STANDARD TERMS AND CONDITIONS OF SALE (Revised: April 12, 2022)
Except as otherwise agreed to in writing by an Authorized Representative of Brandon & Clark, Inc. (“B&C”), the following terms and conditions (“Terms”) shall apply to B&C’s offer of sale (“Offer”) of the equipment, parts, or software (“Goods”) to the customer or person or entity purchasing the Goods (“Purchaser”). For purposes of the Terms, Offer means all written quotations in which the Terms are referenced, unless waived or modified in a signed writing by an Authorized Representative of B&C, and all resulting contracts. If a duly executed Agreement or Contract exists between B&C and Purchaser, any terms herein that differ from those in the Agreement or Contract shall be considered replaced by those in the Agreement or Contract.
ACCEPTANCE: Purchaser’s written order accepting this Offer of Goods (“Order”) or written direction to B&C to proceed with engineering, procurement, furnishing, manufacturing, shipment or delivery of such Goods, shall constitute agreement to only these Terms. Acceptance of this Offer by Purchaser must be expressly limited to these Terms. Any additional or contrary terms in Purchaser’s written purchase order, acknowledgment and other written direction will constitute a material alteration which B&C objects to and rejects. Trade custom and/or usage are superseded by these Terms and shall not be applicable to broaden or narrow the express terms of this Offer or used otherwise in its interpretation.
PRICES: Prices are in United States Dollars and include the cost of the manufacturer’s usual factory tests, inspection, and packing. Delivery terms shall be designated in the individual Offer. If Delivery terms are not designated in any Offer, they shall be Pre-Pay and Add FCA B&C shipping location or FCA place of shipment of B&C’s supplier (INCOTERMS 2010). Such prices do not include any other costs applicable to the Goods, including without limitation, export packing, loading, unloading, handling, storage, transportation, installation, and insurance charges. The prices applicable to the Goods are those in effect at the time of Order. Purchaser’s payment of B&C invoices containing clerical or pricing errors will not relieve Purchaser’s obligation to make full payment.
TAXES: Prices do not include any federal, state, municipal, or local property, license, privilege, business, occupation, stamp, documentary, sales, use, excise, gross receipts, duties, custom charges, value added or other similar taxes, fees or charges (“Taxes”) which may now or hereafter be imposed by any governmental authority on the Goods, or services, related to the transaction between B&C and Purchaser. If Purchaser holds a direct payment permit or claims an exemption from Taxes, Purchaser shall provide B&C with documentation acceptable to the taxing authorities involved. Otherwise, Purchaser agrees to pay or reimburse B&C any Taxes which B&C or B&C’s subcontractors or suppliers are required to pay. Under no circumstances shall B&C be responsible for any income and/or payroll taxes attributable to Purchaser and/or Purchaser’s subcontractors. Purchaser hereby agrees to indemnify B&C for any liability arising out of income and/or payroll taxes attributable to Purchaser and/or its subcontractors.
PAYMENT: Subject to credit approval by B&C, all invoices shall be paid in full in United States dollars within thirty (30) days after the date of B&C’s invoice. B&C shall invoice Purchaser for the full purchase price of Goods shipped upon delivery of such Goods. In the event progress payments are required, B&C shall invoice Purchaser for such progress payments upon completion of the applicable milestone. If, in the judgment of B&C, the financial condition of Purchaser at any time prior to delivery does not justify the terms of payment specified in an Order, B&C may require payment in advance, progress payments, payment security satisfactory to B&C, or may terminate the Order and Purchaser shall be liable for cancellation charges in accordance with the termination provisions provided herein. If delivery is delayed by Purchaser, payment shall be due thirty (30) days from the date B&C is prepared to make delivery. In the event Purchaser fails to make payment by the date provided herein, B&C may deduct such amounts due B&C from all amounts it may owe Purchaser, whether matured or unmatured, arising from this or any other transaction. Purchaser agrees that any unpaid portion of the purchase price shall bear interest at the rate of 12% per annum from and after the date due and owing. Notwithstanding any other provision of an Order, B&C does not intend to and shall not charge, collect or contract for interest in excess of the maximum rate permitted by law. Any such excess interest shall be applied first to reduce any unpaid portion of the purchase price and then to all other outstanding charges owed B&C, until such time as each is paid in full, at which time any remaining excess shall be refunded to Purchaser.
DELIVERY: Delivery dates are approximate and dependent upon (1) prompt receipt by B&C from Purchaser of all information necessary to permit B&C to proceed with its work immediately and without interruption; (2) Purchaser’s compliance with all terms and obligations of the Order, including payment terms and continued solvency; and (3) Purchaser’s ability to provide B&C with adequate assurance of Purchaser’s ability to fully perform its obligations under the Order, including assurances of payment, should B&C reasonably request such assurances. B&C shall deliver the Goods FCA B&C designated facility or FCA place of shipment of B&C’s supplier, export packing not included (INCOTERMS 2010). Partial deliveries shall be permitted. Upon such delivery, title to such Goods shall pass to Purchaser. Purchaser shall promptly inspect all Goods for quantity differences, damages and nonconformity. Purchaser shall be deemed to have accepted all Goods not rejected within fourteen (14) days following delivery. Following acceptance, all claims of defect or non-conformity shall be governed by the WARRANTY provisions herein. In the event Purchaser requests an extension of the delivery date and B&C, in its sole discretion, agrees to extend such date, B&C may place such Goods in storage either at a B&C operated facility or at another location, retaining the risk of loss for such Goods. In such events, (1) all costs incurred by B&C in connection with such storage, including, without limitation, costs of preparing such Goods for storage, placement into storage, handling, storage/demurrage, inspection, preservation and insurance (or if storage shall be at a B&C operated facility, reasonable storage costs not to exceed five percent (5%) of the total price of the Goods being stored for each month of storage), shall be due and payable by Purchaser upon receipt by Purchaser of B&C’s invoices, and (2) B&C’s delivery obligations shall be deemed fulfilled and title to the Goods shall pass to Purchaser, if it has not already passed, and (3) when conditions permit and upon payment of all amounts due hereunder, the parties shall arrange for shipment in accordance with delivery terms of the Order.
MODIFICATIONS: B&C shall have the right to modify the design and/or method of manufacture of the Goods without advance notice to Purchaser if, in the judgment of B&C, such modification does not materially and adversely affect the performance of the Goods. Upon acceptance in writing by B&C, Purchaser may request reasonable changes in any one or more of the following: (1) drawings, plans, designs and specifications; (2) quantities; (3) delivery schedule; or (4) place, manner or time of delivery. If any such change increases or decreases the cost of the Goods to be provided and/or delays B&C’s performance, then B&C shall be entitled to an equitable adjustment in price and/or time of delivery.
FORCE MAJEURE: In no event shall B&C be liable for non-delivery or delays in delivery of the Goods or for failure or delay in the performance of any other obligations arising directly or indirectly from causes of any kind beyond B&C’s control, including, without limitation, acts of nature (including but not limited to fire, flood, tornado, hurricane, earthquake, etc…), unforeseeable circumstances, acts (including delays or failure to act) of any governmental authority (de jure or de facto), war (declared or undeclared), riot, revolution, priorities, strikes, labor disputes, sabotage, epidemics, factory shutdowns or alterations, embargoes, delays or shortages in transportation, delay or inability to obtain or procure labor, manufacturing facilities or materials, or to obtain timely instructions or information from Purchaser. The foregoing provision shall apply even though such causes may occur after B&C’s performance of its obligations has been delayed for other causes.
WARRANTY: Unless a different warranty is stated herein, affixed to the Goods by the manufacturer or B&C, or is specified in writing in any maintenance or operating instructions pertaining to such Goods, B&C warrants that the Goods sold by B&C to Purchaser will be free from defects in materials and workmanship. This warranty shall expire eighteen (18) months after the date on which the Goods are delivered by B&C to the initial purchaser or twelve (12) months after the Goods are first placed in operation, whichever period shall first expire. If the Goods fail to conform to the foregoing warranty, B&C shall, at its sole discretion, repair, replace or update, free of charge, or refund the purchase price paid for any such nonconforming Goods; provided Purchaser (1) promptly notifies B&C in writing of the nonconformity, (2) furnishes B&C satisfactory proof thereof, and (3) if requested by B&C, returns the nonconforming equipment, part or software to B&C and pays all expenses incurred in connection with such return. The repaired, replacement or equipment, part or software, shall be delivered, free of charge, to Purchaser, FCA B&C designated facility or at B&C’s option, FCA a B&C authorized service shop, not loaded on truck or other carrier (INCOTERMS 2010). Purchaser shall pay all costs following such delivery, including, without limitation, all handling, transportation, assembly, installation, insurance, testing, and inspection charges. The warranty excludes (1) normal wear and tear; (2) Goods that have not been properly stored, assembled, installed, serviced, maintained, operated, or used within the limits of rated capacity and normal usage; (3) Goods not used in accordance with current operating and maintenance instructions furnished by B&C, and (4) Goods that have been altered or modified in any manner without the written consent of B&C. THE FOREGOING OBLIGATION TO REPAIR, REPLACE, UPDATE OR REFUND THE PURCHASE PRICE PAID FOR THE GOODS SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF PURCHASER, ITS CUSTOMERS AND USERS OF THE GOODS FOR THE BREACH OF THE FOREGOING WARRANTY. B&C SHALL HAVE NO OBLIGATION TO DISASSEMBLE ANY NONCONFORMING GOODS OR TO INSTALL ANY REPAIRED OR REPLACEMENT PART, EQUIPMENT OR SOFTWARE OR TO PAY ANY COSTS INCURRED IN CONNECTION WITH SUCH DISASSEMBLY OR INSTALLATION. THERE ARE NO OTHER WARRANTIES AND B&C HEREBY EXPRESSLY DISCLAIMS ALL OTHER EXPRESS, STATUTORY AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. B&C MAKES NO STATEMENT OF WARRANTY REGARDING GOODS MANUFACTURED BY THIRD PARTIES. GOODS MANUFACTURED BY THIRD PARTIES SHALL BE COVERED ONLY BY AND IN ACCORDANCE WITH THE ORIGINAL MANUFACTURER”S PASS-THROUGH WARRANTY.
PATENTS: B&C shall defend any suit or proceeding brought against Purchaser to the extent it is based upon a claim that the Goods furnished pursuant to this Order infringe any patent of the country in which the Goods are delivered to Purchaser, if notified promptly in writing and given authority, information and assistance at B&C’s expense for the defense of such suit or proceeding, and B&C shall pay all damages and costs awarded therein against Purchaser. In the event such Goods are finally determined in such suit to infringe any such patents and the use of such Goods is permanently enjoined, B&C shall, at its expense, and at its option: (1) procure for Purchaser the right to continue using said Goods; (2) replace the same with non-infringing Goods; (3) modify such Goods to be non-infringing; or (4) remove such Goods and refund the purchase price thereof, less a reasonable charge for depreciation. The foregoing states the entire liability of B&C for patent infringement by the Goods. Notwithstanding the foregoing, B&C shall have no obligation to defend any suit or proceeding brought against Purchaser to the extent it is based, in whole or in part, upon a claim that any application, method or process in which the Goods furnished by B&C are used constitutes an infringement of any patent. B&C shall have no liability or obligation to Purchaser of any kind with respect to any such claim or with respect to any damages or costs awarded or any determination of infringement made on the basis of any such claim. The foregoing provisions shall not apply to any Goods manufactured to Purchaser’s design. As to such Goods, B&C assumes no liability whatsoever for patent infringement and Purchaser shall indemnify, defend, and hold B&C harmless from and against all claims, damages, obligations, liabilities and suits (and all associated costs and expenses, including, without limitation, attorneys’ fees and costs of litigation) arising as a result of the alleged infringement of patent rights caused by the manufacture or sale by B&C of such Goods.
TERMINATION: Purchaser may terminate the Order only upon written notice to B&C and upon payment to B&C of cancellation charges in accordance with the cancellation schedule provided in the Order, or if none is provided, reasonable and proper termination charges, including but not limited to, all costs incurred prior to the notice of termination and all expenses incurred by B&C attributable to the termination. No termination by Purchaser for default shall be effective unless, within fourteen (14) days after receipt by B&C of Purchaser’s written notice specifying such default, B&C fails to commence and diligently pursue correction of such default.
LIABILITY: The total liability of B&C for any loss, damage, or claim, whether in contract, warranty, tort (including negligence and strict liability), or otherwise, arising out of or relating to this Offer or any contract based upon this Offer, shall not in any event exceed the price allocable to the Goods or service which gives rise to the loss, damage, or claim (except as further limited under the WARRANTY and PATENT provisions herein). Notwithstanding the foregoing, in no event shall B&C be liable under any theory of recovery, including, without limitation, contract, warranty, or tort (including negligence and strict liability) for any indirect, incidental, special or consequential damages, including, without limitation, loss of profits, business, or information; loss of use of the Goods or any associated equipment; costs of capital, substitute Goods, facilities or services; costs of down time or labor; or claims of Purchaser’s customers for such damages, even if B&C was advised of the possibility of such damages.
SERVICES: If Purchaser requests B&C to provide services on the Goods, including, without limitation, installation or commissioning, and such request is accepted in writing by B&C, Purchaser shall pay B&C’s standard charges for all such services plus all travel and expenses incurred in connection therewith, including, without limitation, permits, licenses, authorizations and approvals required under applicable federal, state, and local laws, regulations, and ordinances to permit the purchase, installation, operation and use of the Goods. B&C shall provide such services in accordance with its B&C Construction Services Warranty.
EXPORT CONTROL: Purchaser acknowledges that the Order may concern products and/or technical data that may be controlled or restricted under the U.S. Export Administration Regulations or the Office of Foreign Assets Control, or other applicable laws and regulations relating to the export or import of products and/or technical data and may be subject to the approval of the U.S. Department of Commerce or Treasury, respectively, prior to export. Any export or re-export of Goods by Purchaser, directly or indirectly, in contravention of the export control laws, economic sanctions laws or other applicable laws or regulations is prohibited, and Purchaser shall comply with all such laws and regulations, as well as the U.S. Foreign Corrupt Practices Act and similar laws of applicable foreign jurisdictions. Purchaser shall not seek to influence sales or other business affairs by means of bribery, kickbacks, illegal payments or other ethically questionable inducements, including gifts or anything of value. Additionally, the Goods shall not be sold for use in, or to parties that are suspected to be involved in, the development, production, use or stockpiling of weapons of mass destruction; to entities or individuals on any applicable lists of parties denied export privileges (including, without limitation, http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm), or to parties in any embargoed countries. This provision constitutes an independent covenant and continuing obligation of Purchaser and shall survive the termination of any Offer or resulting contracts.
NUCLEAR USE: The Goods described herein shall not be used in conjunction with, or as a part of, any activity or process involving nuclear fission or fusion or any use or handling of any material defined in Chapter 2 of the U.S. Atomic Energy Act of 1954, as amended, unless Purchaser, at its expense, arranges for insurance and indemnity (governmental and Purchaser) satisfactory to B&C protecting B&C against liability of any kind and agrees to such other terms as B&C may require with respect to sales of Goods for nuclear use.
GOVERNING LAW: This Offer may only be accepted in Lubbock County, Texas and any contract resulting from it shall be performable, in whole or in part, in Lubbock County, Texas and shall in all respects be governed, construed, and enforced according to the laws of the State of Texas, U.S.A (without giving effect to its conflict of laws principles). If Purchaser’s principal place of business is in the United States, then venue for all disputes arising out of this Offer or any contract resulting from it shall be in Lubbock County, Texas (or in the Northern District of Texas if such proceeding is in a United States District Court). If Purchaser’s principal place of business is located outside of the United States, any controversy or claim arising out of or relating to this Offer or any contract resulting from it shall be settled by arbitration administered by the American Arbitration Association in Lubbock, Texas in accordance with the latest Commercial Rules of the American Arbitration Association or, if applicable, in accordance with the Arbitration Rules of the United Nations Commission on International Trade Law. Judgment upon the award rendered by the arbitrator(s) may be entered in any court or forum having jurisdiction thereof. The arbitrator(s) shall provide B&C and Purchaser with a written explanation of the reasoning behind the decision and award. The arbitrators shall not have the authority to appoint a tribunal expert. B&C and Purchaser further agree to first mediate any controversy or claim in a good faith attempt to resolve it prior to the arbitration hearing in accordance with the Rules of the American Arbitration Association for mediation of disputes. The prevailing party in any arbitration proceeding shall be entitled to recover its reasonable attorneys’ fees and costs of arbitration from the other party. The United Nations Convention for the International Sale of Goods shall not apply to any contract arising from this Offer.
GENERAL: These Terms may not be waived or modified unless done in writing and signed by an Authorized Representative of B&C. Any waiver by B&C of a breach of any of these Terms shall not constitute a waiver or prejudice B&C’s right to otherwise subsequently demand strict compliance with that or any other term or condition. The provisions of these Terms as well as the provisions of any resulting contracts are severable and if any provisions are judicially determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions or portions shall nevertheless be binding and enforceable. The election of B&C to pursue any remedy shall not exclude pursuit of any other remedy otherwise available to B&C or limit its right to declare Purchaser in default. Any Offer is subject to change by B&C prior to actual receipt by B&C of written acceptance of such offer and shall expire thirty (30) days from the date of offer unless otherwise stated on the Offer. The Terms are subject to change by B&C at any time prior to an Order, and all Orders are subject to B&C’s published Standard Terms and Conditions of Sale in effect at the time of the Order.
ENTIRE AGREEMENT: These Terms shall be the only terms and conditions applicable to the sale of the Goods described herein and shall supersede all prior oral or written communications regarding the subject matter of the Offer or any resulting contract.