1. Applicability. These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) by Baermann Magnetics Inc. (“BMI”) to the buyer named on the Sales Confirmation provided with these Terms (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. The accompanying Sales Confirmation and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous agreements, both written and oral. This Agreement prevails over any of Buyer’s general terms and conditions of purchase. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend this Agreement.
2. Delivery. The goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of finished Goods. Delivery shall be made FOB BMI’s point of shipment (the “Delivery Point”). BMI may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer and each such shipment will constitute a separate sale.
3. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, BMI reserves and Buyer hereby grants to BMI a purchase money security interest in and to the Goods and in all accessions, replacements and proceeds thereto, and authorizes BMI to file financing statement(s) in the Buyer’s state of incorporation or formation to perfect the BMI’s what am I supposed to tell the guy to do they know what to dosecurity interest
4. Inspection and Rejection of Nonconforming Goods. Buyer shall inspect the Goods within five (5) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods and to have waived any claim for damage, defect, or refund, unless it notifies BMI in writing of any material nonconformance during the Inspection Period and furnishes evidence of such nonconforming goods as requested by BMI. As Buyer’s sole remedy and in BMI’s sole discretion, BMI may (i) replace such nonconforming goods, or (ii) credit or refund the Price for such nonconforming goods, together with reasonable shipping and handling expenses incurred by Buyer.
5. Price and Payment. Buyer shall purchase the Goods from BMI at the price (the “Price”) set forth in BMI’s published price list in force as of the date that BMI accepts Buyer’s purchase order. The Price excludes all taxes imposed on any amounts payable by Buyer and Buyer shall be responsible for all such taxes. Except as otherwise provided on the Sales Confirmation, Buyer shall pay all invoiced amounts due to BMI within thirty (30) days from the date of BMI’s invoice in US dollars by wire transfer or other certified funds. Payment for Goods manufactured in accordance with Buyer’s specifications must be made prior to shipment; otherwise, Buyer shall pay interest on all late payments at the lesser of the rate of one and one-half percent (1.5%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse BMI for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
6. LIMITED WARRANTY. BMI warrants to Buyer that for a period of ninety (90) days from the date of shipment of the Goods (“Warranty Period”) such Goods will materially conform to the specifications set forth in BMI’s published specifications in effect as of the date of manufacture of such Goods. BMI MAKES NO OTHER WARRANTIES WHATSOVER, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NO EMPLOYEE, AGENT, ASSIGN, OR OTHER REPRESENTATIVE OF BMI HAS ANY AUTHORITY TO BIND BMI OR TO MAKE ANY ADDITIONAL OR CONTRARY TERMS OR CONDITIONS RELATED TO THIS DOCUMENT.
7. LIMITATION OF LIABILITY. IN NO EVENT SHALL BMI BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE OR PROFIT, OR SPECIAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHETHER ARISING OUT OF CONTRACT, TORT OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT BMI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BMI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE TOTAL OF THE AMOUNTS PAID TO BMI FOR THE GOODS SOLD HEREUNDER.
8. Termination. In addition to any remedies that may be provided under this Agreement, BMI may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) breaches this Agreement and such breach continues for fifteen (15) days after Buyer’s receipt of written notice of breach; (iii) becomes insolvent or proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors are commenced against it; (v) any guarantor of the obligations of Buyer dies, becomes insolvent or if any case under any chapter of the Bankruptcy Code is commenced for, by or against such guarantor; or (v) any event occurs, whether or not similar to the foregoing, by which in BMI’s good faith belief may materially impair the prospect of payment or performance by Buyer BMI’s right to cancel, rescind, or terminate hereunder may be exercised by BMI in its sole discretion and without liability.
9. Notices. All required or permitted notices hereunder must be in writing and given: (i) by delivery in person; (ii) by a nationally recognized next day courier service; or (iii) by first class, registered or certified mail, postage prepaid, return receipt requested, to the address of the party set forth on the Sales Confirmation or such other address as either party may specify by written notice. All notices will be effective upon receipt by the party to which notice is given.
10. Force Majeure. BMI will not be liable for any cause beyond its control, including but not limited to natural disaster, acts of civil or military authority, fires, unavoidable accidents, wars, terrorism, delay in transportation, acts of God, strikes, riots, pandemic inability to obtain materials or services on commercially reasonable terms, or any other causes beyond its reasonable control.
11. Independent Contractor; No Third-Party Beneficiaries. The relationship between BMI and Buyer is that of independent contracting parties only. This Agreement does not create, and shall not be construed as creating, any rights for any third party.
12. Information. Buyer acknowledges that it has received and is familiar with BMI’s and any other manufacturer’s manuals, warnings, guidance, labeling, product data, literature, instructions and other information related to or concerning the Goods and shall adequately and periodically instruct its employees, agents, assigns, and customers and others who may come into contact with the Goods as to the safe and appropriate use, handling, storage and transportation of the goods.
13. Permissible Variations. BMI reserves the right, without notice to Purchaser, to make modifications, additions, alterations or other changes in or to the composition of the Goods which, in BMI’s opinion, do not have appreciable impact to the general characteristics or properties of the Goods or are within applicable industry standards.
14. Confidentiality. BMI shall protect the confidentiality of this Document and shall not disclose or otherwise disseminate, directly or indirectly, by any means or method, this Document or any of its terms and/or conditions or any other information related to BMI or BMI’s business that is provided to or received by Buyer or any of its owners, officers, directors, employees, agents, affiliates, representatives, successors, and/or assigns.
15. Safety. Buyer warrants that, in connection with the order, sale, delivery and use of the Goods, Buyer shall comply with all Good Manufacturing Practices, manufacturer’s information and warnings, associated protocols, as well as all OSHA and other safety-related statutes, regulations, laws, standards and requirements that are in any way applicable to the Goods as well as Buyer’s business operations.
16. Miscellaneous. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provisions of this Agreement, which will remain in full force and effect. No modification to this Agreement will be effective unless agreed to in writing and signed by both parties. BMI’s failure or refusal to exercise any of its rights, powers or privileges under this Agreement will not operate as a waiver unless made in writing and then only to the extent expressly set forth in such writing. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of BMI. Any purported assignment or delegation in violation of this Agreement is null and void. This Agreement is governed by the laws of the State of South Carolina, without regard to its principles of conflicts of laws. The parties hereby consent to the exclusive jurisdiction of and venue in the federal and/or state courts located in Spartanburg County, South Carolina.
17. Acceptance of Terms and Conditions. By placing an order or accepting delivery, the Buyer agrees to all Terms and Conditions of Sale herein.