Terms and Conditions of Sale
These terms and conditions constitute the terms and conditions applicable to Sales Orders issued by Brandon Industries, Inc. and Brex Industries, LLC d/b/a Brex Lighting (each a “Seller”), except to the extent that the Sales Order expressly provides to the contrary.
- These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (the “Goods”) by Seller to the buyer named on the Sales Order (“Buyer”).
- The Sales Order 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. These Terms prevail over any of Buyer’s general terms and conditions of purchase. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
- 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.
- Seller shall deliver the Goods in the quantities specified on the face of the Sales Order or as otherwise agreed in writing by the parties. Seller shall not be liable for any delays, loss or damage in transit.
- Seller may, in its sole discretion, without liability or penalty, make partial shipments of the 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 Sales Order.
- The quantity of any installment of the Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
- Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
- Title and Risk of Loss. Title and risk of loss passes to Buyer upon Seller’s delivery to and receipt by the carrier at Seller’s shipping point. All shipments are F.O.B. Seller’s shipping point.
- Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or delay in obtaining supplies of suitable materials, or telecommunication breakdown or power outage.
Inspection and Rejection of Nonconforming Goods.
- Buyer shall inspect the Goods within 5 days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Seller’s Sales Order; or (ii) product’s label or packaging incorrectly identifies its contents.
- 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 shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility located at 1601 Wilmeth Road, McKinney, Texas 75069. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replacement goods.
- Buyer acknowledges and agrees that the remedies set forth in Section 6(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods.
- Buyer shall purchase the Goods from Seller at the price set forth on the accepted Sales Order; provided, however, that Seller shall be bound as to purchase price only upon shipment and acceptance of all or any part of the Goods ordered.
- 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.
- Warranty. Except for the warranties set forth in Seller’s Limited Warranty (found on Seller’s website or in documentation provided with the Goods), Seller makes no warranty whatsoever with respect to the Goods. Seller’s Limited Warranty sets forth Buyer’s sole and exclusive remedies and Seller’s entire liability for any breach of warranty.
- Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION OR DAMAGE TO BUSINESS REPUTATION, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
- Compliance with Law. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligation under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any governmental import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
- 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 operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement 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.
- Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas.
- Dispute Resolution. Any controversy or claim arising out of or relating to this sale shall be mediated by a mutually agreed upon mediator in Dallas County, Texas. The cost of the mediation shall be shared equally. In the event the dispute is not resolved through mediation, any litigation shall be brought in Dallas County, Texas, which courts shall have the exclusive venue for and have exclusive jurisdiction over any such litigation. Buyer and Seller hereby expressly consent to the jurisdiction and venue of said courts.
- Indemnification. Buyer (“Indemnifying Party”) shall defend, indemnify and hold harmless Seller and Seller’s officers, directors, employees, contractors, agents, affiliates, successors and permitted assigns (each, an “Indemnified Party”) against any and all claims or damages of any kind, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder incurred by any Indemnified Party in connection with or arising out of any claim of a third party alleging: (i) any negligent or willful act or omission of Indemnifying Party or any of its officers, directors, employees, contractors, agents, affiliates, successors and permitted assigns; or (ii) any bodily injury or death of any person or damage to real or tangible personal property caused by the willful or negligent acts or omissions of Indemnifying Party or any of its officers, directors, employees, contractors, agents, affiliates, successors and permitted assigns.
- Severability. If any term or provision of this Agreement is 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.