Terms and Conditions - Sale of Goods
A. TERMS AND CONDITIONS
1. Basis of Contract
a. These terms and conditions (“Conditions”) apply to all sales by Bradshaw Taylor USA Inc. (“BT USA”) to the dealer identified in this Application (“Dealer”) of its products (“Goods”) to the exclusion of any other terms (whether verbal or written) that Dealer seeks to impose or incorporate, or which are implied by law, trade custom, practice, or course of dealing.
b. Any order for Goods which BT USA accepts by telephone, fax or email, and any contract following such an order, shall incorporate these Conditions.
c. Dealer’s order for Goods constitutes an offer by Dealer to buy the Goods in accordance with these Conditions. Dealer is responsible for ensuring that the terms of the order and any applicable specification of any samples of Goods provided to Dealer and/or the specification of Goods set out in BT USA’s catalogues (“Specifications”) are complete and accurate.
d. Dealer’s order shall only be accepted by BT USA when BT USA issues a written acceptance of Dealer’s order, at which point the contract shall come into existence. BT USA’s acceptance of Dealer’s order may be given subject to conditions or availability.
e. Dealer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any of its documents that is inconsistent with these Conditions.
f. Any samples, drawings, photographs or advertising produced by BT USA and any illustrations contained in BT USA’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. Goods are subject to alteration from the specification of the samples. They shall not form part of the Contract nor have any contractual force.
g. BT USA reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and shall inform Dealer in any such event.
h. Any quotation BT USA may give for the Goods shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue or the seasonal deadline relevant to that quotation and does not guarantee availability of all or any of the Goods which are covered by the quotation.
a. Each delivery of the Goods shall be accompanied by a delivery note that shows the date of the order, the contract number, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any).
b. BT USA shall deliver the Goods to the location set out in the order or such other location as BT USA may agree in writing (“Delivery Location”) and subject to such Incoterm as may be specified on the invoice for the relevant Goods. Unless BT USA agree other arrangements in writing, delivery is completed on the completion of unloading of the Goods at the Delivery Location.
c. Any dates quoted for delivery are approximate only, and, while BT USA will use reasonable endeavours to meet any dates quoted, the time of delivery is not of the essence.
d. If BT USA do not deliver the Goods, BT USA’s liability shall be limited to the costs and expenses Dealer incurs in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. BT USA shall not be liable for any delay in delivery of the Goods save that BT USA will take back any Goods delivered late if Dealer so requests in writing within 7 days of delivery.
e. BT USA may, where it considers it reasonable to do so, deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle Dealer to cancel any other instalment.
f. If the Dealer fails to take delivery of the Goods on the date of delivery, BT USA shall, without prejudice to its other rights, be entitled to store the Goods at the Dealer’s risk and the Dealer shall pay all storage and additional carriage costs incurred.
3. Goods and Pricing. BT USA will make available for sale to the Dealer, the Goods at the prices identified in the price list provided by BT USA (the “Price List”), upon the terms provided herein (together with the Account Application, the “Agreement”) and Dealer may resell the Goods with the United States. BT USA may, at its sole discretion, and without incurring any liability to Dealer, change the features of, or discontinue the manufacture, license, or sale of any of its Goods. The prices of Goods will be subject to change from time to time and BT USA will provide Dealer with written notice not less than 30 days in advance of the effective date of any increase in any price in the Price List; provided, however, that BT USA. may decrease any price without notice. Price changes will apply to corresponding Goods that are ordered by Dealer on or after the effective date of a price change. Unless otherwise agreed in writing by BT USA, orders under this Agreement may not be cancelled by Dealer for any reason.
4. Payment Terms. Unless otherwise approved in advance by BT USA, payments terms are net thirty (30) days from date of BT USA’s invoice, in U.S. currency. Any late payments will accrue interest at the rate of 2.0% per month from the date on which it is due until it is paid. Dealer shall be liable for all expenses, including attorneys' fees, relating to the collection of past due amounts.
5. Quality, Limited Warranty and Returns.
a. In respect of all Goods BT USA will use its commercially reasonable efforts to ensure that the Goods will be free of defects in material and workmanship for a period of one year from the date of shipment of the Goods by BT USA. THE WARRANTIES IN THIS CLAUSE ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY BT USA WITH RESPECT TO THE GOODS AND ARE IN LIEU OF
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AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO BT USA IN SPECIFICATIONS, DRAWINGS OR OTHERWISE, AND WHETHER OR NOT BT USA’S GOODS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY BT USA FOR DEALER’S USE OR PURPOSE. ALSO EXCLUDED FROM THESE LIMITED WARRANTIES ARE DEFECTS DIRECTLY OR INDIRECTLY CAUSED BY ACTIONS OR INACTIONS OF DEALER, OR DEFECTS THAT ARE DIRECTLY OR INDIRECTLY RELATED TO FAILURE TO USE, STORE OR CARE FOR THE GOODS IN ACCORDANCE WITH BT USA’S PRODUCT CARE INSTRUCTIONS, DETERIORATION OF COLOURS AND MATERIALS OVER TIME AND AFTER PROLONGED USE, DAMAGE FROM FOREIGN BODIES OR FLUIDS, NORMAL WEAR AND TEAR, MISUSE, ABUSE, OR NEGLECT, CHANGES, ALTERATIONS, AND/OR ANYTHING OTHER THAN DEFECTS IN MATERIAL OR WORKMANSHIP. The foregoing warranty is for the sole and exclusive benefit of Dealer, and does not extend to any third parties, including without limitation any resellers or end users. b. THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER SHALL BE LIMITED TO REPAIR, CORRECTION OR REPLACEMENT OF THE AFFECTED GOODS, OR REFUND OF THE PURCHASE PRICE PAID THEREFOR. Dealer acknowledges that, before returning any Goods to BT USA for warranty inspection, Dealer will need to obtain a return authorization number and ship such Goods, freight prepaid and insured, to BT USA, along with the return authorization number. If BT USA determines that such Goods does not conform to its Specification, BT USA will have the right to repair or replace the product or issue Dealer a refund or credit for the product, as determined by BT USA in its sole discretion.
6. Minimum Advertised Price (MAP) Policy. BT USA will maintain an updated “MAP Pricing” list of those Goods subject to MAP. BT USA reserves the right to update or modify this list at any time and Dealer will get advance notice of any price changes. This MAP policy applies to all advertisement of Goods in any and all media, including, without limitation, flyers, posters, coupons, mailers, inserts, newspapers, magazines, catalogs, internet, or similar electronic media including websites, forums, marketplaces, email newsletters, email solicitations, television, radio, and public and store signage. Product lists, promotional dates, and all details of this policy can be requested via your BT USA sales agent.
7. Marketplaces. Dealers are permitted to resell BT USA Goods only at the locations and websites listed in Section A of the Dealer Account Application unless agreed otherwise by BT USA in writing.
8. Disclaimer. ALL SALES ARE FINAL. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5, GOODS ARE PROVIDED ON AN “AS-IS” BASIS WITHOUT ANY WARRANTY, AND BT USA EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE.
9. Limitation of Liability. BT USA SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE AND THE REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE. IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL BT USA’S LIABILITY TO DEALER EXCEED THE PRICE PAID BY DEALER FOR THE SPECIFIC GOODS PROVIDED BY BT USA GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. DEALER AGREES THAT IN NO EVENT SHALL BT USA’S LIABILITY TO DEALER EXTEND TO INCLUDE INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. The term "consequential damages" shall include, but not be limited to, loss of anticipated profits, business interruption, loss of use, revenue, reputation and data, costs incurred, including without limitation, for capital, fuel, power and loss or damage to property or equipment. Dealer expressly acknowledges and agrees that BT USA has set its prices and entered into this Agreement in reliance upon the limitations of liability and other terms and conditions specified herein, which allocates the risk between BT USA and Dealer and form a basis of this bargain between the parties.
10. Intellectual Property; Proprietary Information.
a. During the term of this Agreement and subject to the terms of this Agreement, BT USA hereby grants to Dealer a revocable, non-exclusive, non-transferable license (without the right to grant sublicenses) to use the trademarks, trade names, and other marketing names used by BT USA for the Goods (collectively, the “Marks”) solely: (i) on or with the Goods, including the packaging, advertising, marketing, and other materials associated therewith; (ii) in connection with the development of internet websites featuring the Goods (subject to the restrictions set forth in this Agreement); and (iii) in full accordance with all guidelines, policies, and instructions as may be promulgated from time to time by BT USA. The license granted by the preceding sentence will not survive the termination of this Agreement.
b. Dealer will not do business under, or operate any websites that incorporate, any name or designation containing a Mark without BT USA’s prior written permission. Dealer recognizes BT USA’s exclusive ownership of all such Marks and disclaims any rights to the Marks beyond the use rights granted in this Agreement. Dealer will not attempt to register any Marks.
c. Dealer may have access to and become acquainted with BT USA’s non-public, confidential and/or proprietary information including, but not limited to, information concerning customers and accounts, pricing, personnel, sales, marketing, financial operations and methods, designs, and trade secrets (collectively "Proprietary Information"). Except with the prior written consent of BT USA, which BT USA may withhold in its sole and absolute discretion, Dealer will not disclose to any third party any of BT USA's Proprietary Information directly or indirectly, or use it in any way, and will further make all reasonably necessary efforts to safeguard from disclosure any of BT USA Inc.’s Proprietary Information during the term of this Agreement and thereafter.
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11. Risk and Title. Goods which BT USA has agreed to sell to the Dealer shall be at the Dealer’s risk as soon as they are delivered (or, pursuant to Section 2(f), as soon as delivery has been attempted) to the Dealer’s premises or other agreed destination in accordance with Section 2. These Goods shall remain the property of BT USA until such time as the Dealer shall have paid BT USA the agreed price together with the full price of any goods sold to the Dealer by BT USA or any of its Affiliates payment for which is outstanding. For the purposes of these Conditions, an "Affiliate" includes, in respect of any company from time to time, any subsidiary or holding company of such company and any subsidiary of such holding company. The passing of title and risk in the Goods supplied by BT USA shall be as follows:
a. from the time of delivery or attempted delivery, the Goods shall be at the Dealer’s risk who shall be solely responsible for their custody and maintenance but, unless otherwise expressly agreed in writing, the Goods shall remain BT USA’s property until all payments to be made by the Dealer under this Agreement and any other agreements between BT USA and the Dealer and on any other account whatsoever have been made in full and unconditionally. Whilst BT USA’s ownership continues the Dealer shall keep the Goods labelled as belonging to BT USA and separate and identifiable from all other goods in its possession as bailee for BT USA;
b. Dealer hereby grants to BT USA a purchase money security interest in the Goods and any proceeds Dealer receives from sales thereof until payment of the full purchase price to BT USA and Dealer agrees to perform all acts BT USA reasonably deems necessary or appropriate to perfect and maintain such security interest.
c. the Dealer’s right to possession of the Goods shall immediately cease if the Dealer does anything or fails to do anything which would entitle an administrator or administrative receiver (or any equivalent or similar insolvency or bankruptcy court or proceeding in any jurisdiction) to take possession of any of the Dealer’s assets or entitle any person to present against the Dealer a petition for winding up;
d. the Dealer may only re-sell the Goods to its own customers and clients in the ordinary course of the Dealer’s business and in doing so it shall act as a fiduciary and trustee for BT USA and in the event of any resale by the Dealer of the Goods BT USA’s beneficial entitlement shall attach to the proceeds of the sale or other disposition thereof so that such proceeds or any claim therefor shall be assigned to BT USA and until such assignment shall be held on trust in a separate identified account for BT USA by the Dealer and such proceeds shall not be mingled with other monies or paid into any overdrawn bank account and shall at all times be identifiable as BT USA’s monies;
e. without prejudice to the equitable rules as to tracing, in the event of failure to pay any and all payments for the Goods in accordance with these Conditions BT USA shall have power to re-sell the Goods, such power being additional to (and not in substitution for) any other power of sale arising by operation of law or equity or otherwise and for such purpose BT USA and its servants and agents may forthwith enter upon any premises or land occupied by the Dealer to remove the Goods, and
f. pending payment of any and all payments due hereunder for the Goods the Dealer shall at all times keep the Goods comprehensively insured against loss, damage by accident, fire, theft and other risks usually covered by insurance in the type of business carried on by the Dealer in an amount at least equal to the balance of the payments due hereunder for the same from time to time remaining outstanding. The policy shall bear an endorsement recording BT USA’s interest.
12. Relationship of Parties. Each party will be deemed to be an independent contractor with regard to the other party. Dealer is neither the sales agent nor sales representative of BT USA and has no authority or right to bind BT USA to any obligations with third parties.
13. Integration; Amendment. This Agreement, together with the exhibits and/or attachments hereto, each of which is expressly incorporated herein by reference, constitutes the entire agreement between the parties pertaining to the subject matter contained herein and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties. The terms of this Agreement will govern in the event of any conflict with the terms of any related Agreement. Any amendment or waiver of any terms must be made in writing and signed by both parties; provided, however, that BT USA may adopt certain policies from time to time that may apply to Dealer.
14. Governing Law; Venue. The validity, performance, and all other matters relating to the interpretation and effect of this agreement shall be governed by the laws of the State of Delaware, without regard to any choice-of-law principles. Should any action be brought to enforce the terms of this Agreement, the federal and state courts located in Boulder, CO will have sole jurisdiction over any such disputes or litigation and the parties hereby consent to such jurisdiction and waive any objections thereto.
15. Recovery of Fees. In the event of a dispute regarding the non-payment or collection of the price for Goods purchased under this Agreement, the non-prevailing party shall pay the other party’s reasonable attorneys’ fees and other costs and expenses in such amount as a court, mediator, or arbitrator shall determine.
16. Assignment Dealer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of BT USA, and any such assignment, without such consent, shall be void.