BRENNER FIEDLER – SALES ORDERS TERMS AND CONDITIONS
1. Agreement and Acceptance.
The is an offer to sell, or a contract of sale for, as the case may be, 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”). Any acceptance of the delivery of the Goods, or any acceptance or confirmation of the Sales Order, express or implied, shall constitute acceptance of the terms and conditions in the body of the Sales Order and those contained in Brenner Fiedler – Sales Order Terms and Conditions – Paragraphs 1 through 23. The Sales Order constitutes the entire agreement between the parties with respect to the Goods, and supersedes all previous offers and agreements, whether oral or written, including any request for quotations, quotation, or purchase order. No addition to, or other modification of, the Sales 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 those contained in Brenner Fiedler – Sales Order Terms and Conditions – Paragraphs 1 through 23, the terms in the body of the Sales Order shall control.
2. Payment Terms.
Seller’s strict payment terms are set forth on the face of the Sales Order. Any amounts owed by Purchaser to Seller and not paid when due shall bear interest at the rate of one and one half percent (1½%) per month from the original due date until paid. Purchaser shall also be liable to Seller for Seller’s reasonable costs of collection incurred in collecting any amounts owed by Purchaser under the Sales Order, including reasonable attorneys’ fees. Customized orders may be subject to prepayments at time of order or before shipment.
3. 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.
4. 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.
5. 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.
All returns must be accompanied by a valid Return Material Authorization (RMA) issued by Seller. Seller shall have the sole discretion not to accept returns of non-defective Goods, and may impose a restocking fee of at least 25% as a condition to accepting a return of non-defective Goods. No returns shall be accepted more than 60 days after the delivery date. Any returned Goods must be in a new and unused condition and be shipped in their original containers.
7. 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.
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. Accelerated deliveries at the request of Purchaser may be subject to an additional expediting charge.
9. 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.
10. 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.
11. Limited Warranty.
Unless otherwise specified on the face of the Sales Order, Seller warrants that the Goods at time of shipment are: (a) new and unused; (b) free and clear of all liens and encumbrances; (c) in material conformance with all specifications, drawings, or descriptions furnished to Seller by Purchaser and accepted by Seller; and (d) of merchantable quality. Seller’s obligation under the warranty is limited to the replacement of the product or parts thereof which the Seller reasonably determines do not conform to these warranties. Any action for a breach of the limited warranty must be commenced within one (1) year from the date when the breach was, or should have been, discovered.
12. 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.
13. Limitation of Liability.
Seller shall not be responsible for any misuse, neglect, accident, reconfiguration, or alteration of the Goods by Purchaser or others, or improper installation or use in violation of instructions furnished by Seller. Seller’s liability for any claims or damages relating to the Goods shall be limited to the purchase price of the Goods, and in no event shall Seller be liable for any consequential, special, or incidental damages, loss, or expenses, or personal injury, directly or indirectly arising from use of Seller’s products separately or in combination with any other equipment or material.
14. Certain Precautions on Specifications and Use.
1) Suitability of Use. Brenner-Fiedler shall not be responsible for conformity with any standards, codes or regulations which apply to the combination of the Product in the Buyer’s application or use of the Product. At Buyer’s request, Brenner-Fiedler will provide applicable third party certification documents identifying ratings and limitations of use which apply to the Product. This information by itself is not sufficient for a complete determination of the suitability of the Product in combination with the end product, machine, system, or other application or use. Buyer shall be solely responsible for determining appropriateness of the particular Product with respect to Buyer’s application, product or system. Buyer shall take application responsibility in all cases but the following is a non-exhaustive list of applications for which particular attention must be given:
i) Outdoor use, uses involving potential chemical contamination or electrical interference, or conditions or uses not described in this document.
ii) Use in consumer products or any use in significant quantities.
iii) Energy control systems, combustion systems, railroad systems, aviation systems, medical equipment, amusement machines, vehicles, safety equipment, and installations subject to separate industry or government regulations.
iv) Systems, machines and equipment that could present a risk to life or property. Please know and observe all prohibitions of use applicable to this Product.
v) NEVER USE THE PRODUCT FOR AN APPLICATION INVOLVING SERIOUS RISK TO LIFE OR PROPERTY OR IN LARGE QUANTITIES WITHOUT ENSURING THAT THE SYSTEM AS A WHOLE HAS BEEN DESIGNED TO ADDRESS THE RISKS, AND THAT THE BRENNER-FIEDLER’S PRODUCT IS PROPERLY RATED AND INSTALLED FOR THE INTENDED USE WITHIN THE OVERALL EQUIPMENT OR SYSTEM.
2) 2. Programmable Products. Brenner-Fiedler shall not be responsible for the user’s programming of a programmable Product, or any consequence thereof.
3) 3. Performance Data. Data presented in Brenner-Fiedler’s website, catalogs and other materials is provided as a guide for the user in determining suitability and does not constitute a warranty. It may represent the result of Brenner-Fiedler’s test conditions, and the user must correlate it to actual application requirements. Actual performance is subject to the Brenner-Fiedler’s Warranty and Limitations of Liability.
4) 4. Change in Specifications. Product specifications and accessories may be changed at any time based on improvements and other reasons. It is our practice to change part numbers when published ratings or features are changed, or when significant construction changes are made. However, some specifications of the Product may be changed without any notice. When in doubt, special part numbers may be assigned to fix or establish key specifications for your application. Please consult with your Brenner-Fiedler’s representative at any time to confirm actual specifications of purchased Product.
5) 5. Errors and Omissions. Information presented by Brenner-Fiedler has been checked and is believed to be accurate; however, no responsibility is assumed for clerical, typographical or proofreading errors or omissions.
15. Goods Solely for Commercial Purposes.
Purchaser represents and warrants that the Goods are being purchased, and will be used by it, solely for commercial, business, or government purposes, and not for personal, family, or household purposes.
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.
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 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).
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.
19. 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.
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.
21. 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.
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.
23. 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.
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