Brenner-Fiedler - Terms and Conditions

1. Agreement and Acceptance: This is an offer to procure and sell the goods described in the body of the Sales Order Acknowledgement (the “Goods”), for the price indicated in the body of the Sales Order Acknowledgement, between Brenner-Fiedler (“Seller”) and the purchaser identified in the body of the Sales Order (“Purchaser”) and/or, if applicable, the Supplier (“Supplier”) as identified in Brenner-Fiedler’s Purchase Order (“Purchase Order”). Any acceptance of the delivery of the Goods, or any acceptance or confirmation of the Sales Order and/or Purchase Order, expressed or implied, shall constitute acceptance of the terms and conditions in the body of the Sales Order and/or Purchase Order and those contained in Brenner Fiedler–Terms and Conditions, Paragraphs 1 through 27. The Sales Order and/or Purchase Order constitutes the entire agreement between the parties with respect to the Goods, and supersedes all previous offers and agreements, whether oral or written. No addition to, or other modification of, the Sales Order and/or Purchase Order shall be binding on Seller unless it is in writing and executed by a duly authorized representative of Seller. In the event of a conflict between any of the terms contained in the Sales Order and/or Purchase Order and those contained in Brenner Fiedler–Terms and Conditions, Paragraphs 1 through 27, the terms in the body of the Sales Order shall control.

2. Payment Terms: All invoices shall be paid net thirty (30) days from the date of invoice, unless otherwise specified on the order acknowledgement. If Brenner-Fiedler retains a collection agency or legal counsel or incurs any out of pocket expenses to collect overdue payments, all such collection costs, including reasonable attorneys’ fees, shall be payable by Purchaser.

3. Shipping: Brenner-Fiedler ships F.O.B. from our warehouse, with the exception of factory drop shipments, and via the carrier of our choice. All shipping charges will be prepaid and added to the invoice.

4. Excusable Delays: Brenner-Fiedler shall be excused from any delay or failure to provide goods under this Agreement due, in whole or in part, directly or indirectly, to labor difficulties, fire, casualty or accidents, acts of God, civil disorder, transportation difficulties, shortage of fuel, labor or materials, governmental acts or restrictions, or any other cause beyond Brenner-Fiedler’s reasonable control.

5. Damage/Shortage Claims: Purchaser should inspect all orders/items for shipping damage or shortage. If damage has occurred, please note the damage on the delivery receipt and notify our customer service department immediately.

6. Open Order Pricing: If Purchaser is buying the Goods pursuant to an open order with Seller, Purchaser understands and agrees that the price of the Goods is subject to change upon written notice of seven (7) days.

7. Taxes, Duties and Tariffs: Unless otherwise specified on the face of the Sales Order, Purchaser shall bear the cost of all applicable federal, state, and local taxes, duties and tariffs incurred in connection with the sale of the Goods.

8. Inspection and Approval: The Goods shall be deemed accepted by Purchaser upon physical receipt of Goods unless Purchaser provides Seller with written notice of its rejection of all or part of the Goods, such notice specifying the defect underlying the rejection, within ten (10) days after initial receipt of the Goods from the same lot.

9. Returns: All returns require prior authorization. Purchaser must contact customer service for a return authorization request form. Returns received without an RGA number may be returned to purchaser. Cylinders & special order items are non-returnable. All returns must be received in-house within 45 days in new condition and original packaging. Returns are subject to inspection and may be subject to a restocking fee and shipping fees.

10. Order Fulfillment: Should the Sales Order represent a partial fulfillment of a larger order, Purchaser must accept delivery of the remaining Goods within one (1) year after the initial receipt of goods by Seller unless otherwise specified on the face of the Sales Order.

11. Deliveries: Unless otherwise specified on the face of the Sales Order, deliveries may be made by Seller, in whole or in part, before the scheduled delivery date without penalty.

12. Supplier Requirements: This section refers to suppliers (“Supplier”) from which Brenner-Fielder purchases goods. The Supplier agrees to maintain a quality management system such as ISO 9001-2000, or a basic inspection system, or to have in place the required procedures or methods to ensure that delivered product and/or services meet purchase order requirements. Brenner Fiedler reserves the right to refuse and/or return non-conforming product.

13. Risk of Loss: Unless otherwise specified on the face of the Sales Order, all deliveries are F.O.B Seller or authorized shipper of Seller. Risk of damage to or loss of, the Goods shall pass to Purchaser upon tender to shipment carrier.

14. Security Interest: Until the purchase price and all other applicable costs and expenses are paid in full, Seller reserves a purchase money security interest in the Goods and the proceeds there from, and Seller thereby possesses the rights of a secured party under the Uniform Commercial Code. Upon Seller’s request, Purchaser agrees to execute all necessary financing statements and other documents evidencing the security interest with the appropriate state and local authorities. Seller is entitled to reasonable access to Purchaser’s place of business as necessary to exercise its remedies as a secured party.

15. Limited Warranty: Brenner-Fiedler warrants products, when properly installed and operated under normal conditions of use, to be free from defects in material and workmanship for a period of twelve (12) months from the date of purchase.

16. Selection/Design of Goods: The selection of the Goods ordered, or design of any custom Goods, shall be Purchaser’s sole and ultimate responsibility, and Seller shall have no liability whatsoever for any design defects of Goods selected by Purchaser or of custom Goods, or in the event the Goods ordered are unsuitable for Purchaser’s intended use. Any advice or assistance provided by Seller to Purchaser in connection with Purchaser’s selection or design of the Goods is at Purchaser’s risk, and Seller makes no representation or warranty whatsoever in connection with such advice or assistance. Purchaser understands that Brenner-Fiedler is a distributor who purchases product from various manufacturers (Suppliers) on behalf of the Purchaser. Purchaser is responsible for reviewing manufacturers’ catalogs for product specifications. Brenner-Fiedler has no control over the manufacturing process of Goods purchased from Supplier on behalf of Purchaser.

17.Limitation of Liability:

A. Brenner-Fiedler’s obligation under this Agreement is to provide products in a timely manner in accordance with the terms of this Agreement. Purchaser shall provide written notice to Brenner-Fiedler within ten (10) days of receipt of product of any complaint whatsoever Purchaser may have concerning such product. Except as expressly stated herein, Brenner-Fiedler makes no warranty, expressed or implied regarding the product as described on the order acknowledgement, and shall have no liability for loss of anticipated profits or consequential or special damages. Customer waives any and all warranties, express or implied, not expressly contained in this agreement, including the implied warranties or merchantability and fitness for a particular purpose.

B. Brenner-Fiedler shall not be liable for any reason, whether under this agreement or otherwise, for any cost, expense, loss or damage suffered by Customer or any other person, including, without limitation, cost, expense, loss or damage: (i) such as personal injury and property damage; (ii) such as any claim or demand against Customer by any third party: (iii) such as consequential, incidental or special damages (including, without limitation, loss of income, goodwill or prospective profits). Customer understands and agrees that protection for the above-referenced costs, expenses, losses and damages is Purchaser’s sole responsibility and that it is Purchaser’s responsibility to obtain and maintain insurance coverage for such costs, expenses, losses and damages.

C. Brenner-Fiedler’s liability shall not exceed, under any circumstances, the amounts paid to Brenner-Fiedler by Purchaser under this Agreement (“Liability Limitation”). Purchaser understands and agrees that the limitations on liability set forth in this Agreement including, without limitation, the waiver of subrogation and the Liability Limitation, are being relied on by Brenner-Fiedler in determining the costs of the products provided by Brenner-Fiedler to Purchaser pursuant to this Agreement. In addition to the foregoing, Purchaser agrees that in the event Brenner-Fiedler is found liable for loss, damage or injury in any respect (other than as a result of a breach of this Agreement), including, without limitation, loss, damage or injury resulting from Brenner-Fiedler’s negligence, Brenner-Fiedler’s maximum liability shall be limited to the lesser of the Liability Limitations or the amount of Brenner-Fiedler’s insurance coverage.

D. Purchaser releases and waives all right of recovery against Brenner-Fiedler by way of subrogation.

18. Indemnification: Purchaser shall indemnify, hold harmless, and defend Seller, and its directors, officers, employees, agents, and affiliates from and against any and all costs, claims, suits, liabilities, damages, and expenses of any kind whatsoever (including, but not limited to, court costs and reasonable attorneys’ fees), incurred or suffered as a result of Purchaser’s late payment or non-payment (including the costs of collection), misuse or alteration of the Goods, or design of Goods selected by Purchaser or of custom Goods.

19. Cancellation: Seller may cancel any outstanding portion of the Sales Order without penalty in the event Purchaser fails to comply with any of the terms and conditions of the Sales Order. Seller may also cancel any outstanding portion of the Sales Order in the event Purchaser becomes insolvent, is subject to a bankruptcy proceeding, makes an assignment for the benefit of creditors, or ceases or suspends its normal business operations. Any cancellation by Seller shall be without prejudice to any other rights which Seller may have against Purchaser under the Sales Order or otherwise. Purchaser may not cancel the Sales Order or any portion thereof without written approval from the Seller. Purchaser will be responsible for any and all costs incurred by Seller as a result of any cancellation (including, but not limited to the cost of Goods purchased or produced to fulfill the Sales Order which cannot be immediately sold for the same or higher price or returned to Seller’s supplier for full refund).

20. Cross-Defaults: Any material breach by Purchaser under any other order, purchase order, quotation or other agreement existing between Seller and Purchaser during the pendency of the Sales Order (including, but not limited to, the non-payment of any amounts owed to Seller by Purchaser), shall constitute a breach of the Sales Order by Purchaser and give Seller the right to terminate the Sales Order and demand immediate payment of any outstanding amounts owed to it in addition to any other right or remedy Seller might have at law or in equity. Similarly, any material breach by Purchaser under the Sales Order (including, but not limited to, the non-payment of any amounts owed to Seller by Purchaser), shall constitute a breach of any other Order, purchase order, quotation or other agreement existing between Seller and Purchaser during the pendency of the Sales Order and give Seller the right to terminate such other agreement and demand immediate payment of any outstanding amounts owed to it in addition to any other right or remedy Seller might have at law or in equity.

21. Force Majeure: Seller shall not be responsible for delays in producing, procuring, or delivering the Goods caused by: acts of God, fires, war, terrorism, riot or insurrection, strikes or differences with or among workmen, government interference, inability to secure transportation, weather conditions, timing of deliveries from Seller’s vendors or suppliers, or other contingencies beyond Seller’s control. Should any of the foregoing conditions continue for a period of thirty (30) days after its first occurrence, Seller may cancel the Sales Order without incurring any liability to Purchaser.

22. Assignment: Purchaser shall not assign any of its rights, or delegate any of its duties, under the Sales Order without the prior written consent of Seller, and any attempt to do so shall be void.

23. Remedies and Waiver: All rights and remedies of Seller under the Sales Order shall be cumulative and in addition to any other rights and remedies available to Seller under any other valid agreement with Purchaser or any applicable law. No waiver of any breach of the provisions of the Sales Order shall be deemed a waiver of any other provision of the Sales Order or of any other Sales Order or further breach of the Sales Order or of any other Sales Order.

24. Severability: If any provision of the Sales Order shall be found invalid, illegal, or unenforceable to any extent, the remainder of the Sales Order and its application shall not be affected, and shall remain enforceable to the fullest extent permitted by law.

25. Governing Law and Venue: The Sales Order shall be construed in accordance with, and governed by, the internal laws of the State of California, without regard to that state’s choice of law principles. Any action brought in connection with the Sales Order or the Goods shall be brought only in the federal or state courts located in Los Angeles County (California). Purchaser irrevocably submits to the personal jurisdiction of such courts, and waives any objection it may have concerning the venue or convenience of such forums.

26. Privacy Policy: Your privacy and security is extremely important to us and your satisfaction is our prime concern. All transactions generated on Brenner-Fiedler.com are completed with the secured server of Thawte.com. Your credit card details are guarded by secured technology so you can order with confidence. In accordance with California Law, we do not store your credit card information on our server and your information will not be sold.

27. Miscellaneous: These Terms and Conditions constitute the entire agreement between the parties and are collectively referred to as the “Agreement”, and supersede any previous agreement, understanding or order between then parties. Should the terms and conditions of any purchase order of Purchaser issued in connection with this Agreement conflict with the terms contained in this Agreement or add any new terms to this Agreement, such new terms or different terms shall be of no force or effect. The terms of this Agreement shall prevail over any terms in Purchaser’s purchase order and different or new terms shall only be binding on Brenner-Fiedler if expressly accepted in writing by Brenner-Fiedler. No modifications or waiver of the terms of this Agreement shall be binding unless made in writing and signed by both parties. 

UF 7.4.2-1, Rev. C, 7/27/10 - Printed copies are for reference only.