Terms & Conditions of Sale
Last Revised: September, 11, 2020 Version 1
1. Applicable Terms and Conditions.
a. These terms and conditions of sale (“Terms”) establish the rights, obligations, and remedies of Braun Holdings, Inc. (together with any legal entity controlling, controlled by or under common control with Braun Holdings, Inc.) (“Seller”) and a buyer (“Buyer”) of Seller’s products or services (“Products”). No additional or different terms or conditions, whether contained in Buyer’s purchase order or in any other document or communication relating to Buyer’s order, will be binding on Seller unless explicitly accepted in writing by an authorized representative of Seller. Seller expressly objects to and rejects any terms and conditions additional to or different than these Terms.
b. If Seller’s order acknowledgement, invoice, other document, or electronic transmittal including or attaching these Terms is found to be an acceptance of an offer, acceptance is conditional upon Buyer’s assent to these Terms, and acceptance of any part of Products delivered by Seller shall be deemed to constitute such assent by Buyer. If the order acknowledgement, invoice, other document, or electronic transmittal including or attaching these Terms constitutes an offer, Buyer’s acceptance of the offer is hereby limited to the terms of the offer.
2. Price, Payment Terms, and Title.
a. All prices represent those in effect at the time of quotation or order acknowledgment. Prices are stated in United States dollars unless otherwise indicated, are exclusive of shipping, handling, shipping insurance, duties, and sales, use, excise or similar taxes. Export packaging or any other special handling requested by Buyer will be at Buyer’s expense.
b. Buyer acknowledges that the pricing of the Products has been set based on the agreed allocation of risks contained in these terms and conditions. If, notwithstanding the provisions of these terms and conditions, a court of competent jurisdiction determines that Buyer’s terms and conditions apply to an order, then Seller shall have the right to either (i) modify the prices (including retroactively) according to the additional level of risk and responsibility that Buyer’s terms and conditions require Seller to undertake; or (ii) cancel the order any time after such a determination without liability for the termination other than for the Products already delivered on these terms and conditions.
c. Unless different credit terms have been extended to Buyer in writing by Seller or Seller’s associated dealer floorplan provider, payment terms are net 30 days after delivery or date of invoice, whichever first occurs, in the currency invoiced. Seller reserves the right to modify or withdraw credit terms at any time without notice.
d. If Buyer fails to fulfill the terms of payment, Seller may defer further shipments to Buyer or, at its option, cancel the unshipped portions of Buyer’s orders. In addition, any payment discounts offered by Seller shall become null and void on past due payments, effective the first day after the invoiced payment term. Seller is not required to provide notice of the voided discount and may account for any additional amounts owed on payments received reflecting payment discounts after the payment term by listing the amount owed on a later invoice or in a written notice to Buyer. Buyer further agrees to pay interest on all past due invoices at the lesser of 18% per annum, compounded monthly, or the highest contractual rate allowable under the law.
e. Until full payment of all obligations of the Buyer for an order, Seller reserves the title (but not the risk of loss) to all Products furnished under that order. If the Buyer defaults in payment or performance or becomes subject to insolvency, receivership or bankruptcy proceedings or makes an assignment for the benefit of creditors, or without the consent of Seller voluntarily or involuntarily sells, transfers, leases or permits any lien or attachment on the Products, Seller may treat all amounts then or thereafter owing by Buyer to be immediately due and payable and Seller at its election may repossess Products for which Buyer has not paid in full.. Buyer will not set off invoiced amounts or any portion thereof against sums that are due or may become due from Seller, its parents, affiliates, or subsidiaries. Buyer consents to Seller’s execution of any documents to evidence and perfect Seller’s security interest to Products Seller has title to and agrees to execute the same if requested by Seller.
3. Delivery and Risk of Loss.
a. Unless otherwise agreed in writing, all deliveries of Products will be EXW (Incoterms 2000) Seller’s facility. Products will be packed, where applicable, in Seller’s standard commercial shipping packages. Charges for shipping may not reflect net transportation costs paid by Seller. Buyer shall reimburse Seller for all costs of storage, handling, and shipping incurred by Seller after the expiration of ten days following the desired ship date as indicated on any order. Orders submitted without a desired ship date will be assigned a ship date by the Seller that is no earlier than the date of order receipt plus 21 days. Desired ship dates are not subject to modification by Buyer unless otherwise agreed to by Seller. Arrangements for transportation and shipping following the ten-day holding period are in the sole discretion of Seller and Buyer shall reimburse Seller for all expenses incurred for such shipment.
b. Delivery and shipping dates are approximate and represent Seller’s best estimate of the time required to make delivery or shipment. Time is not of the essence with respect to the transactions covered by these terms and conditions, except with respect to Buyer’s obligation to make all related payments. Seller’s obligations under these terms and conditions will be dependent upon Seller’s ability to obtain necessary raw materials and components. Seller shall have the right to make partial deliveries.
4. Acceptance. Acceptance shall occur, if not before, when Buyer fails to reject within 48 hours of a completed pre-delivery inspection or within 72 hours after delivery of the Products, whichever occurs first. Buyer may rightfully reject only when a reasonable inspection shows that the Products fail to conform substantially to the specifications for the Products. Buyer waives any right to revoke acceptance. Buyer’s remedies for any nonconformity detected after acceptance are limited to those expressly provided in these terms and conditions for breach of warranty.
5. Limited Warranty.
a. Except to the extent Seller provides a published, express written warranty applicable to a Product that contains terms inconsistent to the following terms, the following shall apply to Products:
i. Seller warrants to each original Buyer of Products that Products are, at the time of delivery to the Buyer, free from defect in material and workmanship.
ii. Seller’s obligation under this warranty for any Product proved not to be as warranted within the applicable warranty period is limited to, at its option, replacing the Product, refunding the purchase price of the Product, or using reasonable efforts to repair the Product during normal business hours at any authorized service facility of Seller. All costs of transportation of any Product claimed not to be as warranted and of any repaired or replacement Product to or from such service facility shall be borne by Seller.
iii. Seller may require the return of any Product claimed not to be as warranted to one of its facilities as designated by Seller, transportation prepaid by Buyer, to establish a claim under this warranty. The cost of labor for removing a Product and for installing a repaired or replacement Product shall be borne by Seller. Replacement parts provided under the terms of this warranty are warranted for the remainder of the warranty period of the Products in which they are installed to the same extent as if such parts were original components. Warranty services provided under these terms and conditions do not assure uninterrupted operations of Products; Seller shall not be liable for damages caused by any delays involving warranty service.
iv. The warranty period for Products is twelve (12) months from the date of shipment unless otherwise agreed by Seller in writing.
b. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH ABOVE, SELLER PROVIDES PRODUCTS AS IS AND MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE PRODUCTS, THEIR FITNESS FOR ANY PARTICULAR PURPOSE, THEIR MERCHANTIBILITY, THEIR QUALITY, THEIR NONINFRINGEMENT, OR OTHERWISE. IN NO EVENT SHALL SELLER BE LIABLE FOR THE COST OF PROCUREMENT OR INSTALLATION OF SUBSTITUTE GOODS.
6. LIMITATION OF LIABILITY. IN NO EVENT WILL SELLER BE LIABLE FOR ANY SPECIAL DAMAGES, CONSEQUENTIAL DAMAGES, INDIRECT DAMAGES, INCIDENTAL DAMAGES, STATUTORY DAMAGES, EXEMPLARY OR PUNITIVE DAMAGES, LOSS OF PROFITS, LOSS OF REVENUE, LIQUIDATED DAMAGES, OR LOSS OF USE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER’S LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO A PRODUCT SHALL IN NO CASE EXCEED THE PURCHASE PRICE OF THE PRODUCT FROM WHICH THE CLAIM ARISES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS AND EXCLUSIONS WILL APPLY WHETHER SELLER’S LIABILITY ARISES OR RESULTS FROM BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE, GROSS NEGLIGENCE, MALICE, OR INTENTIONAL CONDUCT), STRICT LIABILITY, BY OPERATION OF LAW, OR OTHERWISE.
7. Cancellation and Return of Products. Orders shall not be subject to cancellation, modification, or refund either in whole or in part without Seller’s written consent and then only with terms that will reimburse Seller for all reasonable termination or restocking charges, including all progress billings and all incurred direct manufacturing costs. Seller’s written consent must be given in advance of Buyer’s return of Products for credit. Seller reserves the right to cancel any sale of Products without liability to Buyer (except for refund of monies already paid), if the manufacture or sale of the goods is or becomes technically or economically impractical.
8. Force Majeure. Seller shall not be liable for any failure to perform or delay in performing its obligations resulting directly or indirectly from or contributed to by any acts of God, acts of Buyer or those under Buyer’s control, acts of government or other civil or military authorities, priorities, strikes, or other labor disputes, fires, accidents, floods, pandemics, epidemics, or other health related outbreaks, war, riot, embargoes, delays in transportation, lack of or inability to obtain raw materials, components, labor, fuel or supplies, or other circumstances beyond Seller’s reasonable control (“Force Majeure Event”). If Seller elects, the time for performance shall be extended by a period of time equal to the time lost because of any delays caused by reasons of a Force Majeure Event. Should Seller be prevented from completing Buyer’s order or any part thereof because of any Force Majeure Event, then Buyer agrees promptly upon request and upon receipt of invoice therefor, to pay Seller for any Product or Products then completed.
9. Work Product. “Work Product” shall include, without limitation, all designs, discoveries, creations, works, devices, masks, models, work in progress, service deliverables, inventions, products, special tooling, computer programs, procedures, improvements, developments, drawings, notes, documents, business processes, information and materials made, conceived or developed by Seller alone or with others that result from or relate to the Products. All Work Product shall at all times be and remain the sole and exclusive property of Seller. Buyer hereby agrees to irrevocably assign and transfer to Seller and does hereby assign and transfer to Seller all of its worldwide right, title and interest in and to the Work Product including all associated intellectual property rights. Buyer hereby waives any and all moral and other rights in any Work Product or any other intellectual property created, developed or acquired in respect of the Products. Seller will have the sole right to determine the treatment of any Work Product, including the right to keep it as trade secret, execute and file patent applications on it, to use and disclose it without prior patent application, to file registrations for copyright or trademark in its own name or to follow any other procedure that Seller deems appropriate. Unless provided for in a separate writing or requested by Buyer at the conclusion of any project, all tools and equipment supplied by Buyer to Seller shall remain the sole property of Seller.
a. Buyer may acquire knowledge of Seller Confidential Information (as defined below) in connection with Products and/or its performance hereunder and agrees to keep Seller Confidential Information in confidence during and following termination or expiration of this Agreement. “Seller Confidential Information” includes but is not limited to all information, whether written or oral, in any form, including, without limitation, information relating to the research, development, products, methods of manufacture, trade secrets, business plans, customers, vendors, finances, personnel data, Work Product, and other material or information considered proprietary by Seller relating to the current or anticipated business or affairs of Seller that is disclosed directly or indirectly to Buyer. In addition, Seller Confidential Information means any third party’s proprietary or confidential information disclosed to Buyer in the course of providing Products to Buyer.
b. Buyer agrees not to copy, alter or directly or indirectly disclose any Seller Confidential Information. Additionally, Buyer agrees to limit its internal distribution of Seller Confidential Information to Buyer‘s employees who have a need to know, and to take steps to ensure that the dissemination is so limited. In no event will Buyer use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to prevent the unauthorized use of Seller Confidential Information. Buyer may disclose Seller Confidential Information that is required to be disclosed pursuant to a requirement of a government agency or law but only after Buyer provides prompt notice to Seller of such requirement and gives Seller the opportunity to challenge or limit the scope of the disclosure.
c. Buyer further agrees not to use Seller Confidential Information except in the course of performing hereunder and will not use such Seller Confidential Information for its own benefit or for the benefit of any third party. All Seller Confidential Information is and shall remain the property of Seller. Upon Seller’s written request, Buyer shall return, transfer or assign to Seller all Seller Confidential Information, including all Work Product, and all copies containing Seller Confidential Information.
11. Changes in Product Design or Manufacture. Seller shall have the right to change, discontinue or modify the design and construction of any of its Products and to substitute material equal to or superior to that originally specified. However, Seller shall maintain necessary parts in inventory to fulfill its warranty obligations as set forth in these Terms.
12. Software License. Software, if included with a Product, is hereby licensed and not sold. The license is nonexclusive and is limited to use with the Product with which it is included. No other use is permitted, and Seller retains for itself (or, if applicable, its suppliers) all title and ownership to any software delivered hereunder, all of which contains confidential and proprietary information and which ownership includes without limitation all rights in patents, copyrights, trademarks and trade secrets. Buyer shall not attempt any sale, transfer, sublicense, reverse compilation or dis- assembly (save to the extent expressly permitted by law) or redistribution of the software. Buyer shall not copy, disclose or display any such software, or otherwise make it available to others.
13. Compliance with Laws. Buyer shall comply with all laws and regulations applicable to Products, including but not limited to all applicable import and export laws and regulations. Buyer and Buyer’s Agent shall provide all information requested by Seller relating to Seller’s voluntary or mandatory compliance with any law or regulation, and Buyer shall indemnify Seller for any losses incurred by Seller arising from Buyer’s or Buyer’s Agent’s failure to provide the information requested by Seller.
14. Compliance with Export Control and Sanctions Laws.
a. All sales or other business relations between Seller and Buyer are conditional on the following:
i. None of the Buyer, its representatives or any related parties is or is owned or controlled by any person or entity individually targeted under any economic sanctions or export control laws or regulations of the UN, US, EU, UK or any other relevant jurisdiction (for the purpose of this section, a Listed Person);
ii. With respect to any Product, Buyer will not engage in any business involving any Listed Person, any entity directly or indirectly owned or otherwise controlled by one or more Listed Persons or conduct any business in violation of sanctions or export control laws applicable to Seller;
iii. To Buyer’s knowledge and reasonable efforts, no Products will be used in any activities prohibited or restricted by sanctions or export control laws, including but not limited to military end users, military activities or the manufacturing of military equipment;
iv. Buyer will not sell or otherwise transfer, directly or indirectly, the Products to any country against which the UN, US, EU or UK has imposed comprehensive sanctions, including but not limited to Crimea including Sevastopol, Cuba, North Korea (DPRK), Iran, Sudan or Syria; and,
v. Buyer will immediately inform Seller of any suspected or alleged breach of the foregoing.
b. Following any reasonably suspected breach of (i)-(v) in section 14a above, Seller has the discretionary right to refuse further performance or terminate any relevant agreement it has with Buyer.
c. Buyer undertakes to indemnify and hold harmless Seller for any breach of section 14a above.
15. Waiver. No waiver of any provision of these terms and conditions (or any right or default hereunder) shall be effective unless in writing and signed by an authorized representative Seller. Any such waiver shall be effective only for the instance given and shall not operate as a waiver with respect to any other rights or obligations under these terms and conditions or applicable law in connection with any other instances or circumstances.
16. Choice of Law and Dispute Resolution. Except as set forth below, these terms and conditions shall be governed by and construed in accordance with the laws of the State of Indiana, without reference to its choice of law rules. Any claim or litigation arising out of or relating to Products or these terms and conditions shall be brought exclusively in a court of competent jurisdiction in Pulaski county, Indiana.
17. Assignment. Buyer may not assign, transfer or subcontract the performance of its services, or any of its rights and/or obligations hereunder, without Seller’s prior written consent.
18. Severability. If any provision of these terms and conditions is determined to be illegal, invalid, or unenforceable, the validity and enforceability of the remaining provisions of these terms and conditions will not be affected and, in lieu of such illegal, invalid, or unenforceable provision, there will be added, as part of these terms and conditions, one or more provisions as similar in terms as may be legal, valid and enforceable under applicable law.