Terms of Sale:
These Terms and Conditions of Sale (“Terms”) are attached to and made part of the written order confirmation (“Order Confirmation”) sent by Bedoukian Research, Inc. (“BRI”) to the Buyer (“Buyer”) acknowledging acceptance of Buyer’s order of BRI products (the “Products”). These Terms are also attached to and made part of BRI’s invoice for the Products. By submitting an order for the Products, whether by telephone, electronic mail, on BRI’s website or by other means of communication, Buyer agrees to accept these Terms as the terms and conditions governing the sale of the Products by BRI to the Buyer (the “Sale”). BRI and the Buyer are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
- Changes: No change to any of these Terms shall be binding on BRI unless BRI’s authorized officer expressly consents to the change in writing. In the event of any conflict or inconsistency between these Terms and the provisions of any Buyer document or communication, including Buyer’s purchase order or any other form, document, or written or oral communication supplied by Buyer to BRI, whether before, on or after the date of Buyer’s order, these Terms shall prevail. BRI’s failure to object to any provision set forth in any document or communication supplied by Buyer shall not be construed as a waiver of these Terms nor as acceptance of any such provision.
- Purchase and Sale of Products: BRI agrees to sell, and Buyer agrees to purchase the Products for the purchase price set forth in the Order Confirmation.
- Delivery Terms: Unless otherwise agreed in writing by BRI, the following Incoterms ® are selected: (a) FCA Danbury, CT INCOTERMS 2020, at BRI’s facility or other loading point; (b) delivery of the Products to Buyer’s carrier at the loading point constitutes delivery to Buyer (“Delivery”); and (c) all risk of loss or damage in transit shall be borne by Buyer. BRI reserves the right to make delivery in installments, all such installments to be separately invoiced and paid when due per invoice, even if additional installments are required to complete Buyer’s order.
- Claims: Within fourteen (14) days from (a) the date of Delivery, in the case of Products sent by truck or (b) the date of arrival at the airport or shipping port, in the case of Products sent by air or sea, Buyer shall conduct a reasonable inspection and adequate testing of the Products and shall give notice to BRI of any claims for shortages, defects, nonconformities or damages; and Buyer shall hold any unaccepted Products (“Nonconforming Products”) for BRI’s written instructions concerning disposition. If Buyer fails to notify BRI within the fourteen (14) day period described above, the Products shall be deemed to be accepted by Buyer and to conform to these Terms and to the applicable product specifications (“Product Specifications”). Product Specifications are available on BRI’s website or may be obtained by calling Customer Service at 203-830-4000.
- Returns: Buyer may not return Nonconforming Products unless timely notice is given as provided in Section 4, and the return is authorized by BRI in writing. BRI will not accept broken containers, or Products deteriorated due to improper storage, the effects of heat, cold or moisture, or other conditions. Products may not be returned for credit except with BRI’s permission, and then only in strict compliance with BRI’s return-shipment instructions. Credit will only be issued once Products have been received.
- Force Majeure: Neither Party shall be deemed in default if prevented from performing for any reason beyond its control, including but not limited to, acts of God, war, civil commotion, fire, flood or casualty, explosion, power outage, strike, slowdowns, labor shortages or other labor difficulties, problems relating to materials or equipment, governmental regulations, declaration of emergency, shutdown or other restrictions, or unusually severe weather. In any such case, the Parties agree to negotiate in good faith with the goal of preserving the Sale and the rights and obligations of the Parties hereunder, to the extent practicable. It is agreed that financial adversity is not a matter beyond a Party’s control for purposes of this clause.
- Allocation of Product: If BRI is unable for any reason to supply the total demands for the Product ordered by Buyer, BRI may allocate its available supply among any or all buyers as BRI deems reasonable, without liability for any shortfall. Buyer shall be obligated to pay the purchase price for the Products delivered to Buyer, even if the order is incomplete.
- Time of Payment; Late Fee and Collection Costs: All prices are subject to change from time to time without notice; provided that shipments will be billed at the price quoted in the Order Confirmation. If Buyer’s credit has been approved by BRI, terms of the Sale are net 30 days, unless otherwise stated in writing by BRI. BRI reserves the right to require full or partial payment in advance before proceeding with fulfillment of the Sale. If Buyer fails to make any payment when due, BRI, at its option and without limiting its remedies, may defer or cancel further deliveries. In addition, BRI reserves the right to charge a late fee equal to 10 percent (10%) per annum from the date payment is due until paid; and Buyer shall be liable for any collection costs that BRI incurs, including reasonable attorneys’ fees.
- Other Charges: BRI may levy additional charges for services provided and costs incurred, including, without limitation, handling, labeling, restocking, repacking/repackaging, filling orders below minimum quantity, etc. Such charges will be stated in the Order Confirmation, if known on the date of Order Confirmation.
- Taxes and other Fees: Any use, sales or excise tax, duty, custom, inspection or testing fee, or other charge of any nature imposed by any governmental authority in connection with the Sale shall be paid directly by Buyer or, if disbursed by BRI, shall be reimbursed by Buyer. If any exemption is applicable, Buyer shall provide proof with its order.
- Technical Assistance: If requested, BRI may furnish technical assistance and information regarding the Products. Unless otherwise agreed, such assistance and information will be provided without charge. BRI makes no warranties of any kind or nature with respect to technical assistance or information that it provides, and any suggestion by BRI regarding use, application or suitability of the Products shall not be construed as an express or implied warranty unless expressly designated as such in writing by BRI.
- LIMITATION OF WARRANTIES: BRI warrants that the Products sold to the Buyer will conform to the Product Specifications. Otherwise, BRI makes no representations or warranties, either express or implied, of any kind with respect to the Products, including warranties as to merchantability, fitness for a particular purpose or otherwise. Without limiting the generality of the foregoing, BRI does not warrant that the use or sale of the Products by Buyer or Buyer’s customer will not infringe the claims of any United States or other patents covering the Products themselves or the use thereof in combination with other products or in any process.
- LIMITATION OF LIABILITY: Buyer’s sole and exclusive remedy with respect to any Products delivered to Buyer that are proved to BRI’s satisfaction to be Nonconforming Products shall be either (a) replacement of such Products without charge or (b) refund of the purchase price upon return of such Products in accordance with BRI’s instructions. With respect to any other liability arising under these Terms, except for liability arising under Section 16 or 17, below, the liability of each of the Parties, and the non-breaching Party’s exclusive remedy for any breach of performance hereunder, shall be the recovery of actual damages; and in no event shall either Party be liable to the other for any lost profits, incidental or consequential damages, or punitive damages.
- Compliance with Laws, Regulations: BRI shall comply with all applicable federal, state, and local laws and regulations in connection with manufacturing the Products.
Buyer’s Responsibilities in Connection with Use and Sale of Products: (a) Testing. Buyer acknowledges that the Products may not have been tested by BRI for safety and efficacy for food, drug, device, cosmetic, commercial or any other use, unless otherwise stated in writing by BRI. Buyer expressly represents and warrants to BRI that Buyer will properly test, use, manufacture and market all Products purchased from BRI that are used or sold by Buyer, including Products that are incorporated into Buyer’s products, in accordance with the practices of a reasonable person who is an expert in Buyer’s industry and in strict compliance with all applicable food, drug,
device and cosmetic and other relevant laws and regulations, now and hereafter enacted. (b) Compliance with Certain Laws. Buyer warrants to BRI that any products manufactured using BRI’s Products shall not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act and shall not be products which may not be introduced into interstate commerce under Sections 404, 505, or 512 of such Act. Items that are not registered under the Toxic Substance Control Act (TSCA) or Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) are for use only in Research & Development by technically qualified individuals, or in products not regulated by TSCA or FIFRA . Buyer shall assure that the Products purchased from BRI are approved for use under TSCA or FIFRA, if applicable. (c) Hazards. Buyer shall verify the known hazards and conduct any further research necessary to learn the hazards involved in using Products purchased from BRI. Buyer also has the duty to warn Buyer’s customers, employees and any auxiliary personnel (such as freight handlers, etc.) of any risks involved in using or handling the Products. Buyer agrees to comply with any instructions furnished by BRI relating to the use of the Products and not to misuse the Products in any manner. BRI assumes no responsibility for ascertaining or monitoring how its Products are used by Buyer or anyone acquiring the Products from Buyer, or whether any such use complies with applicable U.S. or foreign laws and regulations. (d) Purchasers outside of USA. In the case of Buyers located outside of the United States, BRI makes no representation or warranty that the Products or the intended uses of the Products comply with applicable laws or regulations in the Buyer’s jurisdiction including, without limitation, safety, efficacy and environmental laws and regulations.
(e) Repackaging, Relabeling, Inclusion in Other Products. If the Products purchased from BRI are to be repackaged, relabeled or used as starting materials or components of other products, (i) Buyer will verify the suitability of the Products for their intended use or purposes; (ii) Buyer assumes the risk of any loss, damage, or liability that may arise as a result of repackaging or relabeling, including without limitation contamination or spoilage; and (iii) Buyer shall not use BRI’s name, or any BRI trademarks, sales materials, or other identifying information on or in connection with the sale of any repackaged or relabeled Products or Products that are components of Buyer’s products. (f) Duty to Give Notice of Incidents. Buyer shall notify BRI immediately upon Buyer’s becoming aware of any accident or other incident involving BRI’s Products resulting in personal injury or damage to property, and Buyer shall fully cooperate with BRI in the investigation of the cause of such incident and shall make available to BRI all statements, reports, and tests made by Buyer or made available to Buyer by others. Neither the acceptance of such information by BRI nor any investigation by BRI shall constitute an admission or assumption of liability. (g) No Liability to Buyer’s Customers. Buyer shall warn its customers of the stipulations and obligations stated in this Section 15, and Buyer shall bear the risk of any noncompliance by Buyer’s customer. (h) Not for Use in Tobacco Products. BRI’s Products are not for use in tobacco products, e cigarettes, or any other nicotine delivery devices, applications and/or products. Buyer will be liable to BRI for any violation of the foregoing prohibition by Buyer or any subsequent purchaser of the BRI Products originally sold to Buyer (including BRI Products incorporated into other products).
- Non-Disclosure: Each Party agrees that it shall not use or disclose confidential or proprietary information disclosed to it by the other Party, including, without limitation, the Terms of the Sale, the nature and results of any testing by either Party, trade secrets, and product or business data. Buyer further agrees that it will not reverse engineer any substances that are provided to it by BRI, including the Products.
- Indemnification: Each Party hereto (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other Party, any subsidiary or affiliate thereof and their respective officers, directors, employees, agents, and successors and assigns (the “Indemnified Parties”) from and against all losses, claims, damages, costs, expenses (including reasonable attorneys’ fees), liabilities or judgments or amounts that are paid in settlement of or in connection with any threatened or actual third party claim, action, suit, proceeding or investigation (collectively, “Losses and Expenses”) arising in whole or in part out of (a) any breach of these Terms by the Indemnifying Party or any subsidiary or affiliate thereof or (b) any willful or negligent act, omission or conduct of the Indemnifying Party or any subsidiary or affiliate thereof. Further, Buyer agrees to indemnify and hold BRI (and BRI Indemnified Parties) harmless from and against any and all Losses and Expenses that BRI (and BRI Indemnified Parties) may sustain or incur as a result of any claim of negligence, breach of implied warranty, strict liability in tort or other theory of law, asserted by Buyer, its officers, agents or employees, its successors and assigns, or by purchasers and users of Buyer’s products, in connection with (i) the use of BRI’s Products or (ii) by reason of Buyer’s or Buyer’s customer’s failure to comply with the provisions set forth in Section 15 hereof or (iii) arising in whole or in part out of any alleged patent infringement based upon any making, having made, selling, offering to sell, using, importing or exporting any BRI Products which Buyer or Buyer’s customer uses or manufactures in a manner that is alleged to infringe any patent. Any Indemnified Party wishing to claim indemnification hereunder shall notify the Indemnifying Party promptly in writing, but the failure to so notify shall not relieve the Indemnifying Party from any liability that it may have hereunder, except to the extent that such failure would materially prejudice the Indemnifying Party.
- Entire Agreement; Binding Effect: These Terms, together with the Order Confirmation, the Product Specifications, and BRI’s invoice, constitute the entire agreement of the Parties relating to the Sale; and no prior or contemporaneous representations, proposals, correspondence, agreements or understandings, oral or written, shall be effective. These Terms are binding on the Parties and their respective successors and assigns.
- Governing Law; Exclusive Jurisdiction. All questions concerning the construction, validity, and interpretation of these Terms and the performance of the obligations imposed by these Terms shall be governed by the internal law, not the law of conflicts, of the State of Connecticut. Any suit arising under these Terms or in connection with the Sale shall be brought exclusively in the United States District Court for the District of Connecticut or any Connecticut State Court having jurisdiction over the subject matter of the dispute or matter. Each Party hereby (a) consents to the exercise of personal jurisdiction by any such court with respect to any such proceeding; (b) irrevocably and unconditionally agrees that service of process by certified mail, return receipt requested, shall be deemed adequate service of process; and (c) irrevocably and unconditionally waives and agrees not to plead or claim in such designated court any objection to venue or that such court is an inconvenient forum.
- Notices: Any notice or other communication required or permitted hereunder shall be in writing and shall be deemed given to the Party to whom the notice is directed at the address provided in the Order Confirmation at the earliest of the following: (i) when personally delivered, with receipt acknowledged, or (ii) five (5) business days after being sent by registered or certified US mail, postage prepaid, return receipt requested, or (iii) when sent by facsimile or electronic mail, on the date received.
- No Rights in Third Parties: These Terms are not intended, nor shall they be construed, to create any rights in or to benefit any third parties, including, without limitation, any person or entity purchasing products from Buyer that incorporate the Products.