1. CONTRACT. The Terms and Conditions of sale set forth herein constitute the entire agreement between BEE INTERNATIONAL, INC. ("Seller”) and the party whose order of Goods is received by the Seller (“Buyer”). “Goods” means the goods or any part of them which the Seller is to supply in accordance with these conditions of sale. This agreement supersedes all prior correspondence, negotiations, discussions, representations and offers between the Seller and Buyer to the extent that they conflict with or are in addition to the terms contained herein.
ACCEPTANCE. All orders taken by Seller's sales representatives or distributors are subject to acceptance at Seller's head office in South Easton, Massachusetts. SELLER'S ACCEPTANCE OF ANY ORDER IS EXPRESSLY CONDITIONED ON BUYER'S ASSENT TO THE TERMS AND CONDITIONS CONTAINED HEREIN. The Terms and Conditions of Seller's Proposal (if any) and Acknowledgement shall prevail over any conflicting or different terms in Buyer's order unless Buyer notifies Seller in writing of its objections thereto within 10 days from receipt of Seller's Acknowledgement. The failure of Seller to object to any provision in conflict herein whether contained on Buyer's Purchase Order or otherwise, shall not be construed as a waiver of the provisions hereof nor as an acceptance of any such conflicting provision.
2. TERMS OF PAYMENT. Payment shall be made in cash on due date according to agreed terms of payment. If payment is made by means of bill of exchange, letter of credit, wire transfer, or credit card, it shall not be considered to have been made until cash payment has been received. All costs involved are for the Buyer’s account. The Terms of payment are subject to approval of Seller's Credit Department.
If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to: a) cancel the contract or suspend any further deliveries to the Buyer and b) charge the Buyer a monthly interest rate of 1.5%.
3. SHIPPING SCHEDULE. Shipment dates are approximate and Estimations of shipping dates are made in good faith, but they are NOT guarantees. Seller reserves the right to ship in advance of any Buyer request dates, except those dates stipulated "not before". Seller will not be responsible for deviations in meeting specified shipping schedules nor for any losses or damage to Buyer (or any third person) occasioned by such deviations. Statements of packing measurements and gross weight constitute an approximate guide and shall not be binding on Seller.
a) Seller reserves the right to make shipment in lots and immediately invoice appropriate portion of the total selling price.
b) Seller in its sole discretion shall have the right to manufacture the products provided hereunder as far in advance of its estimated shipping schedule as it deems appropriate.
c) Should shipment be held beyond scheduled date for the convenience of Buyer, the Seller reserves the right to bill immediately for the Goods and to charge Buyer for all expenses incident to such delay, including storage.
d) In the performance or the non-performance of any of Seller’s products, Seller is not responsible for obligations under this contract or by loss of or damages to the Goods when caused in any manner or arising from any casualty, riots, acts of Buyer, strikes, or by other labor difficulties, shortages of labor, supplies, and transportation facilities or any other similar or different cause or causes beyond its reasonable control or the reasonable control of its suppliers or subcontractors.
4. PRICE QUOTATIONS. All quotations expire 30 calendar days from the date hereof unless withdrawn sooner. Prices of products scheduled for shipment more than 12 months after the date of Buyer's order shall be subject to escalation.
5. TAXES. Seller's prices do not include any applicable sales, use, excise or similar taxes. If, under law or governmental regulation, the Seller is required to pay or collect any tax upon the Goods arising from the sale, transportation, use or consumption of said products, whether directly or indirectly, the price to be paid by the Buyer shall be increased by the amount of any such taxes. Buyer shall immediately, upon Seller's request, pay such taxes to Seller.
6. CANCELLATION. Buyer shall have no right to cancel all or any portion of this order unless it pays for all costs already incurred by Seller, including the price of any Goods or services required to fill this order already committed to by Seller and a reasonable allowance for overhead and profit.
7. CHANGES. Seller shall have the right to charge Buyer for increased costs resulting from increased or decreased quantities in an accepted order, changes in schedule or changes in materials or services initiated by the Buyer.
8. WARRANTIES. The Seller warrants the products covered by this contract conform to any applicable drawings and specifications accepted in writing by Seller and will be free from any defects in material and workmanship for a period of 24 months from the date of shipment from factory. Buyer must notify the Seller within this period, in writing of any complaints of alleged defect in or nonconformance of Goods. The Seller will have the choice of repairing or replacing the Goods. The Buyer shall at Seller’s request, return the part or product DDP (Incoterms® 2010) to South Easton, Massachusetts.
If the Seller agrees that the product does not conform or is found to be defective in material or workmanship, Seller will repair or replace the defective part or product at Seller's option and expense, or repay to Buyer the full price paid for such part or product by Buyer. Any repayment of purchase price shall be without interest. Seller's sole responsibility and Buyer's exclusive remedy hereunder shall be limited to such repair, replacement or repayment of the purchase price as above provided.
Products and accessories supplied by Seller hereunder which are not of the Seller's manufacture are warranted by Seller only to the extent Buyer or Seller is able to obtain warranty service or compensations from the manufacturers thereof.
9. THERE ARE NO OTHER WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY AND OF FITNESS FOR PURPOSE, NOR ANY AFFIRMATION OF FACT OR REPRESENTATION, WHICH EXTENDS BEYOND THE DESCRIPTION OF THE FACE HEREOF.
The Warranties of Seller do not cover and Seller makes no warranty with respect to:
a) Failures not reported to Seller within the warranty period specified above,
b) Failures or damage due to misapplication, abuse, improper installation, abnormal conditions of temperature, water, dirt, or corrosive matter,
c) Failures due to operation above rated capacities or in an otherwise improper manner,
d) Products which have been in any way tampered with or altered by anyone other than an authorized representative of Seller,
e) Products damaged in shipment or storage or otherwise without fault of Seller,
f) Labor and/or material expenses incurred by Buyer which relate in any manner to any allegedly defective products unless Buyer incurs such expense under express written authorization from Seller, and
g) Parts which are subject to normal wear and tear, are scheduled for routine replacement within the guarantee period and/or parts subject to the effects of corrosion or deterioration by chemical or other action.
h) Seller does not warrant that the machine, part or equipment will produce a specific particle size distribution or a specific throughput as such performance involves factors and variables relating to the Buyer’s product and use of the equipment, which are outside of Seller’s control.
10. CLAIMS, SHORTAGES, AND RISK OF LOSS. Any claims for loss, breakage or damages after departure from Seller’s facility (obvious or concealed) are Buyer’s responsibility and should be made to the carrier. Seller will render Buyer reasonable assistance in securing satisfactory adjustment of such claims.
a) Any notices of shortages or other errors must be made in writing to Seller within 15 days after receipt of shipment. Failure to give such notice shall constitute unqualified acceptance and a waiver of all claims by Buyer.
b) Risk of loss for damages to the products sold hereunder passes to Buyer upon pickup at Seller’s premises (FCA Incoterms® 2010). Title to the products sold hereunder passes to Buyer upon payment of the full purchase price. Buyer agrees to execute such documents as Seller requests to protect Seller's interest in the products.
11. TRANSPORATION CHARGES AND ALLOWANCES. All BEE International, Inc. shipments are shipped FCA (Incoterms® 2010) with the Goods to be picked up at the Seller’s premises (South Easton, MA). Any exceptions will be stated in writing in Seller’s proposal. If the quoted price includes transportation, Seller reserves the right to designate the common carrier and to ship in the manner it deems most economical. Added costs due to special routing requested by the Buyer are chargeable to the Buyer. Under no circumstances is any freight allowance which is absorbed by Seller to be deducted from the selling price. If the quoted price includes transportation, no reduction will be made in lieu thereof whether Buyer accepts shipment at factory, warehouse, freight station, or otherwise supplies its own transportation.
12. RETURNED GOODS. The Seller reserves the right to refuse returned Goods unless authorized in advance. A restocking charge will be levied on all returned Goods.
13. HAZARDOUS OR TOXIC MATERIALS NOTICE. The Commonwealth of Massachusetts Right to Know Law requires that a Material Safety Data Sheet be on file for each hazardous or toxic substance used or stored in the workplace. It is the policy of BEE INTERNATIONAL, INC. not to handle any unknown or potentially hazardous or toxic substances without prior written approval from our Safety Committee. Therefore, all Goods returned for any reason must be thoroughly cleaned and any hazardous or toxic substances completely removed and/or neutralized. If any hazardous materials found in a returned item requires special disposal due to its characteristic as a hazardous or toxic substance, the Buyer agrees to reimburse Seller for any reasonable costs associated with the proper disposal thereof.
14. LIMITATION ON LIABILITY. Notwithstanding anything to the contrary contained in this contract, Seller's responsibility for any claims, damages, losses or liabilities arising out of or related to its performance of this contract or the products covered hereunder shall not exceed the purchase price paid by Buyer. In no event shall Seller be liable for any special, indirect, incidental or consequential damages of any character, including, but not limited to, loss of use of productive facilities or equipment, lost profits, property damage (including property damage arising out of causes of action based on strict liability) expenses incurred in reliance on Sellers performance hereunder or lost production whether suffered by Buyer or any third party.
SELLER WILL NOT BE LIABLE TO BUYER, BUYER’S CUSTOMERS, BUYER’S EMPLOYEES, BUYER’S AFFILIATES, USERS OF BUYER’S PRODUCT, OR TO ANY THIRD PARTY, FOR SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST PROFITS, AND FROM ANY CLAIM, ACTION OR CAUSE WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE MANUFACTURE, SALE, RECALL, HANDLING, REPAIR, REPLACEMENT OR USE OF BUYER’S PRODUCTS. BUYER AGREES TO INDEMNIFY AND HOLD HARMLESS SELLER, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND AFFILIATES FROM ANY CAUSE, ACTION OR CLAIM ARISING OUT OF OR RELATED TO THE MANUFACTURE, SALE, RECALL, HANDLING, REPAIR, REPLACEMENT OR USE OF BUYER’S PRODUCTS.
SELLER WILL NOT BE LIABLE TO BUYER, BUYER’S CUSTOMERS, BUYER’S EMPLOYEES, BUYER’S AFFILIATES, USERS OF BUYER’S PRODUCT, OR TO ANY THIRD PARTY, FOR REPRESENTATIONS AND WARRANTIES MADE BY SELLER’S DISTRIBUTORS AND SALES AGENTS WHICH ARE INCONSISTENT OR IN CONFLICT WITH THE TERMS OF THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO THE PRODUCT WARRANTY AND THE LIMITATION OF THE LIABILITY OF SELLER AS SET FORTH ABOVE).
15. SPECIFIC DESIGN RECOMMENDATIONS. If before or during the performance of this contract the Buyer obtains specific design and/or engineering assistance from Seller insofar as the compatibility or use of the Buyer’s products with elements or systems not supplied by Seller, it is understood and agreed by Buyer that such specific design and/or engineering assistance is provided as a service, even if Seller receives compensation therefore, and that Seller makes no warranties of any nature whatsoever with respect to the accuracy of such specific design and/or engineering assistance or with respect to any actions taken by Buyer or any others in reliance on such assistance.
16. MODIFICATION, RESCISSION AND WAIVER. This contract may not be modified or rescinded nor any of its provisions waived unless such modification, rescission or waiver is in writing and signed by an authorized employee of Seller at its principal office of 46 Eastman Street, South Easton, MA 02375. No failure or delay of Seller to insist upon strict performance of any rights or powers under these Terms and Conditions of Sale shall operate as a waiver thereof, nor shall any other single or partial exercise of such right or power preclude any other further exercise of any rights or remedies provided by law unless agreed to by Seller in writing.
17. FORCE MAJEURE. Seller is not liable for any failure or delay in delivering, repairing, or replacing the product or any component parts if such failure or delay is due to causes beyond its control or caused by factory or labor conditions, including, but not limited to, fire, wind, flood, earthquake, pandemic, failure or delay in its sources of supply of materials, parts or components, act of terrorism or sabotage, failure, delay, unavailability or interruption in transportation, utility or communications services, and governmental or regulatory order, action or request; provided, however, that if any the product or component thereof called for hereunder is to be manufactured especially for the Buyer, and manufacture is suspended by the Buyer or terminated for any reason, Buyer agrees to take delivery and make payment for such product or component thereof that has been completed.
18. BUYER INDEMNITY. Buyer shall defend, indemnify and hold harmless Sell against (a) claims for personal injury to extent such injury is caused by or results from compliance with a design provided by Buyer, including of a design feature by Buyer, damage or accident to the product sold incurred at any point after shipment from Seller’s facility, the use of the product for an application or to process a material other than the particular application and material for which it is designed and intended, a change or modification to the product (unless the change or modification is made by or in accordance with written instructions from the Seller), misuse, abuse or neglect of the product, deterioration of the product by erosion, abrasion or chemical action, any use of a replacement part not supplied by the Seller, the defacement, removal, modification or deactivation of any warning label, safety feature, or improper installation (excepting installation provided or supervised by the Seller), or failure to provide proper maintenance of the equipment. Buyer’s obligation to defend, indemnify and hold harmless Seller against a claim shall be subject to and conditioned upon Seller giving Buyer written notice of such claim within ten days after it is asserted against Seller (provided that Buyer isn’t already aware of such claim). However, such relief from this obligation if notice is not timely provided is only to the extent that the Buyer can demonstrate prejudiced therefrom. Seller has the right to direct and control the investigation, defense and settlement of such claim, including but not limited to, selection of legal counsel to represent Seller at Buyer’s expense.
19. SAFTEY FEATURES. New equipment, products and parts include safety features as shown in Seller’s drawings. If Buyer requests additional safety features, Seller may impose additional charges. Buyer is solely responsible for determining and assessing the adequacy of any warnings and safety features, including but not limited to, determining, and assessing whether warnings and safety features satisfy and comply with local legal requirements and safety practices. Buyer also assumes all risks and liabilities if any warning or safety feature on a product or its parts are defaced, removed, modified or deactivated.
20. VENUE AND CHOICE OF LAW. The rights and duties of the parties and construction and effect of all provisions hereof shall be governed by and construed according to the internal laws of the Commonwealth of Massachusetts. Failure of Seller to insist in any one or more instances upon the performance of any of the terms and conditions of this contract or the failure of Seller to exercise any of its rights hereunder shall not be construed as a waiver or relinquishment of any such term, condition, or right hereunder and shall not affect Seller’s right to insist upon strict performance and compliance with regard to any unexecuted portions of this contract or future performance of these terms and conditions.
Any controversy or claim arising out of or relating to the sale of product by Seller or any purchase order, whether completed or not, including any breach of these Terms and Conditions of Sale and claims arising out of the use or applications of the products sold, or any other allegations relating to the sale, the parties expressly agree that in the event of a dispute, that Bristol County, Commonwealth of Massachusetts, will be the exclusive venue.
21. MISCELLANEOUS. Seller reserves the right to furnish substitutes for materials which cannot be reasonably obtained because of any restrictions, voluntarily or compulsorily established by or in connection with any governmental authority or program. In all cases, the materials of construction are subject to verification and acceptance by Buyer, Seller may during any periods of shortage, due to causes beyond control of Seller or its suppliers, prorate its supply of products among all of its Buyers in such manner as may be deemed equitable in the sole judgment of Seller, Seller shall not incur any liability to Buyer because of any proration hereunder.
a) This contract is intended by the parties as a final expression of their agreement and a completed and exclusive statement of the terms thereof. The parties shall not be bound by any agent's or employee's representation, promise, or inducement not set forth in this contract.
b) No course of prior dealings between the parties and no usage of trade shall be used to supplement, explain or vary any of the terms of this contract.
22. SEVERABILITY. If any provision of the contract is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this contract shall remain in effect.