS
8.1 Except for claims for breach of the Warranties, the Buyer's failure to give notice to the Seller of any claim within 7 days after Title of the Products have passed to the Buyer shall be an unqualified acceptance of such Product and a waiver by Buyer of all claims with respect thereto. 8.2 The Contested Products must be kept at the Seller's disposal and can only be returned to the Seller with the Seller's prior written consent.
9. CANCELLATION
9.1 In the event that (i) a petition in bankruptcy is filed by or against the Buyer, or (ii) the Buyer is declared bankrupt, or (iii) the Buyer becomes insolvent or his credit becomes impaired in the reasonable opinion of Seller, or (iv) proceedings are initiated by or against the Buyer seeking appointment of a receiver, reorganization, liquidation, dissolution, debt rearrangement or any other similar relief, or (v) if the Buyer fails to perform or fulfill at any time any material obligation or condition hereunder, the Seller, at its discretion, shall have the right to request either the performance or the cancellation of the sale. In the latter case, the sales contract shall automatically and without prior summons or notice period be cancelled with immediate effect because of Seller having expressed his will to do so by simple registered letter. In such case, the Seller shall be entitled, without prejudice to any other remedies, to repossess the Products without the intervention of any court of justice and the Buyer shall assist the Seller hereto. In such case, the Buyer shall not be entitled to any compensation. 9.2 In case the Buyer cancels an order, the Buyer shall owe to Seller 100% of the amount of the order as liquidated damages. Advances which have already been paid will accrue definitively to Seller to the extent of the compensation due.
10. LIMITATION OF LIABILITY
10.1 The following provisions set out the Seller’s entire liability (including any liability for the acts and omissions of its employee’s agents and contractors) to the Buyer in respect of any breach of its contractual obligations arising under these terms any representation statement or tortious act or omission including negligence arising under or in connection with the sale of Products. 10.2 Any act or omission on the part of the Seller or its employees, agents or contractors falling within Clause 10.1 above shall for the purposes of this Clause 10 be known as an "Event of Default". 10.3 The Seller's liability to the Buyer for death or injury resulting from its own or that of its employees' agents' or contractors' negligence shall not be limited. 10.4 Subject to the limits set out in Clause 10.5 below, the Seller shall accept liability to the Buyer in respect of damage to the tangible property of the Buyer resulting from the negligence of the Seller its employees or agents. 10.5 Subject to the provisions of Clause 10.3 above the Seller's entire liability in respect of any Event of Default or Events of Default shall be limited to damages of an amount equal to the aggregate of the value of the Product sold on a sale-by-sale basis. 10.6 Subject to Clause 10.3 above the Seller shall not be liable to the Buyer in respect of any Event of Default for loss of profits goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Buyer as a result of an action brought by a third Party) even if such loss was reasonably foreseeable or the Seller had been advised of the possibility of the Buyer incurring the same. 10.7 The Buyer hereby agrees to afford the Seller not less than one hundred and eighty days (following notification thereof by the Buyer) in which to remedy any Event of Default. 10.8 Except in the case of an Event of Default arising under Clause 10.3 above the Seller shall have no liability to the Buyer in respect of any Event of Default unless the Buyer shall have served notice of the same upon the Seller within one month of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware. 10.9 Nothing in this clause shall confer any right or remedy upon the Buyer to which it would not otherwise be legally entitled.
11. CONFIDENTIALITY
11.1 Each of the Parties hereto undertakes to the other to keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into the sale of Products save that which is in the public domain other than as a result of a breach of this clause. 11.2 Each of the Parties hereto undertakes the other to take all such steps as shall from time to time be reasonably necessary to ensure compliance with the provisions of this Clause 11 by its employee’s agents and contractors. 11.3 The provisions contained in this Clause 11 shall continue to apply without limit in point of time.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 Any patents, trademarks, copyrights, and/or any other intellectual property rights and/or any proprietary or confidential information related to the Products shall remain the property of the Seller or its licensor, as the case may be, and nothing herein shall be construed as conferring on the Buyer by implication or otherwise, any right, title or interest in, or any license under any intellectual property right, confidential information or other trade secret now or subsequently owned by the Seller. 12.2 The software supplied by the Seller to the Buyer hereunder shall always remain the property of the Seller or the licensor. The Buyer shall always comply with terms and conditions of the license imposed by the Seller or the licensor. The Seller hereby grants to the Buyer a non-exclusive license to use the software solely for the purpose of operating the Products delivered hereunder. The Seller hereby grants to the Buyer the right to assign the software user license referred to above to the end user to whom the Buyer resells the Products.
13. EXPORT
13.1 The Buyer shall comply with all export laws, restrictions and regulations of any agency or authority and shall not export, nor permit the export or re-export of (i) any proprietary information or software or any copy thereof, or (ii) the Products in violation of any such laws, restrictions and regulations, or without all required licenses and authorizations, to any country to which the said export laws, restrictions and regulations prohibit exportation.
14. RESTRICTIONS
14.1 The Buyer agrees that it shall not during the continuance of any discussions or for a period of twelve months after the sale of the Products for any reason whatsoever either on its own account or in conjunction with or on behalf of any other person directly or indirectly whether as principal partner employee agent shareholder or otherwise howsoever employ solicit the employment of or interfere with or endeavor to entice away from the Seller or endeavor to enter into a relationship of principal and agent with any person who is an employee of the Seller. 14.2 The Buyer agrees that it shall not for a period of twelve months after the sale of the Products either on its own account or in conjunction with or on behalf of any other person directly or indirectly whether as principal partner employee agent shareholder or otherwise howsoever employ solicit the employment of or enter into the relationship or principal and agent with any person who was an employee of the Seller at any time during the twelve month period immediately preceding the date of sale. 14.3 The Buyer agrees that it shall not during the sale of the Products either on its own account or in conjunction with or on behalf of any other person directly or indirectly whether as principal partner employee agent shareholder or otherwise howsoever employ solicit the employment of or enter into the relationship of principal and agent with any person who was an employee of the Seller during the twelve month period immediately following the date upon which such person ceased to be employed by the Seller. 14.4 The restrictions contained in Clauses 14.1, 14.2 and 14.3 are considered reasonable by the Parties but in the event that in any judicial or arbitration proceedings such restrictions shall be found to be void but would be valid if some part thereof were deleted or the period of application reduced such restrictions shall apply with such modification as may be necessary to make them valid and effective and shall be enforced to the extent permitted by law.
15. WAIVER
15.1 The waiver by either Party of a breach or default of any of the provisions of these Terms and Conditions by the other Party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either Party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other Party.
16. NOTICES
16.1 All notices which are required to be given hereunder shall be in writing and shall be sent to the respective registered offices. Any such notice may be delivered personally or by first-class pre-paid letter and shall be deemed to have been served if by personal delivery when delivered if by first class post seven days after posting.
17 INVALIDITY AND SEVERABILITY
17.1 If any provision of these Terms and Conditions shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of these Terms and Conditions and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The Parties hereby agree to attempt to substitute for any invalid or unenforceable provision, a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
18. ENTIRE AGREEMENT BETWEEN THE PARTIES
18.1 The Seller shall not be liable to the Buyer for loss arising from or in connection with any representations agreements statements or undertakings made prior to the sale of the Products other than those representations agreements statements or undertakings confirmed by a duly authorized representative of the Seller in writing or expressly incorporated or referred to in this agreement.
19. INDEMNITY
19.1 The Buyer shall indemnify and keep indemnified the Seller against injury (including death) to any person or loss of or damage to any property (including but not limited to the Licensed Programs) which may arise out of the act default or negligence of the Buyer its employees agents or contractors and against all claims demands proceedings damages costs charges and expenses whatsoever in respect thereof or in relation thereto PROVIDED THAT the Buyer shall not be liable for nor be required to indemnify the Seller against any compensation or damages for or with respect to injuries or damage to persons or property to the extent that such injuries or damage result from any negligence on the part of the Seller its employees or agents.
20. SUCCESSORS
20.1 These Terms and Conditions shall be binding upon and endure for the benefit of the successors in title to the Parties hereto.
21. ASSIGNMENT
21.1 The Buyer shall not be entitled to assign any of its rights or obligations hereunder without the prior written consent of the Seller.
22. GOVERNING LAW AND JURISDICTION
22.1 The sale of Products and these Terms and Conditions shall be governed by and construed in accordance with US law and the Parties hereto hereby submit to the non-exclusive jurisdiction of the US courts.