TERMS AND CONDITIONS OF SALE
1. Applicability.
(a) These terms and conditions of sale (these "Terms") are the only terms that
govern the sale of the goods ("Goods") by Brooklyn Tool Inc. ("Seller") to the buyer
named on the Order Confirmation (as defined below) ("Buyer"). Collectively Buyer and
Seller are referred to as the "Parties" and individually as "Party."
(b) The accompanying order confirmation (the "Order Confirmation") and
these Terms (collectively, this "Agreement") comprise the entire agreement between the
parties, and supersede all prior or contemporaneous understandings, agreements,
negotiations, representations and warranties, and communications, both written and oral.
This Agreement supersedes any of Buyer's general terms and conditions of purchase
regardless of whether or when Buyer has submitted its purchase order or such terms.
Seller expressly rejects Buyer's general terms and conditions of purchase, and fulfillment
of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions or
serve to modify or amend these Terms. Acceptance of the Order Confirmation by Buyer
(which shall be deemed accepted should Buyer not object in writing within two (2)
business days of receipt of the Order Confirmation) is a prerequisite to the purchase of the
Goods and shall operate as an acceptance of these Terms which are expressly incorporated into the Order Confirmation.
2. Delivery.
(a) The goods will be delivered within a reasonable time after the receipt of
Buyer's purchase order, subject to availability of the Goods. Delivery dates given by Seller
are estimates only and are subject to shipping variations and requirements.
(b) Seller shall deliver the Goods to the location identified in the Order
Confirmation (the "Delivery Point") using Seller's standard methods for packaging and
shipping such Goods unless a different method is identified in the Order Confirmation.
Buyer shall be responsible for all loading costs and provide equipment and labor
reasonably suited for receipt of the Goods at the Delivery Point.] Buyer is responsible for
fees associated with not taking timely delivery of the Goods, such as storage fees. Seller
may, in its sole discretion, without liability or penalty, make partial shipments of Goods to
Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units
shipped whether such shipment is in whole or partial fulfillment of Buyer's purchase order.
3. Title and Risk of Loss.
Title and risk of loss pass to Buyer upon delivery of the
Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.
The security interest granted under this provision constitutes a purchase money security interest under the Minnesota Uniform Commercial Code.
4. Amendment and Modification.
These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each Party.
5. Inspection.
(a) Buyer shall inspect the packaged Goods immediately upon receipt at the
Delivery Point and document any damage with the carrier. Buyer shall open and inspect
the Goods for concealed damage within twelve (12) hours of receipt at the Delivery Point
("Inspection Period"). Buyer shall report any concealed damage to Seller as soon as
possible but no later than the expiration of the Inspection Period. Buyer will be deemed to
have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods
(as defined below) during the Inspection Period and furnishes such written evidence or
other documentation as required by Seller. "Nonconforming Goods" means only the
following: (i) product shipped is different than identified in the Order Confirmation; or (ii)
product's label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall,
in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or
(ii) credit or refund the Price for such Nonconforming Goods, together with any
reasonable third-party shipping and handling expenses actually incurred and paid by
Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the
Nonconforming Goods to Seller's facility located at 7875 Ranchers Rd NE, Minneapolis,
MN 55432. If Seller exercises its option to replace Nonconforming Goods, Seller shall,
after receiving Buyer's shipment of Nonconforming Goods, ship the replacement Goods to
Buyer.
(c) Return Policy. Standard products expressly identified in the Order
Confirmation as being eligible for return may be accepted if Buyer notifies Seller within
ten (10) days of receipt of the Goods. Each return request will be reviewed on a
case-by-case basis, and all approved returns may incur a restocking fee. Custom-made
items are non-returnable unless they have a manufacturing defect that differs from an
approved sample or design. If a Good exhibits a manufacturing defect, Buyer must contact
Seller to discuss solutions or replacement options. All return/replacement requests must be sent by email to Seller at sales@brooklynti.com.
(d) Buyer acknowledges and agrees that the remedies set forth in Section 5(b)
are Buyer's exclusive remedies for Nonconforming Goods. Except as provided under
Section 5(b) and Section 5(c), all sales of Goods to Buyer are made on a one-way basis
and Buyer has no right to return Goods purchased under this Agreement to Seller.
6. Price
(a) Buyer shall purchase the Goods from Seller at the prices (the "Prices") set
forth in Seller's published price list in force as of the date of the Order Confirmation.
(b) All Prices are exclusive of all sales, use, and excise taxes, and any other
similar taxes, duties, and charges of any kind imposed by any governmental authority on
any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and
taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with
respect to, Seller's income, revenues, gross receipts, personnel, or real or personal property or other assets. The Prices exclude transportation and insurance costs which are the responsibility of the Buyer.
7. Payment Terms
(a) Unless otherwise stated in the Order Confirmation, Buyer shall pay Seller
all amounts due within thirty (30) days after receipt of invoice. All payments hereunder
shall be in US dollars and made by check, wire, or ACH. Seller reserves the right to
require pre-payment in its sole discretion.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of
1.5% per month or the highest rate permissible under applicable law. Buyer shall
reimburse Seller for all costs incurred in collecting any late payments, including, without
limitation, attorneys' fees. In addition to all other remedies available under this Agreement
or at law (which Seller does not waive by the exercise of any rights hereunder), Seller
shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts
when due hereunder and such failure continues for seven (7) days following written notice
thereof. Buyer shall not withhold payment of any amounts due and payable by reason of
any set-off of any claim or dispute with Seller, whether relating to Seller's breach,
bankruptcy, or otherwise.
8. WARRANTIES DISCLAIMER. THE GOODS ARE SOLD ON AN AS-IS
BASIS AND SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY
WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a)
WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF
INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING
BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF
TRADE, OR OTHERWISE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED
UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY
OTHER INDIVIDUAL OR ENTITY ON SELLER'S BEHALF.
9. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER OR ANY OF ITS
REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT,
INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED
DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE,
ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF
(A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER
SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C)
THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR
OTHERWISE) UPON WHICH THE CLAIM IS BASED.
(b) SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR
RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR
RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE)
OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS
PAID TO SELLER PURSUANT TO THIS AGREEMENT FOR SUCH ORDER.
10. Compliance with Law.
Buyer shall at all times comply with all laws applicable to
the operation of its business, this Agreement, Buyer's performance of its obligations hereunder,
and Buyer's use of the Goods. Without limiting the generality of the foregoing, Buyer shall (a) at
its own expense, maintain all certifications, credentials, licenses, and permits necessary to
conduct its business relating to the purchase or use of the Goods and (b) not engage in any activity or transaction involving the Goods, by way of shipment, use, or otherwise, that violates any law.
11. Waiver.
No waiver by Seller of any of the provisions of this Agreement is
effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or
delay in exercising, any right, remedy, power, or privilege arising from this Agreement by Seller operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder by Seller precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by Seller.
12. Confidential Information.
All non-public, confidential, or proprietary information
of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
13. Force Majeure.
Neither Party shall be liable or responsible to the other Party, nor
be deemed to have defaulted under or breached this Agreement, for any failure or delay in
fulfilling or performing any term of this Agreement (except for any obligations to make
payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party's ("Impacted Party") reasonable control, including, the following force majeure events ("Force Majeure Events"): (a) acts of God;
(b)flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) order or action by any governmental authority or requirements of law; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other events beyond the reasonable control of the Impacted Party.
14. Assignment.
Buyer's rights, interests, or obligations hereunder may not be
assigned, transferred, or delegated by Buyer without the prior written consent of Seller. Any
purported assignment or delegation in violation of this Section is null and void. No assignment or
delegation relieves Buyer of any of its obligations under this Agreement.
15. Relationship of the Parties.
The relationship between the parties is that of
independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
16. No Third-Party Beneficiaries.
This Agreement benefits solely the Parties to this
Agreement. Nothing in this Agreement, express or implied, confers on any other person any
legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
17. Governing Law; Jurisdiction.
This Agreement is governed by, and construed in
accordance with the laws of the State of Minnesota without giving effect to any conflict of laws
provisions thereof that would result in the application of the laws of a different jurisdiction. All
legal proceedings shall be instituted in the state or federal courts of Hennepin County,
Minnesota. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts.
18. Notices.
All notices shall be in writing and addressed to the parties at the
addresses set forth on the face of the Order Confirmation or to such other address for either party as that party may designate by written notice. All notices must be delivered by nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested).
19. Severability.
If any term or provision of this Agreement is determined to be
invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or
unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Get the perfect fit you’re looking for
