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Terms and Conditions


BRAGS&HAYES, INC. TERMS AND CONDITIONS OF SALES


 

OFFER AND ACCEPTANCE - The selling corporation named Brags&Hayes, Inc. on the face of this document (“Seller”) offers to sell the equipment, components, parts, or services described on the face of this document (collectively, the “Goods”) upon these terms and conditions (“Terms and Conditions”). Acceptance of these Terms and Conditions shall be deemed to have occurred upon Buyer’s issuance of a purchase order, acceptance or acknowledgement hereof, or of any other writing or electronic communication the Buyer may provide to Seller relating to Buyer’s acceptance hereof, or Buyer’s acceptance of any Goods or payment of any portion of the purchase price therefore (collectively, the “Order”). This document, upon issuance of the Order, constitutes the complete and exclusive statement of the terms and conditions regarding the purchase and sale of the Goods (the “Agreement), and supersedes and cancels all previous or contemporaneous understandings and agreements, whether oral or written. The sale and shipment by the Seller of the Goods covered hereby shall be conclusively deemed to be subject to these Terms and Conditions and shall constitute Buyer’s assent to Seller’s terms.  Acceptance by Buyer is expressly limited to the Terms and Conditions contained herein. If Buyer’s Order contains terms that are inconsistent with, additional or to conflict with these Terms and Conditions, the Buyer’s form shall be used for convenience only and shall evidence Buyer’s unconditional agreement to these Terms and Conditions, and such conflicting, additional or inconsistent terms or conditions contained in Buyer’s Order shall be deemed a solicitation of the offer set forth herein and shall not be considered a part of the Agreement, but shall be deemed rejected and of no binding force or effect whatsoever between the parties, and the terms hereof shall supersede and shall exclusively govern and control. This Agreement may not be modified except in a writing signed by all parties to be bound.

PRICES – All prices on the face of the invoice shall be adjusted to Seller’s prices in effect at the time of order entry unless Seller has given a firm quotation in writing and Buyer has given an order and released the goods for shipment within the time periods specified in the quotation. Price is according to the INCOTERMS of the quote.  Freight allowance, if any, is subject to Seller’s current shipping terms. Prices are based on shipping the entire order at one time unless otherwise specified.

TAXES- Buyer shall pay all present and future sales, use, revenue, excise or any other taxes applicable to Seller’s sale of Goods or Buyer’s use of the Goods. The amount of all such taxes shall be in addition to, and not included in, the price of the Goods. Any taxes (other than income taxes) that Seller may be required to pay, and that are paid by Seller under any existing or future law upon or with respect to the sale, purchase, delivery, storage, processing, use, consumption of transportation of any of the Goods covered hereby, shall for the account of Buyer, who shall promptly pay or reimburse the amount thereof to the Seller upon demand. Buyer may provide, in lieu of payment of such taxes, tax exemption certificates in form acceptable to the appropriate taxing authorities.

TERMS OF PAYMENT – All payments are C.O.D. with the exception were a concession agreement is in place (Annex A).

DESIGN CHANGES – SeIler and its suppliers reserves the right to make revisions without notice in the design of product or in packaging, unless this right has been specifically waived in writing at the time the order is accepted.

 

SHIPMENT – Transportation costs shall be charged to Buyer and risk of loss shall transfer to Buyer upon delivery of goods to common carrier, Buyer or buyer’s agent. Such delivery shall constitute complete and final delivery for all purposes. Seller shall not be liable for negligence or otherwise in the selection of the mode of transportation. Seller shall not be liable for any losses whatsoever, whether incidental, consequential or otherwise, attributable to or resulting in any way from delays in shipping or damage occurring during shipping. Seller may in its discretion ship the Goods to Buyer at Buyer’s address as shown on the face hereof by any commercially reasonable means and shall have the option of selecting the particular route and carrier.  All risk of loss, damage, and shortage in transit with respect to the Goods shall pass and transfer to Buyer upon such delivery, and Buyer shall pursue any claims therefor solely against the carrier. Except as otherwise expressly agreed in writing, and for an additional charge, Seller does not insure Goods against damage, loss or shortage in transit. Unless specified by Seller in the quote, the price for the Goods does not include charges for freight, packaging, insurance, or federal, state or municipal taxes, all of which are the responsibility of the Buyer. Any insurance desired is the responsibility of the Buyer.

INVENTORY· For goods held in Seller’s inventory beyond the scheduled delivery date as a result of Buyer’s failure or refusal to accept delivery are subject to a storage charge, and if the goods are not collected by the Buyer within 30 days, the Seller have the right to resale the goods and reschedule a new delivery date for the Buyer.

CANCELLATION· There are no order cancellations and no refunds.

INSPECTION AND ACCEPTANCE - Buyer shall inspect the Goods immediately upon receipt and, within seven (7) calendar days of such receipt, shall give Seller a full and final written statement of any and all purported defects and nonconformity of the Goods. If Buyer fails to give such written notice within such seven (7) calendar day period, Buyer shall be deemed to have irrevocably accepted the Goods. Buyer shall bear the expense of inspection under all circumstances. Buyer’s sole remedy for defective or nonconforming Goods is as set forth in Section BUYER’S REMEDIES.

FORCE MAJEURE -  If performance by Seller is delayed, limited or otherwise made impracticable or burdensome by reason of any cause beyond Seller’s reasonable control, including, without limitation: Acts of God; fire, flood, explosion; vandalism, sabotage; riot, civil unrest, war, insurrection; severe weather; failure, curtailment or termination of Seller’s regular sources of supplies; inability to obtain ora delay in obtaining necessary licenses, permits, materials, or equipment; acts or omissions of Buyers, its agents or representatives; delays due to shipping or common carriers; changes or additions to any Order; strikes, labor difficulties or other disputes involving Seller or its suppliers; or any
existing or future laws, acts, orders or decrees of any government or regulatory body; then (i) Seller shall not be liable for any loss or damage arising therefrom, (ii) Seller shall be excused from performance to the extent that and for so long as such performance is delayed or made impracticable or burdensome by such cause, and (iii) Seller may adjust the price of the Goods accordingly.

INSTALATIONS· Seller shall not be liable for negligence or otherwise in the selection of the mode and or installation, labor.

DISCLAIMER OF WARRANTY – To the extent that the Goods or portions or parts thereof may be covered by manufacturers’ warranty, Seller hereby assigns all rights and benefits under such manufacturers’ warranties to Buyer, if assignable, and undertakes to assist Buyer in the coordination of any claims under such warranties. Seller makes no further warranty of any kind with respect to the Goods. SELLER DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OF CONFORMITY TO SPECIFICATIONS, MODELS, SAMPLES OR OTHERWISE. SELLER WILL NOT BE LIABLE FOR ANY GENERAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOSS OF USE OR LOSS OF PROFITS, FOR ANY BREACH OF WARRANTY OR FOR NEGLIGENCE.

BUYER’S REMEDIES – Seller’s liability for any breach of any provision hereof is limited to either (i) repair or replacement of any nonconforming components of the Goods, or (ii) upon return of the nonconforming Goods, credit to the Buyer of the amount paid therefor, whichever Seller shall elect. Seller’s liability arising for any reason under this Agreement shall in no event be greater in the aggregate than the price paid by Buyer for the Goods and shall not include any labor, shipping or other costs incurred in connection with any repair, replacement, reinstallation or reshipment. Buyer shall provide Seller access to the Goods as to which Buyer claims a purported defect or nonconformance. Seller’s obligation to repair, replace or credit shall only apply to Goods that examination by Seller or Seller’s representatives determines to have been defective under ordinary and normal use. Upon request by Seller, Buyer shall, at its own risk and expense, promptly return the Goods in question to Seller’s address of it’s choice specified by the Seller in writting, any nonconforming Goods returned to Seller must be accompanied by proof of purchase, and the transportation of the Goods must be prepaid by Buyer. Any Goods that are repaired or replaced by Seller shall be re-delivered to Buyer F.O.B. Sellers address of it’s choice. Seller shall not be required to repair or replace more than the Goods actually found to be defective. No allowance shall be made for any expenses incurred by Buyer in repairing defective parts or supplying any missing parts except on the written consent of Seller. If Seller agrees to replace or repair a defective part, Buyer shall have the responsibility and bear the cost for and related to procuring and providing all necessary dismantling, reassembling, and handling facilities in connection with these services. Buyer is responsible for determining the suitability of Sellers products for Buyers use or resale, or for incorporating them into objects for applications that Buyer designs, assembles, constructs or manufactures. THE REMEDY SET FORTH IN THIS PARAGRAPH SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AGAINST SELLER AND BUYER WAIVES ALL OTHER REMEDIES AGAINST SELLER.

INDEMNIFICATION – Buyer hereby waives and releases Seller from, and shall defend, indemnify and hold harmless Seller and its shareholders, directors, officers, affiliates, predecessors, successors and assigns from and against, any and all claims, actions, causes of action, liabilities, liens, losses, expenses and costs (including, without limitation, the costs of litigation and attorneys’ fees), by Buyer or any third party claiming by, through or in the right of Buyer relating to: (i) the manufacture, purchase, sale, ownership, operation or use of the Goods or any device, material or thing to which the Goods are attached or of which the Goods are made a part or within which the Goods are enclosed; and (ii) any claimed or actual breach by Buyer of Buyer’s obligations hereunder or any acts primarily attributable to the conduct of Buyer or its employees and agents, including, but not limited to, the negligence or reckless conduct of Buyer’s employees or agents, Buyer’s maintenance of the Goods, Buyer’s addition to or modification of the Goods, or Buyer’s use of the Goods in an appropriate manner, regardless of whether Seller may be wholly, concurrently, partially, jointly or solely negligent or otherwise at fault and regardless of the manner in which such claim or liability arises. Buyer shall bear sole responsibility for providing adequate and efficient safeguards, work-handling tools, and safety devices necessary to provide a safe workplace and to protect fully all personnel from bodily injury or death which otherwise may result from the use, operation, setup or maintenance of the Goods. Compliance with all prevailing federal, state, and local codes and industry-accepted standards is the responsibility of Buyer alone. Seller shall bear no responsibility whatsoever for the failure of Buyer to order, install, or use safeguards, work-handling tools, or safety devices. Buyer shall establish, and require all persons who use, operate, set up, or maintain the Goods to use, all proper and safe operating procedures, including, but not limited to, procedures set forth in any manuals or instruction sheets relating to the Goods. Buyer shall not remove or modify any devices, warning signs, or manuals furnished with or installed upon or attached to the Goods.

LIMITATION OF LIABILITY IN GENERAL – In no event whatsoever shall Seller or any of its shareholders, directors, officers, affiliates, predecessors, successors and assigns, be able to Buyer or any third party or any of their shareholders, directors, officers, affiliates, predecessors, successors and assigns, for any incidental, indirect, consequential, exemplary or special losses, damages, costs or expenses of any kind relating in any way to the manufacture and sale of the Goods, the use of or inability to use such Goods, or acts or omissions in connection herewith (including, without limitation, lost profits or the use of or the loss of use of any of the Goods or other property), regardless of whether Seller and/or others may be wholly, concurrently, partially, jointly or solely negligent or otherwise at fault, and whether or not the Seller has been made aware of the potential for any such liability. In no event shall Seller’s liability arising under this Agreement for any reason exceed, in the aggregate, the purchase price of the Goods purchased hereunder.

MODELS, PREPRODUCTION OR EVALUATION SAMPLES; SPECIAL ORDERS – (a) In any case where Seller provided Buyer with models, prototypes, preproduction, evaluation or specification samples, whether or not pursuant to designs or specifications provided by Buyer (collectively), “Prototypes”). Buyer shall examine the Prototypes fully. Such Prototypes shall not be offered for sale, sold or provided to, or incorporated into, attached to or enclosed within any device, material, product or thing that is subsequently offered for sale to or consumption or use by, any third parties or the general public. Buyer agrees to defend, indemnify and hold harmless Seller and its shareholders, directors, officers, affiliates, predecessors, successors and assigns, from and against any and all claims, actions, causes of action, liabilities, liens, losses and costs (including, without limitation, the costs of litigation and attorneys’ fees), resulting from Buyer’s breach of this Section. (b) If any material shall be manufactured and/or sold by Seller to meet the Buyer’s particular specifications or requirements and is not part of the Seller’s standard product line offered by it to the trade generally in the usual course of the Seller’s business. Buyer agrees to defend, protect, and save harmless Seller against all suits at law or in equity and from all damages, claims, and demands for actual or alleged infringement of any United States or foreign patent and to defend any suit or actions which may be brought against Seller for any actual or alleged infringement because of the manufacture and/or sale of the material covered thereby.

REQUIRED SIGNATURES – Seller shall not be bound by any agreement, whether oral or otherwise, or any other writing, irrespective of the authority under which the employee or agent of Seller has or claims to have for the purposes of acting on behalf of or binding Seller, unless signed by either the President.

CONFIDENTIALITY – Buyer acknowledges that Seller possesses certain confidential or proprietary information, including but not limited to the following: certain know- how, trade secrets, patent applications, formula books, information regarding research and inventions, customer, vendor and supplier lists, customer sales histories, customer- related data, processes, other data (including data relating to or provided by vendors or suppliers), specifications, computer programs, drawings, designs, marketing plans, bid and pricing information (including without limitation all pricing information relating to the Goods and to this Agreement) and other trade secrets collectively, ‘Confidential Information”), which may, whether intentionally or otherwise, be disclosed to Buyer. Buyer agrees that it will not under any circumstances disclose any Confidential Information to any other person or entity, or use such Confidential Information for or on behalf of itself or any third party, for any reason and whether or not for consideration, unless specifically authorized to do so by a corporate officer of Seller. Buyer acknowledges that any disclosure by Buyer of Confidential Information will cause irreparable harm for which monetary damages would not be an adequate remedy. Seller shall therefore have the right to enforce this Section by seeking and obtaining injunctive or other equitable relief in any court of competent jurisdiction, without first having to show actual damages or post any bond. Such relief shall be in addition to, and not in lieu of, any other relief available to Seller at law or pursuant to this Agreement.

TIME LIMITATION ON ACTIONS; WAIVER – (a) Any claim or action by Buyer relating to the sale of the Goods by Seller or Buyer’s use of the Goods must be commenced not later than six (6) months after Buyer knew or reasonably should have known of the existence of such a claim, but in no event later than one (1) year after tender of delivery of the Goods. If Buyer fails to commence any such action within the aforesaid period, the action shall be deemed barred and Seller shall have no liability whatsoever to Buyer. (b) No failure of Seller to require strict performance by Buyer of this Agreement shall waive, affect or diminish any right of Seller to demand strict performance of the Agreement thereafter. No wavier, alteration or modification of any of the provisions hereof shall be binding on Seller unless made in writing and agreed to by the President of Seller. Waiver by either party of any default by the other hereunder shall not be deemed a waiver by such party of any default by the other which may thereafter occur. The rights and remedies herein reserved to Seller shall be cumulative and in addition to any other rights and remedies provided by law.

SHIPPING WEIGHTS – Shipping weights are approximate as cataloged and are not guaranteed, but are sometimes shown for customer convenience. Seller will use its best efforts to furnish Goods within the limits and of the sizes published by the Seller and subject to Seller’s standard tolerances for variations. However, all specifications as to weight, size, length and diameter of the Goods described on the face hereof are approximate. Seller reserves the right to deliver the Good with immaterial deviations from specifications.

CHOICE OF LAW – This Agreement shall be deemed to have been made under, and shall be construed and interpreted in accordance with, the substantive laws of the State of Florida, without regard to any choice of law rules or principles. Buyer hereby submits to the jurisdiction of the state and federal courts for the State of Florida, County of Broward, and said courts shall have exclusive jurisdiction and venue to adjudicate the rights and obligations of the parties relating in any manner to this Agreement. Buyer hereby designates the Secretary of State of Florida as an authorized agent to accept service of process for Buyer in the State of Florida.

SEVERABILITY – If any provision of this Agreement is held by any court to be invalid or unenforceable, such provision shall be deemed to be modified or severed here from, but only to the minimum extent necessary to enable that and the remaining provisions of this Agreement to be valid and enforceable, and upon such modification or severance the other terms and conditions hereof shall remain in full force and effect.

 

NO ASSIGNMENT - Buyer may not assign any rights or obligations under this Agreement without prior written consent of an authorized corporate officer of Seller. Upon such permitted assignment, these Terms and Conditions of Sale shall binding upon the successors and assigns of Buyer.

 

Version: BH-TCS-V.0-2013 – B&H Terms & Conditions of Sale

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