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These Terms and Conditions of Sale (“Agreement”) apply to all offers made and orders
accepted by the Bratic Enterprises LLC (“BE”). Acceptance of customer’s (“Buyer’s”) order is
clearly recognized upon “Buyer’s” agreement to these terms and conditions excluding all other
terms and conditions.
Some of these terms may differ from those in “Buyer’s” order or offer, and some may be new.
“BE’s” failure to object to provisions contained in any communication from “Buyer” does not
waive the provisions of this Agreement, (supplemented by the non–conflicting terms
contained in these Terms and Conditions) shall govern the quotations and sales of products
purchased from “BE”.
“Buyer’s” failure to reject this Agreement within 10 days after receipt, or upon “Buyer’s ”
receipt of the goods or acceptance of the service, whichever occurs first, is “Buyer’s”
unconditional acceptance of these terms and conditions. No additions, deletions or
amendments to these terms and conditions will be binding without the written approval of
“BE”.
No order or Customer obligation may be cancelled, rescheduled, reconfigured, or assigned
without “BE” ́s prior written authorization and, in such event, customer will be liable to “BE” for
any additional costs and expenses incurred by “BE”. Prices are subject to change by “BE”
upon customer rescheduling or reconfiguration of orders. Prices are also subject to change in
response to supplier price increases or if a price has been quoted in error, whereupon
customer may cancel the undelivered portion of any affected order by delivering written notice
to “BE” prior to the shipment thereof and within 10 days of its receipt of notice of the price
increase.
Written quotations by “BE” automatically expire 15 days from the date of quotation and are
subject to termination within that period (as defined in the Uniform Commercial Code) and
prices include taxes, freight, handling, duty, tariffs or other similar charges, payment of which will
be the sole responsibility of customer. Prices are conditioned upon timely payment and any past
due balance will accrue interest at the monthly rate of one and one–half percent (1.5%). “BE”
reserves the right to change prices without notice. Prices are based on current economics
from the quoted date for labor and materials cost. “BE” reserves the right to add any
additional costs incurred due to material cost increases prior to completion of an order. “BE”
shall have no liability in respect oral quotation or under any oral agreement unless such
agreement is confirmed in writing by “BE” within 10 days thereafter. “Buyer’s” purchase order
upon receipt by “BE” is deemed an acceptance of “BE” quotation. You may receive an e–mail
or mechanized document from “BE” describing your order details. That e–mail ⁄ document
legally suffices as your purchase order. It will also represent “BE” ́s confirmation of your order.
“BE” reserves the right to correct errors in specifications or prices, due to typographical,
clerical, or engineering errors or because of incomplete or inaccurate information from
“Buyer”. “BE” may revoke its acceptance of such purchase order for any reasonable reason,
including your inability to provide “BE” with adequate comfort that you
(i) will comply with all relevant laws, such as export regulations, or
(ii) are, in “BE” ́s sole discretion, credit worthy. “Cash or anticipation discounts are not allowed. All payments must be in U.S. Dollars. New customers are required to submit one
(1) bank reference and (2) trade references for credit purposes.
Credit terms, shipments, deliveries, and performance of work are at all times subject
to the approval of “BE’s” credit department. “BE” may at any time decline to make any shipment or delivery or perform any work except upon receipt of payment or satisfactory credit terms and security. In the event of “Buyer’s” bankruptcy or insolvency, “BE” will be entitled to terminate any order then outstanding and to receive reimbursement for Termination under this Agreement.
Credit Card & Debit Card payments are processed by Paypal secure servers, An additional
4.6% fee will be applied when processing payments through Paypal. For your security,
please do not send your credit or debit card number by e-mail. Credit Card processing
process or service may change without notification.
Unless otherwise defined, payment terms for domestic orders are TT – In Advance (Wire
Transfer) or if required by “BE”, LC (irrevocable letter of credit) confirmed with “BE’s” bank
where the 100% of the project value is escrowed in progressive payment, as shown below in
#17 – Payment Terms.
Unless otherwise defined, payment terms for international orders are TT – In Advance (Wire
Transfer) or if required by “BE”, LC (irrevocable letter of credit) confirmed with “BE’s” bank
where the 100% of the project value is escrowed in progressive payment, as shown below in #
17 – Payment Terms.
Each shipment is a separate and independent transaction and “Buyer” must pay accordingly. In
the absence of prior agreement as to shipping, “BE” may select a carrier. ‘BE” ́s responsibility
for any loss or damage ends, and title passes, when products are delivered to the carrier, to
customer, or to customer ́s agent (including, without limitation, any test house or value added
service provider), whichever occurs first. Customer will pay for storage charges if “BR” holds
products at customer ́s request pending instructions or rescheduled delivery.
If “Buyer” delays shipment and payment has not been completed, payments will be due on
the date when “BE” is originally scheduled to make the shipment. If “Buyer” delays “BE’s”
work, “Buyer” must pay based on the purchase price and the percentage of completion.
Goods held for “Buyer” by “BE” are at the risk, expense, and in the title of “Buyer”.
Any software or other intellectual property included in or relating to products is supplied by its
manufacturer or licensor. “BE” makes no representation or warranty with respect thereto and
will have no liability in connection therewith, unless owned by “BE” or its subsidiaries.
Customer agrees to comply with all requirements with regard to proprietary and similar rights
in and to any intellectual property (including any requirement to enter into a separate license
agreement and prohibitions against duplicating or disclosing the same), even if “BE” has
broken the seal on any “shrink wrapped” software. If Customer provides “BE” with any
intellectual property, Customer warrants that it has all necessary legal rights to such property.
Customer will indemnify “BE” against and hold it harmless from any and all liability, cost or
expense arising from a breach or purported breach of the requirements described in this
section.
In order to defray the cost of customer account administration, any credit balance or other sum
owed to customer which remains unclaimed by customer for a period of twelve months will
become the property of “BE”.
All sales, use, excise or similar taxes or charges-applicable to the sale or use of any product or
the furnishing of any service shall be the “Buyer’s” responsibility, and “Buyer” will indemnify
“BE” against any liability hereunder. The “Buyer” must pay these amounts unless the “Buyer”
provides “BE” with a tax exemption certificate acceptable to the taxing authority.
When F.O.B. Shipping Terms apply, “BE” will add to the purchase price the amount of any
present import duty to the manufacturer’s goods under this “Agreement”.
When EXW Shipping Terms apply, the “Buyer” must provide “BE” with method of
transportation and details to ship product accordingly.
4. SHIPPING TERMS AND RISK OF LOSS
Unless otherwise defined, all domestic sales by “BE” are F.O.B. “BE” shipping place, as
defined by INCOTERMS 2000 and Uniform Commercial Code.
Unless otherwise defined, all international sales by “BE” are Ex Works (EXW) “BE”, as defined
by INCOTERMS 2000 and Uniform Commercial Code.
Risk of loss or damage to products shall pass to “Buyer” upon delivery to the first carrier
or “Buyer’s” representative. Apparent shortage or visual damage to shipping containers by
the carrier must be noted on both consignee’s and carrier’s delivery receipt or record.
Concealed damaged condition shall also be noted on the carrier’s delivery receipt or
record. The carrier’s local office and “BE” should be notified of the condition immediately,
but no later than 15 days after the date of delivery for preparation of an inspection report by
“Buyer” to support a possible claim.
Unless specifically agreed in writing by “BE” and “Buyer”, all equipment, tools, designs,
technical data, and computer software produced, acquired, or used by “BE” for this
“Agreement” are the property of “BE”.
“BE” provides commercial packing, packaging, and testing at the quoted prices. Any additional
requirements, including without limitation “Buyer’s” inspection, are at “Buyer’s” expense.
The goods under this Agreement are furnished with commercial inspection standards at the
place of manufacture. If “BE” and “Buyer” agree that “Buyer” is to inspect at the place of
manufacture, that inspection may not interfere unreasonably with “BE’s” operations, and the
“Buyer” must accept or reject the goods before shipment.
“Buyer” will promptly notify “BE” of nonconformance in the goods and give “BE” a reasonable
opportunity to inspect the goods. No goods may be returned without “BE’s” written
authorization.
Failure to follow “BE’s” return procedures could result in lost goods, delays, additional service
charges, warranty denial, or refusal of a shipment. Buyer must mark all goods returned to “BE”
with a return authorization (RA) number furnished by ‘BE”. The RA number must appear on the
shipping label and all paperwork associated with the return.
Granting a return authorization does not mean that a credit will be approved or that the
evaluation or repair will take place without charge. “BE” may, at its sole discretion, agree to
allow “Buyer” to return products for credit subject to a minimum 25% restocking charge, if
applicable, which “Buyer” agrees to pay. No returns may be made for any reason without a
Return Authorization Form issued by “BE”. If customer refuses to accept tender or delivery of
any products or returns any products without authorization from “BE”, such products will be held
by “BE” awaiting customer ́s instruction for 20 days, after which “BE” may deem the products
abandoned and dispose of them as it sees fit, without crediting customer ́s account.
Returned items must be in the original shipping containers. Any custom demo/sample
purchases, or any other item considered custom is not returnable for credit.
“BE” will not be liable for any failure or delay in its performance or in the delivery or shipment of
products, or for any damages suffered by customer by reason of such failure or delay, when
such failure or delay is caused by, or arises in connection with, any fire, flood, accident, riot,
earthquake, severe weather, war, governmental interference or embargo, strike, shortage of
labor, fuel, power, materials or supplies, delay in delivery by “BE”’ suppliers or any other cause
or causes beyond “BE” ́s reasonable control. “BE” reserves the right to cancel without liability
any order, the shipment of which is or may be delayed for more than 30 days by reason of any
such cause. “BE” reserves the right to allocate in its sole discretion among customers or
potential customers, or defer or delay the shipment of, any product which is in short supply.
UNAUTHORIZED RETURNS WILL NOT BE ACCEPTED AND WILL BE RETURNED TO
SENDER AT THEIR EXPENSE.
If “BE” determines that the goods are not covered by warranty (see Section 11, Limited
Warranty), a purchase order for “BE’s” usual charges must be received before repair or
replacement. “BE” reserves the right to dispose of the goods if the “Buyer” does not promptly
pay the evaluation fee and related charges.
“BE” shall have no duty to stock or provide spare or replacement parts or products. “BE” may
modify or discontinue any product or line of products at any time without liability except to
refund any amounts already paid for any such products which have been ordered but not
yet delivered.
Shipping dates and lead-times are approximate and require prompt receipt of all necessary
information from Buyer. If delays arise, “BE” will notify “Buyer” and “BE” will not be liable for
any damages (liquidated or otherwise), re-procurement costs, cover, or penalties. “BE is
not liable for delays due to International Holidays, weather conditions, acts of God, acts of
civil or military authorities, fires, strikes, job actions, floods, earthquakes, epidemics,
quarantine restriction, war, terrorism, riot, customs hold, supplier or vendor delays , or any
other causes beyond the reasonable control of “BE”. In the event of delay, “BE” will
reschedule delivery for a period that accounts for the time lost because of the delay. If an
excusable delay under force majeure continues for more than 6 months, “BE” and “Buyer”
each may cancel the affected purchase orders under Section 10, Termination, Change,
Refusal and Suspension of Orders.
If “BE’s” production is reduced for any of the above reasons so that “BE” does not deliver the
full amount ordered, ‘BE” may allocate production deliveries among its various customers
then under contract for similar goods. The allocation will be commercially fair and
reasonable and ‘BE” will notify “Buyer” of the estimated quota made available.
Termination of Order, “Buyer” may request to terminate order for convenience in whole or
part and “BE” agrees to cooperate with “Buyer” to arrange a termination plan subject to
“Buyer” paying for deliveries made, full direct, and indirect costs, settlements with suppliers,
related administrative, accounting, and legal costs and fees, plus a normal profit.
Termination request will not be effective unless “BE” consents in writing to the termination.
Change of Order: “Buyer” may request Change of Order in writing within (20) days prior to the
shipment date. Change request will not be effective unless “BE” consents in writing to the
change. The delivery schedule must be modified in writing to account for the Change of
Order, and an equitable adjustment will be made in the price if “BE’s” costs increase because
of the Changes.
Refusal of Order: If “Buyer” refuses delivery within ten (45) days of shipment, then “Buyer”
will be responsible for all related charges:
If any termination, change or refusal of order causes an increase or decrease in the cost of,
or in the time required for, performance of an order, an equitable adjustment will be made in
the order’s price (direct costs, indirect costs, raw materials, stock, work-in-process,
settlements with suppliers, related administrative, accounting, and legal costs and fees, plus
a normal profit materials), terms, delivery schedules, and released shipments which “BE” or
its Affiliates cannot cancel without liability.
“BE” will recognize “Buyer’s” written one-time request to suspend production for a maximum
of thirty (30) days. The delivery schedule must be modified in writing to account for the
production stoppage, and an equitable adjustment will be made in the price if “BE’s” costs
increase because of the suspension.
“BE” retains a purchase money security interest in all products sold by “BE” to customer, and
in the proceeds of any resale of such products, until the purchase price and any other
charges due to “BE” have been paid in full. Upon any breach by customer of these terms and
conditions, “BE” will have all rights and remedies of a secured party under applicable law,
which rights and remedies will be cumulative and not exclusive. Customer is responsible for
all costs and expenses incurred by “BE” in collecting any sums owing by customer (which
may include, but are not limited to, collection agency and reasonable attorneys ́ fees). “BE”
shall have the right to offset any sum owed by “BE” to Customer against any sum owed by
Customer to “BE”.
“BE” warrants those products assembled or customized by it against defects caused solely by
faulty assembly or customization for 10 days after delivery, unless otherwise specified or
negotiated, from the date of original shipment F.O.B. Suppliers of products, manufacturing,
assembled or customized will follow manufacturers warranties and “BE” will support resolution
of any defects caused solely by faulty assembly or customization for 10 days after delivery,
unless otherwise specified or negotiated, from the date of original shipment F.O.B. All other
products, and the components and materials utilized in any assembled or customized
products, are covered by, and subject to, the terms, conditions, and limitations of the “BE”
and/or manufacturer ́s standard warranty, which warranty is expressly in lieu of any other
warranty, express or implied, of or by “BE” or the manufacturer.
If “Buyer” finds any defects in material or workmanship, Buyer will promptly notify “BE” in
writing of the defective goods and the specific nature of the defect.
“BE” at its sole discretion will repair or replace any such goods found by “BE” to be defective
after authorized return by “Buyer”. “Buyer” will return defective goods, with transportation
and insurance prepaid, in accordance with instructions issued by “BE” under Section 6,
Return Authorizations. “BE’s” warranty does not apply to any goods that have been
subjected to improper installation, misuse, alteration, repair, neglect, accident, inundation,
fire, or the like. “BE” and manufacture bear no responsibility for cost associated with labor
for product installation, replacement, lift equipment, site delays, etc.
Customer acknowledges that except as specifically set forth or referenced in this paragraph,
THESE EXPRESS WARRANTIES, INCLUDING REMEDIES, ARE EXCLUSIVE AND ARE IN
LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. “BE” DISCLAIMS
ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND (INCLUDING,
WITHOUT LIMITATION, IN ADVERTISING MATERIALS, BROCHURES, OR OTHER
DESCRIPTIVE LITERATURE) BY “BE” OR ANY OTHER PERSON, EXPRESS OR IMPLIED,
AS TO THE CONDITION OR PERFORMANCE OF ANY PRODUCTS, THEIR
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE.
FOR GOODS MADE BY OTHERS, “BE” MAKES NO WARRANTIES, EXPRESS,
STATUTORY, OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FREEDOM FROM PATENT INFRINGEMENT AND FITNESS FOR A
PARTICULAR PURPOSE. THE ORIGINAL MANUFACTURER MAY WARRANT THESE
GOODS.
THERE ARE NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY
WARRANTY OR MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
“BE” ASSUMES NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR
MANUFACTURER’S PRODUCT SPECIFICATIONS OR THE PERFORMANCE OR
ADEQUACY OF ANY DESIGN OR SPECIFICATION PROVIDED TO “BE” BY OR ON BEHALF
OF CUSTOMER.
Except for the warranty coverage referenced in the paragraphs, above, NEITHER “BE” NOR
ITS SUPPLIERS WILL HAVE ANY LIABILITY OR OBLIGATION TO CUSTOMER OR ANY
OTHER PERSON FOR ANY CLAIM, LOSS, DAMAGE, OR EXPENSE CAUSED IN WHOLE
OR IN PART, DIRECTLY OR INDIRECTLY, BY THE INADEQUACY OF ANY PRODUCTS FOR
ANY PURPOSE, BY ANY DEFICIENCY OR DEFECT IN ANY PRODUCT (WHETHER OR NOT
COVERED BY ANY WARRANTY), BY THE USE OR PERFORMANCE OF ANY PRODUCTS
OR BY ANY FAILURE OR DELAY IN “BE” PERFORMANCE HEREUNDER, OR FOR ANY
SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE
DAMAGES, HOWEVER CAUSED, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY
OR LOSS OF BUSINESS OR PROFIT, WHETHER OR NOT CUSTOMER WILL HAVE
INFORMED “BE” OF THE POSSIBILITY OR LIKELIHOOD OF ANY SUCH DAMAGES.
The performance of any value-added service by a third party may void the manufacturer ́s
warranty and render products nonreturnable. Orders incorporating such services are,
accordingly, non-cancelable and the products are nonreturnable. Any third-party value-added
service provider is deemed to be an agent of customer.
Each party will hold harmless and indemnify the other party against all claims, judgments,
costs and fees, including attorney fees, relating to infringement of U.S. patents, designs,
copyrights, or trademarks to the extent that the infringing goods are manufactured, sold, and
used in whole or in part to the indemnifying party’s specifications.
To the extent that one party’s employees or agents enter on the property owned or controlled
by the other party, the first party will hold harmless the other party, its officers, directors, and
employees for any property damage or personal injury or death caused by the first party’s
employees or agents.
In all cases, “Buyer” will hold harmless and indemnify “BE” against all claims, judgments,
costs and fees, including attorney fees relating to actions initiated and claims made by third
parties for property damage and personal injuries, including death, when any product made
pursuant to this Agreement is manufactured in whole or in part to “Buyer’s” designs.
Provided, however, indemnification and hold harmless does not apply where the product
defect is caused solely by a manufacturing process, assembly operation, or the negligence
of “BE”.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS ORDER, UNDER NO
CIRCUMSTANCES IS EITHER PARTY LIABLE FOR ANY CONSEQUENTIAL, SPECIAL,
INCIDENTAL, INDIRECT, COINCIDENTAL, MULTIPLE, ADMINISTRATIVE, OR PUNITIVE
DAMAGES, OR ANY DAMAGE OF AN INDIRECT OR CONSEQUENTIAL NATURE
ARISING OUT OF OR RELATED TO ITS PERFORMANCE UNDER THIS CONTRACT,
WHETHER BASED UPON BREACH OF CONTRACT, WARRANTY, OR NEGLIGENCE
AND WHETHER GROUNDED IN TORT, CONTRACT, CIVIL LAW, OR OTHER THEORIES
OF LIABILITY,
INCLUDING STRICT LIABILITY, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY
OF SUCH DAMAGES. “BE’S” TOTAL LIABILITY INCLUDING BUT NOT LIMITED TO
LIABILITY FOR INDEMNITY, DEFENSE, AND HOLD HARMLESS OBLIGATIONS DOES
NOT EXCEED THE AMOUNT PAID TO “BE” UNDER THIS ORDER AND “BUYER”
AGREES TO INDEMNIFY “BE” FOR ANY AMOUNTS IN EXCESS. TO THE EXTENT
THAT THIS LIMITATION OF LIABILITY CONFLICTS WITH ANY OTHER PROVISIONS OF
THIS CONTRACT, THOSE PROVISIONS ARE AMENDED AS REQUIRED TO MAKE
THEM CONSISTENT WITH THIS LIMITATION OF LIABILITY.
Any action for breach of this contract must be commenced within six (6) months after the
cause of action has accrued.
This agreement shall be governed by the laws of the State of Michigan. “Buyer” consents to
personal jurisdiction over it with respect to any dispute arising hereunder in the courts of the
State of Michigan (without regard to the conflicts of law provisions thereof). Any suit, action or
proceeding to enforce rights under these Terms and Conditions or any related Order
Confirmation may be brought only in the United States District Court for the Eastern District of
Michigan or the Superior Court of the State of Michigan. The parties irrevocably submit to the
personal and subject matter jurisdiction of such courts with respect to any dispute relating to
these Terms and Conditions and/or any related Order Confirmation, and the parties expressly
waive their respective rights to have any such action tried by jury.
In the event that one or more provisions of this Agreement is held to be unenforceable, the
remaining provisions apply in full and the invalid or unenforceable provision will be replaced
by a provision which lawfully enforces the parties’ intention underlying the invalid or
unenforceable provision.
“BE” is committed to uncompromising ethical standards, strict adherence to law and to
customer satisfaction. We encourage you to communicate concerns, as well as ask
questions, about ethics and values to the “BE” Managing Director.
This “Agreement” is the final, complete, and exclusive statement of the agreement between
‘BE” and the “Buyer”. This “Agreement” supersedes all previous and contemporaneous
understandings or agreements. This “Agreement” may be amended or modified only in
writing by authorized representatives of “BE”. This document, and not any purchase order or
other customer document (which, if construed to be an offer is hereby rejected), will be
deemed an offer or counteroffer and is a rejection of any other terms or conditions. Customer,
by accepting any products, making any payments or ordering any products having previously
received these terms and conditions, will be deemed to have assented to these terms and
conditions, notwithstanding any terms contained in any prior or later communication from
customer and whether or not “BE” will specifically or expressly object to any of customer ́s
terms. “BE” ́s failure to object to any document, communication or act of customer will not be
deemed a waiver of any of these terms and conditions. Any addition or change to these terms
and conditions must be specifically agreed to in writing by a duly authorized officer of “BE”
before becoming binding on “BE”.
I have read and understood and will abide by the Terms and Conditions of Sale as described
above.
Progressive Payments Details/Schedule:
Part 1 (Power Generation/Power Cabinet/Dispenser/Ports)
1. Materials: 50%, of material value at contract execution
2. Materials: 50%, totaling 100% balance of material value at time of deployment
Part 2 (Design/Engineering/Install/Commissioning/Warranty/Shipping/Taxes/Duties)
1. 40%, at initial time of development
2. 30%, at time of 50% development completion
3. 20%, at time of 100% development completion
4. 10%, at time of completion
