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<br /> beckerarena.com Page 4
<br />BECKER ARENA PRODUCTS INC. STANDARD TERMS AND CONDITIONS OF SALE ‐ EFFECTIVE JANUARY 2021
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<br />1. Definitions. In these terms ‐"Seller" means the seller of the Goods as defined herein; "Buyer" means the entity purchasing the Goods, including any successors
<br />thereof; "Goods" means the goods, products and materials manufactured, imported, supplied and/or delivered for or by Seller t o Buyer, as such were approved by
<br />Seller in reply to Buyer's order and accordingly listed in the Approval of Order; "Approval of Order", in respect of any Buyer's order, means the instrument issued by
<br />Seller, bearing the same reference number of such order and specifying, among any other terms, the items of Goods, including their respective price and quantity,
<br />which shall be supplied to Buyer upon such order; "Contract" means the contract for the supply of Goods which have been order ed by Buyer and specified in Seller's
<br />Approval of Order, which contract is concluded based on these Terms and Conditions of Sale unless otherwise specified in the Approval of Order.
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<br />2. Payment. Payment for Goods shall be due on or prior to the delivery date of Goods and no discount may be taken. Payments received afte r the due date thereof
<br />shall bear a service charge from their due date, at the maximum lawful interest rate applicable, and if none – at the annual rate of 5% above the base rate from time
<br />to time of the central bank of the place of Buyer's incorporation. All payments shall be made to Seller's designated bank acc ount in the same currency and for the
<br />same amounts as specified in the Approval of Order.
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<br />3. Prices, Duties and Taxes. Prices specified in the Approval of Order are net, excluding packaging, and shall be deemed Ex‐works (Incoterms 2000 as amend ed). Prices
<br />are based, inter alia, on production costs for supplies, labor, deliveries, duties, and services current on the order d ate. In the event of material increase in any such
<br />costs, Seller reserves the right either to adjust the prices for Goods accordingly, or to cancel any certain part of the sale s relating to undelivered Goods. Duties, taxes,
<br />fees, levies and other compulsory payments applicable to the sale of Goods any time, as well as freight, express, insurance and delivery charges, shall all b e borne and
<br />paid in full by Buyer, unless otherwise expressly stipulated.
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<br />4. Delivery. Delivery dates noted on the Approval of Order are estimates only, and are not guaranteed, and are all subject to adjustment a s determined by the Seller
<br />acting reasonably. The acceptance of shipment by a common carrier or by any licensed public truckman sha ll constitute proper delivery. Risk associated with the
<br />Goods shall pass to Buyer on delivery or with the passing of title in the Goods, whichever occurs first; provided however, th at where delivery is delayed due to
<br />circumstances caused by or within the responsibility of Buyer, risk of loss shall pass to Buyer upon Seller's notification that Goods are ready for disp atch.
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<br />5. Retention of Title. Title shall pass to Buyer only upon full payment by Buyer for the Goods and following payment of any other outstanding debt b y Buyer to Seller.
<br />Buyer shall, at Seller's request, take any measures necessary under applicable law to protect Seller's title in the Goods, and lawfully notify Buyer’s present or potential
<br />creditors of Seller's title on and interest in the Goods. Buyer acknowledges that so long as title has not been transferred i n the Goods, it holds the Goods as bailee and
<br />fiduciary agent for the Seller and shall safely and securely store and keep the Goods separate and in good condition, clearly s howing the Seller’s ownership of the
<br />Goods and shall respectively record the Seller’s ownership of the Goods in its books. Notwiths tanding the above, Buyer may use Goods for its own use, or sell Goods,
<br />as fiduciary agent for the Seller, to a third party in the normal course of business by bona fide sale at market value, whereby proceeds of such usage or sale of Goods,
<br />as the case may be, shall, to the extent of the amount being owed by Buyer to Seller at the time of receipt of such proceeds, be held by Buye r on trust for Seller and
<br />specifically ascertained, until payment in full for all payable debts by Buyer to Seller.
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<br />6. Warranty.
<br />a) If applicable, Seller warrants that Goods as set out in the warranty applicable thereto given by Seller to Buyer, subject always to the terms and conditions thereof,
<br />and subject to use, storage, and application thereof in accordance with and based on Seller's standard tolerances, instructions o f use and recommendations. b) Unless
<br />otherwise restricted by mandatory applicable law, THE WARRANTY SET FORTH HEREIN IS EXPRESSLY I N LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED OR
<br />IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, QUALITY AND FITNESS FOR USE AND FOR PURPOS E, ANY ADVICE
<br />AND RECOMMENDATION AND ANY OBLIGATIONS OR LIABILITIES WHICH MAY BE IMPUTED TO SELLER, ANY AND ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED,
<br />DENIED AND EXCLUDED. BUYER EXPRESSLY AGREES THAT NO WARRANTY THAT IS NOT SPECIFICALLY STATED IN THIS AGREEMENT WILL BE CLAIMED OR OTHERWISE
<br />ADHERED TO BY BUYER AND/OR BY ANYONE ACTING ON BUYER’S BEHALF AND/OR BY ANYONE DERIVING THE LEGALITY OF ITS CLAIM FROM BUYER, NOR THAT WILL
<br />ANY SUCH WARRANTY BE VALID. SELLER NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT, ANY OTHER LIABILITY IN C ONNECTION WITH
<br />THE SALE, USE OR HANDLING OF ANY AND ALL GOODS SPECIFIED OR CONTEMPLATED BY THIS CONTRACT. NO WARRANTY IS MADE WITH RESPECT TO ANY OF THESE
<br />GOODS WHICH HAVE BEEN SUBJECT TO ACCIDENT, NEGLIGENCE, ALTERATION, IMPROPER CARE, IMPROPER STORAGE, IMPROPER MAINTENANCE, ABUSE OR MISUSE.
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<br />7. Claims and Liability.
<br />a) Unless Seller shall within 30 days after delivery of the Goods, receive from Buyer written notice of any matter or thing b y reason whereof it is alleged that Goods
<br />are not in accordance with the Contract, Goods delivered shall be deemed to have been sup plied, delivered and accepted in all respects in full conformity with the
<br />Contract and Buyer shall be entitled neither to reject the same nor to raise any claim for damages or for other remedy in res pect of any alleged negligence and/or
<br />breach of warranty and/or any condition. b) In any claim, brought subject to the conditions above, Buyer must prove to the satisfaction of Selle r that it followed
<br />Seller's instructions for use, care, storage, maintenance, handling, and application of the Goods. c) Unless oth erwise specifically restricted by mandatory applicable
<br />law, Seller's liability under any claim and in connection with any possible allegation, whether based on negligence, contract , or any other cause of action, shall, if the
<br />Seller shall be liable hereunder, be limited to either (i) the replacement of the Goods or the supply of equivalent goods; (ii) the repair, or payment of the cost of repair,
<br />of the Goods; or (iii) credit in an amount equal to the purchase price specified in Seller's pertinent invoice, or in an amount of equivalent goods, all at Seller's sole
<br />option. Buyer acknowledges that the remedy available to him as specified herein, is in lieu of any remedies that may be other wise available to him, now or in the
<br />future, whether in law or in equity, relating to any loss or damage, whether directly or indirectly, arising from the purchase and/or the use of Goods, includin g without
<br />limitation, any actual or contingent damages, loss of production, loss of profit, loss of use, loss of contracts or any o ther consequential or indirect loss whatsoever,
<br />whether pecuniary or non‐pecuniary, and it is acknowledged and agreed by Buyer that in no circumstances shall Seller be liabl e for any such damages. Should any
<br />limitation on Seller's liability hereunder be held ineffective under applicable law, than Seller's liability shall in any event be limited to the minimum amount of damages
<br />to which Seller may limit its liability, where such is greater than the purchase price as specified in Seller's pertinent inv oice. Additionally, any action against Seller must
<br />be commenced within one year after the cause of action accrues. d) Buyer, for himself and for any other party which may claim either under or through Buyer, or
<br />independently of Buyer, including Buyer's employees, directors, officers, representatives and personnel, shall indemnify and hold Seller harmless, from and against
<br />any claim or liability for damages in any way relating to the supply or use of the Goods, including claims for negligence and including but not limited to, any claim in
<br />connection with the design, manufacture, use, care, storage, delivery, application or maintenance of any Goods sold hereunder , whether alleged to have been
<br />committed by Seller or by any other person whatsoever. Buyer's undertaking as specified in this subsection shall extend and inure to the benefit of Seller and of
<br />Seller's successors at any time, as well as to Seller's personnel, representatives, managers, directors, and officers. Nothin g contained herein shall take effect to exclude
<br />or limit liability where liability may not be excluded or limited under applicable law, including, without limitation, for de ath, personal injury, and fraudulent
<br />misrepresentations. e) Any and all warranties, undertakings, guarantees, or assurances pro vided herein by Seller, are specifically limited to Buyer herein, and not
<br />imputed by Seller, whether directly or indirectly, expressly, or impliedly, to any other person or entity, including any subs equent buyer or user, bailee, licensee,
<br />assignee, employee and agent of Buyer.
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<br />8. Default. Upon failure of Buyer to pay any amounts due to Seller, or in the event of any breach or anticipated breach by Buyer of any C ontract with Seller, or if Buyer
<br />shall either (i) become insolvent, (ii) call a meeting of its creditors, or (iii) make any assignm ent for the benefit of creditors, or if (iv) a bankruptcy, insolvency,
<br />reorganization, receivership or reorganization proceeding shall be commenced by or against Buyer, then, in each such occasion , Seller may, at its sole discretion, opt
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