All transactions are governed by Catapult Lighting, LLC’s (“Catapult”) terms and conditions of sale (“Agreement”). Any proposal that includes different or additional terms that vary from Catapult’s terms and conditions of sale are objected to and disallowed, except for those additional and supplemental terms that are included on a proposal by Catapult. Notwithstanding the foregoing, any such counter proposals by buyer (“Buyer”) shall not operate as a rejection of the contract of sale, but as a rejection of the additional or different terms.

In consideration of the mutual covenants and conditions set forth herein, and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: 

  1. Formation of Contract. A purchase order is deemed by Catapult to be an offer to purchase, which Catapult may accept or reject in its sole discretion. Catapult’s acceptance of an offer to purchase is binding on Catapult only if made by written instrument (such as a proposal) or, if not by written instrument, by shipment of the products ordered, and acceptance by shipment shall only be binding as to the portion of the order actually shipped by Catapult. Any agreement with Catapult is subject to Catapult’s Terms and Conditions of Sale stated herein and that such Terms and Conditions are in full force and effect upon a purchase order issued by Buyer to Catapult. Buyer acknowledges and agrees that this Agreement supersede any purchase orders, terms, contracts, agreements, etc. that Buyer sends to Catapult for execution.
  2. Proposals. For most sales, Catapult is expected to furnish Buyer with a proposal, which shall memorialize in detail the items to be sold (“Goods”) pursuant to Buyer’s order. Any changes to the proposal voids the proposal.
  3. Terms. Buyer’s acceptance of a proposal or taking possession of the Goods (whichever occurs first) shall be deemed acceptance of Catapult’s Terms and Conditions of Sale herein.
  4. Payment. Buyer shall pay the full amount due as indicated on Catapult’s proposal (“Purchase Price”). However, if the proposal does not establish specific payment terms, then the payment terms in this Agreement shall govern. The general payment terms of this Agreement are as follows: full upfront payment by Buyer due either (1) upon the acceptance of Catapult’s proposal or (2) upon the submission of Buyer’s final purchase order to Catapult accepting Catapult’s proposal. Catapult may withhold or refuse to ship any and all of the Goods if Buyer does not submit a payment in accordance with the payment schedule herein. Notwithstanding the foregoing, to the extent Catapult proposal terms differ from the payment terms herein, the proposal terms shall govern.
  5. Pricing. Buyer acknowledges and agrees that pricing is never guaranteed. Buyer acknowledges that pricing is subject to changes based on numerous factors and to the extent pricing does, Buyer would be responsible for any such increase in pricing.
  6. Freight Charges. Freight is Buyer’s responsibility. Any additional freight charges that arise from a transaction between Catapult and Buyer shall be Buyer’s responsibility. Catapult shall forward any invoices for freight charges to Buyer for immediate payment by Buyer.
  7. Late Fees: In the event that Buyer does not submit a timely payment in accordance with its obligations under this Agreement, Buyer shall pay a monthly service charge of one-and-a-half percent (1.5%) of any outstanding payments. Moreover, Catapult is entitled to refuse or withhold any and all Goods until such payment is made.
  8. Credit Card Payments. A 4% handling fee will be applied to any payment made by credit card.
  9. Credit. Catapult may, but shall not be obligated to, grant credit terms to Buyer. Catapult’s acceptance as confirmed by Catapult’s proposal of any purchase order, on a credit basis, is subject to final written approval by Catapult. Catapult reserves the right to cancel any agreement, order, invoice or proposal if Catapult deems Buyer unable to pay for any products. Catapult reserves the right, in its sole discretion and without prior notice, to deny, change, or limit the amount or duration of credit to be allowed to Buyer, either generally or with respect to a particular purchase order or invoice, and may require cash payments in advance or security satisfactory to Catapult.
  10. Transfer of Property and Risk of Loss. Catapult retains ownership and title to the Goods sold to Buyer until Catapult is paid in full for the Goods. Buyer shall obtain the right and title to the products upon final payment to Catapult of the purchase price and any taxes, excise, or other charges. The risk of loss, including, but not limited to the risk of loss, theft, damage, or destruction of the Goods, transfers to Buyer, upon delivery of the Goods. This Agreement supersedes any lien waivers or indemnity waivers that Buyer may have Catapult execute when requisitioning for payment.
  11. Mis-Shipments or Damage. Buyer is responsible, at the time of delivery, for ensuring that Catapult’s shipments conform to the relevant proposals issued by Catapult. Buyer is responsible for confirming all counts, confirming compliance with plans, and confirming compliance with specifications. Buyer must report any mis-shipment of Goods or damaged or malfunctioning Goods to Catapult within six (6) hours of delivery to the project manager assigned or associated with the project (if no project manager has been assigned, please notify [email protected]). If Buyer notifies Catapult within the six-hour window of a damaged / malfunctioned Good or mis-shipment, Catapult will endeavor to notify the respective manufacturer of such damaged / malfunctioned Good or mis-shipment. Thereafter, Buyer will be responsible for dealing with the respective manufacturer and beholden to the manufacturer’s procedure for handling such mis-shipment or damaged / malfunctioned Good. For the avoidance of doubt, Catapult is always absolved from any liability or responsibility pertaining to damaged / malfunctioned Goods or mis-shipment.
  12. No Set-Off; Retainage. Buyer shall have no right to set-off or withholding, and no deduction of any amounts due from Buyer to Catapult shall be made without Catapult’s prior, express, and written approval. Buyer waives any right of retainage with respect to the Goods.
  13. Cost of Delivery, Taxes and Other Charges. Buyer shall pay the cost of delivery of the Goods. Additionally, Buyer shall be responsible for any additional charges associated with shipping, which may include but is not limited to signature requirement fees, lift gate fees, delivering goods to a specified location at the delivery location. Should Catapult receive any such charges from the manufacturer or shipping company, Catapult will forward such invoices to Buyer for immediate payment. Buyer also acknowledges and agrees that its obligations herein are subject to each individual manufacturer’s term and conditions. Buyer shall pay all sales, use, excise or similar taxes, or other charges, which Catapult is required to pay, or to collect and remit, to any Government (national, state, or local) and which are imposed on or measured by the sale.
  14. Returns and Exchanges. All returns or exchanges must be authorized in advance by Catapult. All returns or exchanges are subject to the respective manufacturer’s published terms and conditions. If a return is authorized, Buyer will be entitled to a credit for the amount of each item returned only after the item has been inspected by the proper vendor or manufacturer and after any damage / defect has been deemed to fall under the applicable warranty. If an exchange is authorized, Buyer will be provided with a replacement item only after the item has been inspected by the proper vendor or manufacturer and after any damage / defect has been deemed to fall under the applicable warranty. Buyer is responsible for any delivery and postage fees associated with any returns or exchanges.
  15. Custom and Specialty Orders. Any custom or specialty orders will be indicated as such, by Catapult, either on its proposal, via verbal confirmation with Buyer, or via email with Buyer. Buyer understands and agrees that due to the nature of such Goods, no refunds or exchanges will be issued for custom Goods, and Buyer will be responsible for the entire purchase price with respect to an order for custom goods, regardless of whether or not such order has been received by the Buyer. If manufacturer requires a deposit, Buyer will be responsible for the entire deposit.
  16. Restocking Fee. Buyer agrees to pay for any manufacturer-issued restocking fee, which is minimally 60% percent of the cost of any Goods that are returned or exchanged. Restocking fees apply to any returns, exchanges, or cancellations. Moreover, restocking fees may be greater as they are subject to each individual manufacturer’s terms and conditions.
  17. Indemnification. To the extent permitted by law, Buyer agrees to indemnify, defend and hold Catapult and its members, affiliates, respective offices, directors, employees and agents, harmless from and against any and all claims, losses liabilities, damages, expenses, and costs, including reasonable attorney’s fees and court costs, arising out of Buyer’s (i) negligence or willful misconduct, (ii) infringement of a third-party’s intellectual property rights, (iii) material breach of any of the terms of this Agreement, or (iv) material breach of the terms of any outside agreements that may have bearing on this Agreement. If Catapult is seeking indemnification, Catapult shall provide Buyer with prompt written notice of any claim. In the event that Buyer provides such defense or indemnification, Catapult retains its right to choice of counsel.
  18. No Warranties. CATAPULT DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, ITS DURABILITY, CONDITION, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE. BUYER ACKNOWLEDGES ACCEPTANCE OF THE MATERIALS ON AN “AS IS, WHERE IS” BASIS, WITH “ALL FAULTS” AND WITHOUT ANY RECOURSE WHATSOEVER AGAINST CATAPULT. BUYER ASSUMES ALL RISKS ASSOCIATED WITH THE EQUIPMENT AND RELEASES CATAPULT FROM ALL LIABILITIES AND DAMAGES (INCLUDING LOST PROFITS, PERSONAL INJURY, AND SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN ANY WAY CONNECTED WITH THE MATERIALS, ITS INSTALLATION, OPERATION OR USE OR ANY DEFECT OR FAILURE THEREOF, A BREACH OF CATAPULT’S OBLIGATIONS HEREIN OR ERRORS OR INACCURACIES IN INFORMATION OBTAINED FROM BUYER OR THIRD PARTIES, UPON WHICH CATAPULT RELIES; PROVIDED HOWEVER, IF BUYER IS A CUSTOMER UNDER APPLICABLE LAW, THEN NO CONSEQUENTIAL DAMAGES LIMITATION OF INJURIES TO PERSONS SHALL APPLY.
  19. Limitation of Liability. IN NO EVENT SHALL CATAPULT BE LIABLE UNDER THIS AGREEMENT TO BUYER FOR AN INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, SHUTDOWN OR SLOWDOWN COSTS, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, OR OTHER ECONOMIC LOSS, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THAT SUCH DAMAGES COULD HAVE REASONABLY BEEN FORESEEN. CATAPULT’S LIABILITY, AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER UNDER THIS AGREEMENT, REGARDLESS OF LEGAL THEORY, SHALL BE NO GREATER THAN THE ACTUAL PURCHASE PRICE OF THOSE GOODS WITH RESPECT TO WHICH SUCH CLAIM IS MADE.
  20. Termination. The occurrence of any event set forth below in this Section 18 (together with any event set forth elsewhere in this Agreement where Catapult is expressly granted the right to terminate this Agreement) shall constitute a default by Buyer under this Agreement (each, an “Event of Default”). Upon an Event of Default, Catapult is expressly granted the right to terminate this Agreement), Catapult shall have the right (in addition to all other rights and remedies available to Licensor under this Agreement and applicable law), to terminate this Agreement upon written notice of termination to Buyer (“Termination Notice”); provided, however, in the case of: (1) an Event of Default described in Sections 10.1 or 10.2 below only, Buyer shall have ten (10) business days from its receipt of the Termination Notice to cure such Event of Default; and (2) an Event of Default described in Sections 10.3 through 10.6 below, this Agreement shall automatically terminate by its terms.
    1. Buyer’s failure to make any required payment to Catapult when due;
    2. Termination for Breach. Catapult may terminate this Agreement at any time. In the event of a breach by Buyer, of a material covenant, commitment or obligation under this Agreement that remains uncured: (i) in the event of a monetary breach, ten (10) calendar dates following written notice thereof; and (ii) in the event of a non-monetary breach, after thirty (30) days following written notice. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either Party. Termination shall be in addition to any other remedies that may be available to the non-breaching Party.
    3. Obligations under Termination. Termination of this Agreement for any reason shall not discharge either Party’s liability for obligations incurred hereunder and amounts unpaid at the time of such termination. Buyer shall pay Catapult for all Goods delivered prior to the effective date of termination and Catapult shall not be obligated to return any monies paid to it by Buyer for work completed.
  21. Relationship of the Parties. The relationship of the Parties is that of vendor and purchaser. Nothing in this Agreement, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship, or a partnership, or joint venture relationship between the Parties or between one Party and the other Party’s employees or agents. Accordingly, Buyer shall not be empowered to bind Catapult in any way, to incur any liability, make any statements, representations, warranties or commitments, or otherwise act on behalf of Catapult. Each Party shall be solely responsible for payment of its employees’ salaries (including withholding of income taxes and social security), Workers’ Compensation, and all other employment benefits.
  22. Force Majeure. Catapult shall not be liable hereunder for any failure or delay in the performance of its obligations under this Agreement, and if such failure or delay is on account of causes beyond Catapult’s reasonable control, including civil commotion, war, fires, floods, accidents, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, pandemics, epidemics, shutdowns related to any epidemics or pandemics not limited to COVID-19, local disease breakouts, public health emergencies, communicable diseases, quarantine, or acts of God, in addition to any and all events, regardless of their dissimilarity to the foregoing, beyond the reasonable control of Catapult, for so long as such force majeure event is in effect and for a reasonable period thereafter. Catapult shall endeavor to provide Buyer with notice of the occurrence of such an event within fourteen (14) business dates of its occurrence.
  23. Governing Law and Venue. This Agreement will be governed and interpreted in accordance with the laws of the State of New York, without giving effect to the principles of conflicts of law of such state. The UN Convention on Contracts for the International Sale of Goods shall not apply under this Agreement. The Parties agree that any action arising out of this Agreement will be brought solely in any state or federal court located in The State of New York, County of New York. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court. The Parties further agree, that to the extent permitted by law, to waive any right to trial by jury with respect to any claim, counterclaim or action arising from the terms of this Agreement.
  24. Attorney’s Fees. If either Party incurs any legal fees associated with the enforcement of this Agreement or any rights under this Agreement, the prevailing Party shall be entitled to recover its reasonable attorney’s fees and any court, arbitration, mediation, or other litigation expenses from the other Party.
  25. Collection Expenses. If Catapult incurs any costs, expenses or fees, including reasonable attorney’s fees and professional collection service fees, in connection with the collection or payment of any amounts due under this Agreement, Buyer agrees to reimburse Catapult for any such costs, expenses, fees and interest.
  26. Assignment; No Third-Party Beneficiaries. Buyer may not assign this Agreement, either in whole or in part, nor delegate any performance hereunder, without the express and written consent of Catapult, which consent shall be at Catapult’s sole and absolute discretion. Any assignment without such consent shall be null and void. Catapult may assign this Agreement upon written notice to Buyer.
  27. Severability. If any provision or portion of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provision, terms or portions shall remain in full force and effect.
  28. Survival. Each term and provision of this Agreement that should by its sense and context survive any termination or expiration of this Agreement, shall so survive regardless of the cause and even if resulting from the material breach of either Party to this Agreement.
  29. Counterparts; Authorized Signatories. It is agreed and warranted by the Parties that the individuals executing this Agreement on behalf of the respective Party are authorized to execute such an Agreement. No further proof of authorization shall be required. This Agreement may be executed by facsimile and in one or more counterparts. Each of which will be deemed to be an original, but all of which together will constitute one and the same instrument, without necessity of production of the others.
  30. Notices. All notices or other communications required under this Agreement shall be deemed effective when received and made in writing by either (i) hand delivery, (ii) registered mail, (iii) certified mail, return receipt requested, (iv) overnight mail, or (v) electronic communication as indicated herein.
  31. Modification; Waiver. This Agreement may be modified only by a written amendment signed by authorized representatives of both Parties. No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision thereafter.
  32. Entire Agreement. This Agreement, including any Exhibits hereto, is the entire agreement between the Parties with respect to the subject matter and supersedes any prior agreement or communications between the Parties, whether written or oral. No course of prior dealings between the Parties and no usage of the trade shall be relevant to supplement or explain any term used in this Agreement. Acceptance or acquiescence in a course of performance rendered under this Agreement shall not be relevant to determine the meaning of this Agreement even though the accepting or acquiescing party has knowledge of the nature of the performance any opportunity for objection.
  33. Misc. Any future manufacturer cost increases due to impending tariffs or market volatility are beyond Catapult’s control and will be applied at time of order if enacted. This includes any order on hold for release. Moreover, hold for release orders do not hold pricing.