Terms and Conditions – Bentek Corporation
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All sales made by Bentek Corporation (“BENTEK”) are made on the following terms and conditions:
I. DELIVERY AND ACCEPTANCE: Delivery shall be F.O.B. BENTEK’s Plant, San Jose, California. Shipping dates are approximate only. In the absence of specific shipping instructions, BENTEK will ship by the method it deems most advantageous. Transportation charges will be collected, or if prepaid, will be subsequently invoiced to BUYER. Unless otherwise indicated, BUYER is obligated to obtain insurance against damage to the material being shipped. Unless otherwise specified, products shall be shipped in standard commercial packaging. If BUYER explicitly specifies packaging requirements, it shall set forth in the Request for Quote. Cost of specialized packaging will be included in price quote.
2. PRICE: Quoted prices are valid for thirty (30) days from the quotation date. Prices are exclusive of all national, federal, state, municipal, local or any other governmental, excise, sales, use, occupational, or like taxes or duties now in force or enacted in the future. Any such tax, fee, or charge on, or measured by, the transaction between BENTEK and the BUYER shall be paid by the BUYER in addition to the prices quoted or invoiced. Bentek reserves the right to revise prices of components and raw materials in the event of market price variations.
3. CANCELLATIONS: This contract may be cancelled by BUYER only upon written agreement by BENTEK and the payment of reasonable cancellation charges, which shall include but not be limited to expenses already incurred for labor and material costs, overhead, commitments made by BENTEK, and a reasonable cost recovery. Cancellation charges are payable and due net thirty (30) days after the date of notice of cancellation.
4. CANCELLATION/RESCHEDULE: No cancellations or reschedules are permitted within forty-five (45) days of the scheduled delivery date. Unless Bentek designates a Product as “non-cancelable, non-returnable” (in which case BUYER shall have no reschedule or cancellation rights), BUYER may reschedule all or part of a scheduled delivery once for a period not to exceed forty-five (45) days.
5. CONFIDENTIAL INFORMATION: Where portions of the data supplied are proprietary to BENTEK, BENTEK retains for itself all proprietary rights in and to all designs, engineering details, and other data pertaining to any product sold or to data developed internally for the build of Buyers product by Bentek for Bentek except where rights are assigned under written agreement by a corporate officer of BENTEK.
6. CHANGE ORDERS: Request for changes to the product or performance requirements are usually evaluated within three (3) business days after receiving a written request. The evaluation period may vary depending on the complexity of the change request. The BUYER will be notified in writing of cost and schedule impact. BUYER must approve the adjusted price and schedule set forth in the change order or withdraw the change request before work on the original order continues. Changes must be agreed to in the form of an updated PO including, but not limited to, any pricing changes and revision changes.
7. NOTICES: Any notice5 given hereunder shall be in writing and shall be served by hand at, or by being sent by facsimile transmission or prepaid post, to the following addresses and numbers:
2350 Harris Way
San Jose, CA 95131
Attention: Mitch Schoch
President and CEO
Facsimile: (408) 954-9688
8. LIMITATION OF LIABILITY: BENTEK shall not be liable for any loss, damages or penalty resulting from delay in delivery when such delay is due to causes beyond the reasonable control of BENTEK, including but not limited to supplier delay, force majeure, act of God, labor unrest, fire, explosion, or earthquake. In any such event, the delivery date shall be deemed extended for a period equal to the delay.
10. SECURITY INTEREST: BENTEK hereby reserves a purchase money security interest in the products sold and the proceeds thereof, in the amount of its purchase price.
11. STANDARD WARRANTY: Bentek warrants equipment manufactured by it to be free from defects in materials and workmanship for eighteen (24) months from date of invoice by Bentek. If within such period, any such equipment shall be proved to Bentek’s satisfaction to be non-conforming, such equipment shall be repaired or replaced at Bentek’s option. This warranty shall not apply (a) to equipment not manufactured by Bentek (b) to equipment that has been repaired or altered by other than Bentek so as, in its judgment, to affect the same adversely, or (c) to equipment that has been subjected to negligence, accident, or damage by circumstances beyond Bentek’s control, or improper operation, maintenance or storage, or to other than normal use or service. With respect to equipment not manufactured by Bentek the warranty obligations of Bentek shall in all respects conform and be limited to the warranty actually extended to Bentek by its supplier. Non-conforming products must be returned at Bentek’s expense for evaluation unless this is waived in writing. Replacement products may be new or reconditioned. The foregoing warranties do not cover reimbursement for labor, transportation, removal, installation, temporary power, or any other expenses that may be incurred in connection with repair or replacement.
12. OPTIONAL WARRANTIES: (Only available on equipment to be located in the U.S.) Option l-Extended-2 to 5 years from shipment. If requested by the Purchaser and specifically accepted in writing by Bentek, the standard warranty will be extended up to two (5) years from date of invoice for a complete combiner box solutions price addition of 2% of the net face value of the Purchase Order or will be extended for three (3) years from date of invoice for a price addition of 3% of the net face value of the Purchase Order, to cover reimbursement of the direct costs of: a) Removal of non-conforming equipment or part thereof; b) Transporting equipment or parts to and from the place of repair; c) Off-loading of truck and reinstallation at the original site. Such special warranty, which may be chosen to cover a period not exceeding that of the standard or extended warranty (see above) selected, will not include the cost of providing temporary power or removing or replacing other apparatus or structures, or costs or transportation beyond a common carrier free delivery point in the continental United States. Further, the obligation of Bentek for expenses and costs arising under this special warranty coverage will not exceed 50% of the net invoice price on the equipment being repaired. This warranty does not change or affect the allocation of risk or loss during shipment.
Option 3-Extended Warranty-Preventative Maintenance Agreements: If requested by the Purchaser, and specifically accepted by Bentek, a Preventative Maintenance Agreement is available to provide preventative maintenance on equipment covered by the agreement. Terms of the preventative maintenance agreement shall be as defined in a separate Services Agreement agreed to by the parties.
13. SOFTWARE: Any software or computer information, in whatever form, provided with equipment manufactured by Bentek is licensed to Purchaser solely pursuant to standard licenses of Bentek or its supplier of such software or computer information, which licenses are, hereby incorporated by reference. Bentek does not warrant that such software or computer information will operate error free or without interruption, and warrants that only that during the warranty period applicable to the equipment that the software will perform its essential functions. If such software or computer information fails to conform to such warranty, Bentek will, at its option, provide an update to correct the non-conformance or replace the software or computer information with the latest available version containing a correction. Bentek shall have no other obligation to provide updates or revisions.
14. LIMITATIONS: These disclaimers and limitations of remedies apply to all warranties offered to Purchaser and to all Purchase Orders. THE WARRANTIES SET FORTH ABOVE ARE EXCLUSNE AND IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES (EXCEPT WARRANTIES OF TITLE), INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Except as may be expressly provided in an authorized writing by Bentek, Bentek shall not be subject to any other obligations or liabilities whatsoever other than as stated above with respect to equipment sold or services rendered by Bentek. Notwithstanding anything to the contrary herein contained Bentek Company, ITS CONTRACTORS AND SUPPLIERS OF ANY TIER, SHALL NOT BE LIABLE IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE FOR LOST TIME, LOST PROFITS, OR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER. The remedies of the Purchaser are exclusive and the total cumulative liability of Bentek, its contractors and suppliers of any tier, with respect to this contract or anything done in connection therewith, such as the use of any product covered by or furnished under the contract, whether in contract, in tort (including negligence or strict liability) or otherwise, shall not exceed the price of the product, part, or service on which such liability is based.
15. INTELLECTUAL PROPERTY: As to equipment proposed and furnished by Bentek, Bentek shall defend any suit or proceeding brought against Purchaser so far as based on a claim that such equipment constitutes and infringement of any copyright, trademark or patent of the United States.
This obligation shall be effective only if Purchaser shall have made all payments then due hereunder and if Bentek is notified promptly in writing and given authority, information, and assistance at Bentek’s expense for the defense of the same. In the event the use of such equipment by Purchaser is enjoined in such a suit, Bentek shall, at its expense, and at its sole option, either (a) procure for the Purchaser the right to continue using such equipment (b) modify such equipment to render it non-infringing (c) replace such equipment with non-infringing equipment, or (d) refund the purchase price (less depreciation) and the transportation and installation costs of such equipment. Bentek will not be responsible for any compromise or settlement made without its written consent. The foregoing states the entire liability of Bentek for patent, trademark or copyright infringement, and in no event shall Bentek be liable if any infringement charge is based on the use of Bentek equipment for a purpose other than for which it was sold by Bentek. As to any equipment furnished ·by Bentek to Purchaser and manufactured in accordance with designs proposed by Purchaser, the Purchaser shall indemnify Bentek against any award made against Bentek for patent, trademark, or copyright infringements.
16. ACCEPTANCE BY BUYER – ENTIRE AGREEMENT: The terms and conditions as set forth herein shall constitute the entire agreement between BENTEK and the BUYER. BENTEK shall not be bound by any terms of BUYER’s order, which are inconsistent’ with the terms herein set forth. Acceptance by BUYER of these terms may be made either by written acceptance or by receipt by BUYER of delivery of any products quoted.
This contract shall not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing not made a part of the contract by its express terms. The failure by BENTEK to enforce at anytime any of the provisions of this contract, or to exercise any election or option provided herein, shall in no way be construed as a waiver of such provisions or options, nor in any way to affect the validity of this agreement or any part thereof, or the right of BENTEK thereafter to enforce each and every such provision.
17. APPLICABLE LAW: The contract between the parties is made, governed by, and shall be construed in accordance with the laws of the State of California.
18. ERRORS: Stenographic and clerical errors are subject to corrections.
19. ATTORNEY’S FEES AND COSTS: Reasonable attorney’s fees and costs shall be awarded to the prevailing party in the event of litigation involving the enforcement, collection, or interpretation of this agreement or any request for shipment release issued and accepted under the terms and conditions of this agreement.
These terms supersede any other terms in effect during the life of the product, unless specifically agreed to by Bentek in writing.
Last Updated 3/13/15