Bramidan US INC. Terms & Conditions of Sales
1. Offer & Agreement
No offer or contract shall be binding upon Bramidan US Inc. (together with its affiliates, the “Seller”) except by issuance of Seller’s printed acknowledgment form. Acceptance by buyer (together with its successors and permitted assigns, the “Buyer”) of the products (the “Products”) or payment for same shall constitute unequivocal acceptance of the terms and conditions contained herein (the “Agreement”). None of any past practice, industry standards, course-of-dealing or usage of trade shall constitute a modification of any term or condition contained herein, nor shall same add any term not contained herein. No additional or different terms or conditions will be binding upon Seller unless specifically agreed to in a writing signed by an authorized representative of Seller. Failure of Seller to object to conditions contained in any other writing or other communication from Buyer shall not be construed as a waiver of this Agreement nor acceptance of any such other provisions. This Agreement also serves as notice of Seller’s objection to and express rejection of any terms and conditions of purchase included in Buyer’s order or other writing that are different from or additional to this Agreement. Article headings herein are for convenience only and are not to be considered in interpreting any of the provisions herein.
2. Products
Seller reserves the right to revise and discontinue Products at any time and without prior notice. Seller will ship Products that have the same or similar functionality and performance of Products ordered, but changes, including, but not limited to, changes with regard to measurements and weight, due to technical requirements between what is shipped and what is described in specification sheets, catalogs, or the like, are possible.
3. Prices and Payment
3.1. If Products are shipped from Seller’s principal place of business or from any other location within or outside the U.S.A., the quoted price is Ex Works (EXW) (INCOTERMS in force at the time of sale) – Seller’s principal place of business or the location of shipment, as applicable, unless otherwise agreed upon in writing.
3.2. The quoted price of Products does not include duty, tariffs, taxes, freight costs, or similar charges, which shall be borne by Buyer, unless otherwise agreed upon in writing. All prices are subject to change prior to Seller’s issuance of an acknowledgment. For all prices and Products, Seller reserves the right to make adjustments due to changing market conditions, product discontinuation or other extenuating circumstances.
3.3. Buyer shall be responsible for any insurance and shipping charges of domestic shipments of Products and Buyer shall reimburse Seller for any such charges paid by Seller, unless otherwise agreed upon in writing.
3.4. Unless otherwise specified on Seller’s acknowledgment, the terms of payment of the total invoice price for Products ordered hereunder shall be one third at the time of Seller’s acknowledgment and one third when Seller notifies Buyer that the Product is ready for delivery. Final payment shall be when the Product is delivered to a common carrier per Article VI.1 below or as otherwise stated in Seller’s acknowledgment.
3.5. Overdue amounts shall bear a delinquency charge of interest at the lower of (a) eight percent (8%) per annum; or (b) the maximum rate permitted by applicable law.
3.6. Buyer shall have no right of set-off with alleged counter-claims. Any assignment of Buyer’s counter-claims to a third party without Seller’s prior written consent shall be void.
3.7. Buyer agrees to reimburse Seller for any costs and expenses (including reasonable attorneys’ fees or costs of collection agencies) in connection with the collection of any amounts owed to Seller under this Agreement.
4. Taxes & Other Charges
Any tax, assessment, duty, custom or other fee of any nature imposed upon the Products, their sale, transportation, delivery, use or consumption imposed by any governmental authority, domestic or foreign, on or measured by the transaction between Seller and Buyer shall be paid by Buyer in addition to the price quoted or invoiced. In the event that Seller is required to pay any such tax, duty, fee or charge, Buyer shall reimburse Seller therefore unless otherwise agreed upon in writing.
5. Suspension & Cancellation
If Buyer shall omit delivery instructions or shall fail to accept Delivery, as required by this Agreement, or shall fail to make any payment when it becomes due or shall commit any other breach of contract, or if Buyer shall enter into any composition or arrangement with its creditors or if any distress or execution is levied upon any goods or property of Buyer, or if Buyer shall commit any act of bankruptcy or, if a corporation, a receiver shall be appointed of the whole or any part of its undertaking or assets or if Buyer shall pass a resolution for winding up or if a court shall make an order to that effect or if Buyer shall have a receiving order made against it, then, at Seller’s sole option and discretion, Seller may defer or cancel any further deliveries or services and treat this Agreement or any other agreement between Seller and Buyer as terminated, but such termination shall be without prejudice to Seller’s right to any unpaid price for Products delivered or cost of work done under this Agreement and to damages for loss suffered in consequence of such termination.
6. Delivery and Risk of Loss and Governmental Licenses
6.1. Delivery of Products to a common carrier at Seller’s principal place of business or at any other loading point, if so agreed to by the parties in writing, shall constitute delivery to Buyer (“Delivery”), and regardless of shipping terms or freight payment, all risk of loss or damage in transit shall upon Delivery, shift to Buyer. If Buyer is responsible for any shipment delay, Seller’s written notification to Buyer that Products ordered hereunder are ready for shipping shall constitute Delivery to Buyer, and all further risk of loss or damage as well as all costs for handling, transportation and storage shall be borne by Buyer.
6.2. Seller shall not be liable for any damages as a result of any delay or failure to deliver due to any cause beyond Seller’s reasonable control, including without limitation, any act of God, act of Buyer, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, terrorism, riot, delay in transportation or inability to obtain necessary labor, materials or manufacturing facilities or delays in deliveries by sub-contractors or suppliers by any such circumstance as referred to above. Seller reserves the right from time to time to substitute a Product with a product that has the same function as such Product, or to delete a Product. Further, unless expressly agreed in writing by Buyer, the estimated date of delivery shall never be regarded as a deadline.
6.3. It is Buyer’s sole responsibility to pay for and to obtain any governmental or other licenses, certificates or documentation as may be required.
7. Storage
If Products are not shipped within thirty (30) days after notification to the Buyer that they are ready for shipping, for any reason beyond Seller’s reasonable control, including the Buyer’s failure to give shipping instructions, Seller may store such Products at the Buyer’s sole risk in a warehouse or other storage facility or upon Seller’s premises and the Buyer shall pay all handling, transportation and storage costs at the prevailing commercial rates upon submission of invoices therefore.
8. Limited Warranties
8.1. Seller warrants that Products produced by Seller shall be free from defects in material and workmanship for a period of two (2) years from the date of Delivery. Further, Seller provides a warranty for labor expenses to repair any faults proven to be the result of defective materials or workmanship for a period of one (1) year from the date of Delivery. Finally, Seller provides a warranty for labor expenses to repair any structural faults proven to be the result of defective materials or workmanship for a period of three (3) year from the date of Delivery.
8.2. Seller’s obligations under the aforesaid warranties shall be discounting, repairing or replacing Products, which if properly used and maintained, prove defective in material or workmanship. Further, such discount, repair or replacement shall be Seller’s sole obligation and Buyer’s sole remedy hereunder and shall be conditioned upon (a) Buyer’s inspection of Products within fourteen (14) days of Delivery to Buyer or, as applicable, upon discovery of a latent defect, (b) Seller’s receipt of written notice of any alleged defect within ten (10) days after such inspection or discovery, and (c) at Seller’s option, return of such defective Products. Any Product repaired or replaced pursuant to this warranty will be warranted for the remainder of the original warranty period. Upon Seller’s request, Buyer shall promptly provide samples and other evidence of, and shall allow Seller’s representatives access to the alleged defective Products. Claiming an alleged defect does not relieve Buyer of any of its payment obligation to Seller. Buyer shall not return any alleged defective Products without Seller’s prior written consent. Buyer agrees to reimburse Seller for all costs and expenses associated with any return of Products unauthorized by Seller. Receipt or inspection of returned Products by Seller shall not be deemed admission of any alleged defect.
8.3. Seller’s obligations under Section 1. of this Article VIII shall not apply to any part of Products sold hereunder, which (a) are not used in accordance with its instructions or if it is used for a purpose not indicated on the labeling; (b) are consumed by normal wear and tear; (c) are disposable goods and have a normal life time inherently shorter than the herein stated warranty period; (d) have been damaged due to negligent or faulty use, alteration, maintenance, storage or handling by Buyer and/or third parties; or (e) result from failure to use approved components for maintenance and replacement parts.
8.4. Any suggestions by Seller or Seller’s agents regarding use, application or suitability of Products shall not be construed as an express warranty unless confirmed to be such in writing by Seller.
8.5. THE WARRANTY EXPRESSED HEREIN SHALL BE IN LIEU OF ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WHICH ARE EXPRESSLY DISCLAIMED, AND IS IN LIEU OF ANY AND ALL OTHER OBLIGATIONS OR LIABILITY ON SELLER’S PART.
8.6. Any products distributed, but not manufactured, by Seller are not warranted by Seller and Buyer must instead rely on the representations and warranties, if any, provided directly to Buyer by the manufacturer of such product.
8.7. Any Products which by agreement of the parties are of less than Seller’s standard quality are sold “as is” or per any written terms provided by Seller to Buyer regarding such Products.
9. Warranty Claims, Inspection and Waiver of Defects
Written notice of any alleged defect must be presented to Seller within ten (10) days after its discovery, and Seller must be allowed to inspect Products while they are in the alleged defective condition. Use of allegedly defective Products must be suspended until written clearance is issued by Seller for continued use.
10. Limitation of Liability
10.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT OR ELSEWHERE TO THE CONTRARY: (A) SELLER’S MAXIMUM LIABILITY HEREUNDER AT ANY TIME FOR ANY CAUSE WHATSOEVER SHALL NOT EXCEED THE PRICE PAID FOR THE PRODUCT(S) AT ISSUE; AND (B) SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE, INCLUDING LOSS OF REVENUE OR PROFIT, OF ANY KIND OR NATURE, ARISING AT ANY TIME, FROM ANY CAUSE WHATSOEVER RESULTING FROM THE USE OR OPERATION OF THE PRODUCTS OR ANY BREACH OF THIS LIMITED WARRANTY.
10.2. Seller’s total liability for any claim or action shall not exceed the purchase price of the Products out of which such claim or action arose.
10.3. If applicable, Buyer agrees to cause its customers and anybody in the chain of manufacturing supply and distribution including the end customer to be bound by limitations of liability substantially equal to those contained in this Agreement.
10.4. This Article X shall survive the termination or expiration of this Agreement.
11. Security Interest
Buyer hereby grants to Seller a security interest in Products sold hereunder together with the proceeds therefrom to secure payment of the purchase price of such Products and agrees, and appoints Seller its agent, to take all such action and to execute and file all such documents and instruments (including, but not limited to, UCC-1 financing statements) as may be necessary or reasonably requested by Seller to perfect and continue Seller’s security interest hereunder.
12. Proprietary Information/Confidentiality
12.1. All specifications, and other information furnished by Seller are proprietary to Seller and confidential. Such information has been developed at substantial expense and contains trade secrets that are the exclusive property of Seller. Buyer may not reproduce or distribute such information except to such of Buyer’s employees who are required to have such information in order to perform their duties and agree, in writing, to keep such information confidential. All such information supplied by Seller except for information that (a) was generally available to the Buyer from public or published sources, provided publication did not take place in violation of this Agreement or through fault or omission of the Buyer, (b) was lawfully obtained from a source under no obligation of confidentiality, directly or indirectly, to either the Buyer or the Seller, or (c) was disclosed to the general public with the written approval of the Seller shall be received in confidence, and Buyer shall exercise due diligence and reasonable care to hold such information in confidence.
12.2. This Article XII shall survive the termination or expiration of this Agreement.
13. Insurance
13.1. Seller is entitled to insure Products sold hereunder against damage or loss during (a) transportation; and (b) the time shipping is delayed for reasons beyond the reasonable control of the Seller, at the expense of Buyer, unless the parties have agreed otherwise. Seller, however, is not obligated to obtain insurance.
13.2. Until final payment is made Buyer shall insure such Products at its expense for the benefit of Seller against damages and loss including, but not limited to, fire and flood, and shall give written proof thereof to Seller.
14. Patents, Copyrights & Trademarks
14.1. Seller assumes no liability as to any patent or copyright infringement by virtue of the use of Products in combination with other goods or services, or the use of Products manufactured to Buyer’s specifications.
14.2. Buyer shall not use Seller’s trademarks without Seller’s prior written consent.
15. Indemnity
15.1. Buyer agrees to indemnify, defend and hold harmless Seller, its officers, directors, employees, agents and insurers of each of them, from and against any and all third party claims, demands, actions, damages, expenses, costs, claims, judgments and liabilities (including, without limitation, interest, penalties and reasonable attorneys’ fees and investigative costs) incurred by Seller, arising from, in connection with or as a consequence of (a) any negligent, or wrongful act or omission by Buyer; (b) Buyer’s transfer, use or sale of any Product, except to the extent that such suit or demand arises out of the failure of such Product to meet Seller’s express warranties; and/or (c) Buyer’s possession, operation, maintenance, delivery or return of Product. Such protection shall include, without limitation, claims for personal injury or death or property damage arising out of any act or omission of Buyer or its customers.
15.2. This Article XV shall survive the termination or expiration of this Agreement.
16. Remedies for Breach
Buyer understands and agrees that the Seller will not have adequate remedy at law for the material breach or threatened breach by Buyer, or its, agents, employees, representatives or subcontractors, of any one or more of the covenants set forth in Articles XII and XIV Section 2 of this Agreement. Buyer further agrees that in the event of any such material breach or threatened breach, the Seller may, in addition to (but not in substitution for) the other remedies which may be available to it either at law or in equity, file suit in the applicable court or courts in equity to enjoin the Buyer from the breach of or threatened breach of said covenants.
17. Force Majeure
17.1. Neither party shall be held responsible for any loss, damage, delay or lack of delivery arising from fire; strikes, lockouts, injunction or other labor troubles; governmental intervention including prohibition or extraordinary taxation upon import or export; war; riots; acts of terrorism; explosion; weather; flood; acts of God or nature; inability to obtain on terms acceptable to Seller or a shortage of, fuel, power, raw materials, labor, containers or transportation; accident; breakage of machinery or other apparatus; disruption of normal supplier channels of distribution; or any other act or force beyond the affected party’s reasonable control.
17.2. Buyer may cancel, without liability, deliveries suspended for at least thirty (30) days by Seller for reasons stated in the previous section, but this Agreement shall otherwise remain in effect.
17.3. Seller reserves the right to allocate and fairly apportion Products among its internal and external customers during force majeure events in any manner Seller, in its sole discretion, deems appropriate.
17.4. Seller shall have no obligation to acquire by purchase or otherwise any Products that Seller is unable to supply to Buyer due to force majeure events.
18. Severability
If at any time any one or more of the provisions of this Agreement become invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions of this Agreement shall not be in any way impaired.
19. Arbitration
Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by binding arbitration in Chicago, Illinois, before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. The arbitrator may, in the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party. The arbitrator’s decision shall be reduced to writing. Further, the award by the arbitrator shall be final and binding on the parties, and judgment upon the award rendered may be entered in any court having jurisdiction thereof.
20. Governing Law
THIS AGREEMENT AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, EXCLUSIVE OF CONFLICT OR CHOICE OF LAW RULES. THE PARTIES ACKNOWLEDGE THAT THIS AGREEMENT EVIDENCES A TRANSACTION INVOLVING INTERSTATE COMMERCE. NOTWITHSTANDING THE PROVISION IN THE PRECEDING SENTENCE WITH RESPECT TO APPLICABLE SUBSTANTIVE LAW, ANY ARBITRATION CONDUCTED PURSUANT TO THE TERMS OF THIS AGREEMENT SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT (9 U.S.C., SECS. 1-16).
21. Complete Agreement
This Agreement and Seller’s acceptance form constitute the complete and exclusive statement of the agreement between the parties hereto. It supersedes all prior written and oral statements, including prior representations, statements, conditions, or warranties.
Last updated May 7th 2024.