SALES TERMS FOR
BEACON TECHNICAL SYSTEMS, LLC
- General Terms. These sales terms (“Terms”) shall govern all sales of Products and Services to Buyer by Beacon Technical Systems, LLC (“BTS, LLC”), its affiliates, subsidiaries, and/or divisions, (collectively, “BTS”), unless other terms are specified in BTS’s quotation or sales order acknowledgment or unless otherwise agreed by BTS, LLC in writing. All sales are expressly limited to these Terms and are conditional on Buyer’s assent to these Terms. Buyer’s assent to these Terms shall be deemed given upon the occurrence of any of the following: (i) Buyer’s failure to object to these Terms in writing within three (3) days from the date of its receipt of them, (ii) Buyer’s issuance of a purchase order, or (iii) Buyer’s acceptance of delivery of Products or Services. BTS expressly objects to any additional or different terms proposed by Buyer, unless expressly agreed to in writing by BTS. For the purposes of these Terms and unless stated otherwise, “Products” shall mean the products manufactured by BTS, specified on the BTS sales order acknowledgment, including without limitation any accessories, enclosed documentation and embedded software; and “Services” shall mean any BTS training, consulting, technical support and any other services specified on the BTS sales order acknowledgment. BTS may modify these terms at any time without prior notice provided that no such modification shall apply in respect of any order for products or services which has been accepted by BTS prior to the modification(s). The latest version of the Terms will be posted on BTS’s website at www.sumptest.com/termsandconditions, and Buyer should review these Terms prior to purchasing any Products or Services. No contract will be deemed to be formed until the BTS sales order acknowledgment has been sent to Buyer, and all orders are subject to BTS’s ability to obtain, on appropriate terms and within a reasonable amount of time, any export or import license or permit required by applicable law or regulation. BTS shall have the right to cancel any order at any time for failure of Buyer to agree to these Terms or for any material breach by Buyer of these Terms, including without limitation failure to pay any amounts due, violation of the then-current BTS Software License Agreement or noncompliance with the then-current BTS credit requirements.
- Prices, Taxes and Payment Terms. Prices shall be the prices in effect on the date of the BTS sales order acknowledgment, and are subject to change without notice. Each quotation or proposal is valid for sixty (60) days from its date, unless specified otherwise. Unless otherwise stated by BTS in writing, for sales to Buyers within the continental United States and for sales to Buyers outside the continental United States, prices are exclusive of any freight, packing or insurance charges and any customs, sales, use, value-added, property or similar taxes, tariffs or duties. For Services performed on a time and expense basis, charges shall include time and expenses incurred in the previous calendar month. For Services performed on a fixed-price basis, charges shall include the price of major deliverables substantially completed in the previous calendar month. For Services, additional charges may result from modifications to the desired Services or from unforeseen conditions. Payment terms for all Products and Services are net thirty (30) days from date of invoice. All payments shall be made in United States Dollars, unless specified otherwise. Buyer must meet the then-current BTS credit requirements to purchase on credit. If, in the judgment of BTS, the financial condition of Buyer at any time prior to delivery does not justify the payment and/or credit terms offered by BTS, BTS may require payment in advance or postpone or cancel any outstanding order, whereupon BTS shall be entitled to receive reasonable cancellation charges. Delays in delivery or non-conformities in any installments shall not relieve Buyer of its obligation to pay any remaining installments. BTS may, at its sole discretion, impose a late charge equal to the lesser of 1.5% per month or the highest applicable rate allowed by law on all amounts not paid when due. Any payment made by Buyer shall be applied to amounts due before being applied to current orders, at BTS’s sole discretion. Notwithstanding the foregoing, Buyer’s failure to pay amounts due shall be deemed a material breach of these Terms, and any acceptance by BTS of late payments shall not be deemed a waiver of such breach. To the extent allowed by law, BTS shall be entitled to recover all costs incurred in collecting amounts due from Buyer, including without limitation legal fees and other costs (including without limitation disbursements).
- Delivery, Documentation and Disclosure of Information. Delivery dates are approximate, based upon prompt receipt of all necessary information from Buyer and do not constitute a contractual obligation. BTS shall pack and ship Products according to its standard procedure, and all shipments shall be sent to Buyer using the BTS standard freight forwarder or carrier. Buyer shall pay for any increased costs due to special packing, shipment (including freight forwarders or carriers required by Buyer) or insurance requests, as well as any detention charges. Unless otherwise stated in the BTS sales order acknowledgment, the shipping terms are as stated herein. For Products shipped to addresses within the continental United States, title and risk of loss or damage shall pass to Buyer upon delivery to Buyer’s place of business. Buyer must unpack and examine Products immediately and, if damage is discovered, (i) maintain Products at the place of examination, (ii) retain the shipping container and packing material, (iii) notify the carrier of any apparent damage in writing on carrier’s delivery receipt and request carrier to make an inspection, (iv) notify BTS within three (3) days of delivery and (v) send BTS a copy of carrier’s inspection report. For Products shipped to addresses outside the continental United States, title and risk of loss or damage shall pass to Buyer at the BTS factory upon delivery to the freight forwarder or carrier, and Buyer shall have a reasonable time after receipt of Products to inspect and reject or accept Products. In any event, acceptance shall be deemed to have occurred no later than fifteen (15) days after shipment. Buyer may not return any Product without prior written consent of BTS. When applicable, BTS shall provide Buyer with one (1) copy of instructions for each Product. Buyer may not reproduce such instructions. Buyer may order additional copies from BTS. All instructions and related documentation shall be in English. Although BTS or its representatives may from time to time provide translations of such instructions and documentation as a courtesy, the English version shall govern in the event of, and BTS shall not be liable for, any discrepancies. The English versions are available at sumptest.com. Any information, suggestions or ideas transmitted by Buyer to BTS in connection with performance hereunder shall not be regarded as proprietary or confidential, unless identified in writing by Buyer and acknowledged in writing by SEL.
- Intellectual Property. Buyer shall not challenge the validity of any BTS intellectual property, including without limitation any trademarks, service marks, trade dress, patents, copyrights, trade secrets or licenses. Buyer acknowledges that BTS intellectual property is the sole property of BTS. By sale of Products or Services to Buyer, BTS does not transfer any BTS intellectual property rights (including without limitation rights to designs or other work product). Buyer shall not remove or alter any trademarks, service marks or trade dress that identify BTS, nor use any trademarks, service marks, trade dress or any other intellectual property that, in the sole discretion of BTS, is confusingly similar to those of BTS. Any software (including firmware) included with Products is owned by BTS (or its licensors) and is licensed, not sold, to Buyer. Buyer may use such software only with Products and only as intended by BTS. All software shall be provided subject to the then-current BTS End User Software License Agreement which is available at sumptest.com.
- Product Warranty and Services Commitment. BTS warrants that for a period of three years from the date of purchase of the Beacon ProAct™ Device by the first purchaser of the Device, the ProAct Device will be free of defects in materials and workmanship under normal use and service. This Limited Warranty is conditioned upon proper storage and is void in its entirety upon any improper or unreasonable use or maintenance, accident, power surges, tampering or modification. Within the warranty period, BTS will, at it’s sole option, repair or replace any defective parts, free of charge except for shipping and handling costs. In order to obtain this service Buyer must return the product in its original packaging and carton, along with proof of purchase from an authorized seller, directly to BTS. Contact us at 1-(800) 590-3954 or email@example.com for a return authorization number and shipping instructions. These instructions will include directions for properly packing the product. If you need new packaging or a new carton, either can be provided at cost upon request. Unfortunately, returns not bearing an authorization number will be refused. Any replacement and/or repaired device will be warranted for the remainder of the original warranty or ninety (90) days from the date of shipment from BTS, whichever is longer. If BTS is unable or unwilling to repair or replace, BTS will negotiate an equitable resolution such as a prorated refund or credit. This Warranty does not cover damages of any kind including to property or for lost time or use or for the cost of having someone remove or re-install the ProAct Device, or for the costs of travel, and this Warranty shall not apply if the damages were found to be caused by something other than defects in materials and workmanship including but not limited to, if the ProAct Device: was operated/stored in abnormal use or maintenance conditions; is repaired, modified, or altered without BTS’s express written pre-authorization of such repair, modification or alteration; was subject to abuse, neglect, electrical fault, improper handling, accident or acts of nature; was not installed by a licensed plumber or similar professional contractor; or was installed improperly.
BTS’S SOLE RESPONSIBILITY SHALL BE TO REPAIR OR REPLACE THE PROACT DEVICE WITHIN THE TERMS STATED ABOVE. THERE ARE NO EXPRESS WARRANTIES EXCEPT AS LISTED UNDER THIS “LIMITED WARRANTY”. BTS IS NOT LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND, INCLUDING BUT NOT LIMITED, TO ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING DIRECTLY OR INDIRECTLY FROM THE USE OR FAILURE OF THIS PRODUCT, OR ARISING OUT OF ANY BREACH OF THIS LIMITED WARRANTY OR OF ANY WARRANTY, EXPRESS OR IMPLIED.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED (INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES ARISING FROM COURSE OF PERFORMANCE OR DEALING OR USAGE OF TRADE), AND THE EXPRESS LIMITED WARRANTY PROVIDED IS LIMITED TO THE THREE-YEAR PERIOD OF THE LIMITED WARRANTY.
- Limitation of Liability, Indemnity and Insurance. In no event, whether as a result of breach of contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, shall BTS be liable to Buyer or Buyer’s insurers for any loss or damage for an amount exceeding the price of the specific Product or Service that gave rise to the claim, and any liability shall terminate upon the expiration of the warranty period. No claim, regardless of form, arising from these Terms may be brought by Buyer more than one (1) year from the date such claim accrues. In no event, whether as a result of breach of contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, shall BTS be liable for any special, consequential, incidental, liquidated or punitive damages, including without limitation any loss of profit or revenues, loss of use of Products or associated equipment, damage to associated equipment, cost of capital, cost of substitute products, facilities, services or replacement power, downtime costs or claims of Buyer’s customers for such damages. If BTS or its subcontractors or suppliers provide Buyer with advice or other assistance, including input of customer-provided or customer-requested settings and advice related thereto, concerning any Product or any system or equipment in which any such Product may be installed, the provision of such advice or assistance shall not subject BTS to any liability, whether as a result of breach of contract, indemnity, warranty, tort (including negligence), strict liability or otherwise. BTS shall not be liable for any claims or losses resulting from any unauthorized access to Products. Buyer confirms that it has read the manuals and instructions for use of Products (or that it will do so) and shall not install or operate Products unless Buyer is competent to do so. Buyer shall indemnify, defend and hold harmless BTS and all related parties from and against any claims, demands, causes of action, losses, costs and expenses, including without limitation legal fees and other costs, arising directly or indirectly from, as a result of or in connection with the acts or omissions of Buyer, its officers, employees, agents or representatives, including without limitation (i) Buyer’s modification or integration of any Product, (ii) Buyer’s specifications, (iii) Buyer’s relay settings, which may or may not be based on relay setting examples or guides from BTS, (iv) any changes made by Buyer or others related to design documents produced by BTS, (v) any unauthorized use or reuse of the designs, drawings, plans and specifications furnished by BTS, (vi) Buyer’s failure to fully utilize the password protection available in any Product (including without limitation Buyer’s failure to use passwords or to change default passwords to unique Buyer passwords) or (vii) any breach of these Terms by Buyer. Buyer shall maintain commercially reasonable insurance (including waiver of subrogation) against liability and property damage, including without limitation all standard commercial, environmental and, for any Products used in connection with any nuclear facility or activity, nuclear incident insurance.
- Governing Law and Dispute Resolution. The laws of the State of Washington, USA, excluding conflict of laws principles, shall govern these Terms. The parties reject any applicability of the United Nations Convention on Contracts for the International Sale of Goods. Any controversy or claim arising out of or relating to these Terms, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the arbitration award may be entered in any court of competent jurisdiction. Arbitration shall be held in Chicago, Illinois, or another location agreed upon by the parties, and shall be conducted in English. The prevailing party to any dispute shall be entitled to recover legal fees and other costs (including without limitation arbitration fees, disbursements, and collection costs).
8. Miscellaneous. These Terms, including the BTS Software License Agreement and BTS sales order acknowledgement, constitute the entire agreement between BTS and Buyer, and supersede any prior or contemporaneous verbal or written agreements, negotiations, commitments, representations or correspondence between the parties, including without limitation any terms on any purchase order form. BTS rejects any representation, express or implied warranty, course of performance or dealing, trade usage or any different or additional terms not set forth herein. BTS reserves the right to modify or revoke any quote or order to comply with applicable laws and market conditions. Any notice pursuant to these Terms shall be deemed given when sent by registered mail, certified mail (return receipt requested), overnight delivery, or fax (receipt confirmed) to an authorized officer at the address or fax number listed on the BTS sales order acknowledgment or, if no such address or fax number is provided, at the registered headquarters of the other party. All rights and duties hereunder shall be for the sole and exclusive benefit of Buyer and BTS, and not for the benefit of any other party. BTS may perform its obligations hereunder personally, or through one or more of its affiliates or subsidiaries, although BTS shall nonetheless be solely responsible for the performance. No failure or delay by either party in exercising any right or remedy, or insisting upon strict compliance by the other party with any obligation in these Terms, shall constitute a waiver of any right thereafter to demand exact compliance with these Terms. The invalidity, in whole or part, of any provision in these Terms shall not affect the remainder of such provision or any other provision and, where possible, shall be replaced by a valid provision that effects as close as possible the intent of the invalid provision. Neither party shall be liable for failure to perform or delay in performance of any obligation under these Terms (except payment of amounts already due and owing) where such failure or delay results from any event beyond its reasonable control.