SALES TERMS AND CONDITIONS
SELLER BRAUN ELECTRONIC COMPONENTS LLC IS REFERRED TO AS "BEC."
THESE SALES TERMS AND CONDITIONS GOVERN THE SALE OF ALL PRODUCTS BY BEC. ANY "PURCHASE DOCUMENT," INCLUDING, WITHOUT LIMITATION A PURCHASE ORDER OR CONFIRMED SALES ORDER, INCLUDES BY REFERENCE THESE SALES TERMS AND CONDITIONS. BY PLACING A PURCHASE ORDER OR CONFIRMING A SALES ORDER WITH BEC, BUYER EXPRESSLY ACKNOWLEDGES ITS AGREEMENT TO THESE SALES TERMS AND CONDITIONS. ANY TERMS SET FORTH IN A PURCHASE DOCUMENT WHICH ARE DIFFERENT FROM OR IN ADDITION TO THE TERMS SET FORTH HEREIN ARE REJECTED AND SHALL HAVE NO FORCE OR EFFECT UNLESS EXPRESSLY AGREED TO IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF BEC.
Acceptance and Cancellation of Orders.
Any Purchase Document accepted by BEC may be cancelled by Buyer only upon the advance written consent of BEC (which BEC may withhold in its sole discretion). As a condition to receiving BEC’s written consent, Buyer shall pay all reasonable cancellation and restocking charges incurred by BEC due to Buyer’s cancellation of the order.
Delivery and Title.
All prices quoted and goods shipped are "F.O.B. BEC’s place of shipment." Title to and risk of loss of all goods shall pass to Buyer when the goods are placed by BEC in possession of a common carrier selected by BEC Or specified carrier from buyer for shipment to Buyer. Buyer shall pay all freight, handling, delivery, and insurance costs for the shipment of goods. BEC may refuse or delay any shipment if Buyer fails to satisfy or fulfill any contractual obligations to BEC, whether pursuant to a current or a prior purchase order contract between BEC and Buyer. BEC may deliver all goods at one time or in portions, from time to time, within the time for delivery provided in the order.
BEC is excused from performance of any obligations and shall not be liable for delays in delivery or for failure to perform due to causes events or conditions beyond BEC’s reasonable control including, without limitation, acts of God, natural disasters, acts or omissions of other parties, acts or omissions of civil, military, or governmental authorities, changes in law, material shortages, strikes, riots, war, acts of terrorism, delays in transportation, or inability to obtain labor or materials through BEC’s ordinary sources. In the event of any delay, the contractual date of delivery, if any, shall be extended for a period equal to the time lost as a consequence of the delay without penalty to BEC.
Buyer shall pay for the goods in full, without offset or deduction, within the time frame and in the manner set forth on BEC’s invoice. For those sales that do not require payment in advance of or upon delivery, if payment is not received by BEC within the time period set forth on the BEC invoice, Buyer shall pay to BEC, on demand, a late payment charge of 1.5% per month of the unpaid balance or the maximum rate of interest allowed by law, whichever is less. Time is of the essence with respect to Buyer’s obligation to pay all invoices in full in a timely manner.
All checks are accepted subject to collection. BEC may offset against any payment hereunder any amount owed to BEC by Buyer, whether under this or any other contract between Buyer and BEC. Acceptance of any partial payment shall not constitute waiver of BEC’s right to payment in full of all amounts owing from Buyer to BEC.
Buyer hereby grants to BEC a security interest in the goods shipped including all accessions to and replacements of the goods and the proceeds thereof to secure the due and punctual payment of the purchase price of the goods and all other amounts owed to BEC. Buyer shall execute and deliver to BEC any additional documents, instruments, financing statements, or amendments that BEC deems necessary or advisable to maintain, continue, and perfect the security interest created.
BEC warrants that it has title to the goods shipped under this contract. BEC warrants that, unless otherwise specifically stated in writing, the goods are new, authentic, and conform to manufacturer’s specifications for form, fit, function for 5 years, and solder-ability for a period of no less than 90 days from date of delivery.
Buyer acknowledges that BEC is acting solely as a third party distributor of goods. BEC assigns to Buyer any warranty delivered to BEC by a manufacturer or other vendor to the extent the assignment is permitted by the terms thereof. BEC makes no representation, covenant, or warranty with respect to the extent or enforceability of the manufacturer’s warranty. No repair or replacement of goods by BEC or manufacturer shall extend the warranty period of the manufacturer. BEC neither assumes nor authorizes Buyer or any other person to assume on behalf of BEC any other liabilities in connection with the use, sale, or resale of the goods.
Limitation of Liability.
Buyer must make claim to BEC in writing within 5 days of any shortage or damaged goods.
Within 30 days after receipt of each shipment of goods, Buyer shall have the right to examine and test the goods to determine if there is any defective goods. All claims for any damage, defect, or shortage, or for any cause whatsoever (whether the claim is based in contract, negligence, strict liability, other tort, or otherwise) shall be deemed waived unless made in writing and received by BEC within 5 days after Buyer’s receipt of the goods, or, if the claim is for non-delivery of goods, within 30 days after the date the goods were to be delivered. Failure of BEC to receive written notice of any such claim within the applicable time period shall be deemed an absolute and unconditional waiver by Buyer of the claim regardless of whether the facts giving rise to the claim shall have then been discovered or whether processing, further manufacture, other use, or resale of goods shall have then taken place.
BUYER’S EXCLUSIVE REMEDY SHALL BE FOR DAMAGES AND BEC’S TOTAL LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING OUT OF ANY CLAIM WHATSOEVER (WHETHER THE CLAIM IS BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY) SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE GOODS IN RESPECT TO WHICH THE CLAIM ARISES OR, AT BEC’S OPTION, THE REPAIR OR REPLACEMENT OF THE GOODS. IN NO EVENT SHALL BEC BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES RESULTING FROM ANY CLAIM (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, BUSINESS LOSSES, DAMAGE TO PROPERTY, OR ANY LIABILITY OF BUYER TO ITS CUSTOMERS OR THIRD PARTIES).
In no event is BEC liable to Buyer or any third party for any liability, claims, obligations, damages, costs, or expenses, including without limitation, any direct, indirect, special, incidental, or consequential damages (including lost profits, business losses, personal property damage, personal injury, and death) arising out of or relating to the sale of goods by BEC to Buyer or any related services provided to Buyer. BEC is not liable for, and Buyer assumes full liability for, all personal injury and property damage connected with the handling, transportation, possession, processing, repackaging, further manufacture, or other use or resale of goods, whether the goods are used along or in combination with any other material.
Buyer may return to BEC any goods that are damaged or defective solely by obtaining a Return Material Authorization ("RMA") from BEC within 30 days of receipt of the goods. Buyer must return to BEC the damaged or defective goods within the period set forth in the RMA. The RMA number must be listed on all packaging containing goods returned to BEC. If Buyer does not request from BEC an RMA within 30 days of receiving the goods to be returned, or requests an RMA for goods that are not damaged or defective, BEC may, at its sole discretion, refuse to issue an RMA for return of the goods or may require that Buyer pay to BEC a reasonable restocking fee as a condition of issuing to Buyer the RMA.
BEC’s prices do not include sales, use, excise, or other similar taxes. Accordingly, Buyer shall pay, in addition to prices specified by BEC, all local, state, and federal taxes, including all sales, use, excise, or other similar tax, payable with respect to the goods or the transactions contemplated herein, or, alternatively, provide BEC with tax exemption certificates acceptable to the applicable taxing authorities.
BEC disclaims any warranty against infringement with respect to the goods sold pursuant to this Contract and the packaging relating to such goods. BEC is not liable with respect to any actual or alleged infringement of any United States or foreign patent, trademark, copyright, maskwork right, trade dress, trade secret, or similar proprietary rights.
As an independent distributor, BEC is not affiliated with the manufacturers of the goods it sells. Any and all trademark rights associated with the manufacturers’ names and products are owned by others and are not affected by BEC or its supply of goods.
Buyer is solely responsible for the installation and operation of the goods, including without limitation, obtaining all permits, licenses, or certificates required for the installation or use of the goods.
Technical Advice and Data.
Any technical advice offered or given in connection with the use of any goods is an accommodation to Buyer without charge, and BEC is not liable or responsible whatsoever for the content or use of that advice. Without BEC’s prior written consent, Buyer shall not use, duplicate, or disclose any technical data delivered or disclosed by BEC to Buyer for any purpose other than for installation, operation, or maintenance of the goods purchased by Buyer from BEC.
In the event of breach by Buyer, BEC shall have all the remedies provided under Wisconsin law which shall be cumulative with one another and with any other remedies that BEC might have at law, in equity, under any agreement of any type or, without limitation, otherwise. The waiver by BEC of any breach hereof or default in any payment shall not constitute a waiver of any succeeding breach or default. The exercise or failure to exercise any remedy shall not preclude the exercise of that remedy at another time or any other remedy at any other time. No action, regardless of type, arising out of, or in any way connected with, the goods furnished or services rendered by BEC to Buyer, may be brought by Buyer more than one year after the cause of action has accrued. Buyer shall pay to BEC, on demand, all costs incurred by BEC in enforcing, prosecuting, or defending any provision of this Contract. For purposes of this Contract, "costs" means the fees, costs, and expenses of experts, attorneys, mediators, witnesses, arbitrators, collection agents, and supersedes bonds, whether incurred before or after demand or commencement of legal proceedings, and whether incurred pursuant to trial, appellate, mediation, bankruptcy, arbitration, administrative, or judgment execution proceedings.
Integration and Assignment.
These Sales Terms and Conditions and the related purchase order, invoice and related BEC documents, if any, records the final, complete, and exclusive agreement between the parties with regard to the subjects addressed in it and supersedes any and all prior or contemporaneous oral or written agreements between them regarding the same. An amendment or modification of this Contract will be valid and effective only if it is in writing and signed by both Buyer and BEC. Any assignment by Buyer of this Contract or any rights in it, without BEC’s advance written consent, shall be void.
Buyer’s Terms and Conditions.
Goods furnished and services rendered by BEC to Buyer are sold only on the terms and conditions stated herein. Notwithstanding any terms or conditions on any document of Buyer, the information and conditions on this document are controlling over Buyer and BEC. Any different or additional terms or conditions contained on Buyer’s purchase order, invoice, confirmation, or any other Buyer generated document are specifically objected to by BEC. BEC’s performance of any contract is expressly made conditional on Buyer’s agreement to BEC’s terms and conditions contained in this Contract. Commencement of performance or delivery shall be for Buyer’s convenience only and shall not constitute acceptance by BEC of Buyer’s terms and conditions. If a contract is not earlier formed by mutual agreement between Buyer and BEC, acceptance of any goods or services by Buyer shall constitute acceptance by Buyer of the terms and conditions stated herein.
The validity, enforcement, construction, and interpretation of this Contract are governed by the laws of the State of Wisconsin and the federal laws of the United States of America, excluding the laws of those jurisdictions pertaining to resolution of conflicts with laws of other jurisdictions. The parties expressly exclude the applicability of the United Nations Convention on Contracts for the International Sale of Goods.
BEC and Buyer (a) consent to the personal jurisdiction of the state and federal courts having jurisdiction over Dane County, Wisconsin (b) stipulate that the proper, exclusive, and convenient venues for all legal proceedings arising out of this Contract are Dane County, Wisconsin for a state court proceeding, and the Western District of Wisconsin for a federal court proceeding, and (c) waive any defense, whether asserted by motion or pleading that said jurisdictions are an improper or inconvenient venue.
All agreements, covenants, conditions and provisions contained herein shall apply to and bind the assignees and successors in interest of Buyer. If any provision of this Contract is held to be invalid, illegal, unconscionable, or unenforceable, that provision will be considered separable from the remaining provisions of this Contract, will be reformed and enforced to the extent that it is valid and lawful, and will not affect the validity, legality, or enforceability of any other provision of this Contract. The captions used herein are for the convenience of the parties only and shall not affect the constructions or interpretation hereof. Nothing in this Contract, whether express or implied, is intended or should be construed to confer upon, or grant to, any person, except Buyer and BEC, any claim, right, or remedy under it.