Terms and Conditions – Bentek Corporation

PDF version: Download the Bentek Warranty/Terms & Conditions of Sale

 

All sales made by Bentek Corporation (“BENTEK”) are made on the following terms and conditions:

  1. LIMITED STANDARD WARRANTY: Bentek warrants equipment manufactured by it to be free from defects in workmanship for an agreed upon period as defined in the purchase order. If within such period, any such equipment shall be proved to Bentek’s satisfaction to be non-conforming per the approved drawings, 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, (d) damaged by equipment not supplied by Bentek, (e) used in a manner contrary to the user manual for the equipment. . With respect to material components (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 the component 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. This warranty is valid provided all invoices are paid by their maturity dates; otherwise, no warranty claims will be honored until such time all outstanding invoices are acknowledged as paid. The required product maintenance (as described in the product user manual) must be followed and documented to maintain the warranty. Maintenance records must be provided with any warranty claim. Any modification made to the product after delivery must follow the proper guidelines which are available by contacting Bentek Customer Support. Failure to follow these guidelines may void the warranty.
  1. EPIDEMIC FAILURES: An Epidemic Failure which is specifically defined as Component failures (i) having the same or similar cause, verified by Bentek, and/or an independent third party on behalf of Buyer (ii) occurring within the contractual warranty period (iii) resulting from defects in workmanship, and/or design (iv) having a rolling three (3) month failure rate equal to or in excess of three percent (3%); where the failure rate is calculated by dividing the number of component failures by the total number of installed components. In addition to actions noted in the standard warranty, Buyer may request Bentek to send a representative to the project location to observe, inspect, and/or otherwise evaluate the site, construction procedures, working conditions, etc. to help make a determination on the root cause. Buyer will be required to issue a purchase order to cover travel costs (to and from project site), any specialized equipment required at the project site and field service charge of $150 per hour (estimated hours to be agreed upon in advance, but subject to change); with a minimum charge of $5000.00 per event. If the failure is confirmed to be the fault of the Bentek, then the purchase order will be considered void and remedies as described in the limited standard warranty will apply; if the failure is confirmed to be the fault of the Buyer, Buyer will be invoiced for the costs associated with field service call (as noted above), if applicable.
  1. 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 EXCLUSIVE 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
  1. DELIVERY AND ACCEPTANCE: Delivery shall be FCA 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. Upon delivery, shipment to be inspected for damage and product quantity verified against the shipping documentation (packing list, invoice, bill-of-lading, etc.). If any damage or discrepancies are noted; Bentek Customer Support (customersupport@bentek.com) must be notified immediately.  If product is to be stored for any period of time, the guidelines shown in Exhibit A must be followed; failure to follow these guidelines may void the warranty.
  1. PRICE: Quoted prices are valid for thirty (30) days from the quotation date unless otherwise noted on quotation. 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.
  1. TERMS OF PAYMENT: Terms are net thirty (30) days after shipment. On any invoice not paid by maturity date, BUYER shall pay interest from maturity to date of payment at the rate of 1.0% per month.
  1. CANCELLATIONS: No cancellations are permitted within forty-five (45) days of the scheduled delivery date. If the scheduled delivery is outside of the 45 day window, this order 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. If BENTEK designates a Product as ‘non-cancelable, non-returnable’ (NCNR) the BUYER shall have no cancellation rights.  Cancellation charges are payable and due net thirty (30) days after the date of notice of cancellation.
  1. RESCHEDULES: No reschedules are permitted within forty-five (45) days of the scheduled delivery date; outside of this period BUYER may reschedule all or part of a scheduled delivery once for a period not to exceed forty-five (45) days.
  1. 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.
  1. 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.
  1. NOTICES: Any notices 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:

Bentek

1991 Senter Road

San Jose, CA 95112

Attention: Mitch Schoch

President and CEO

Facsimile: (408) 954-9688

 

  1. 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.
  1. 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.
  1. 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.
  1. SHIPPING SCHEDULE & STORAGE: Bentek will make reasonable efforts to align the production and/or shipments dates with the Customer’s requested need dates. Within five (5) business days of purchase order acceptance, the drawings (combiner and/or parallel harnesses) and/or wire harness assembly length lists will be submitted to Customer for review and approval.  Within two (2) weeks of the approval of the drawings/wire lists, Bentek will establish a production schedule and provide confirmation to the Customer.  In the event Bentek’ s production and/or shipment dates precede the agreed upon schedule, or if the Customer extends or delays their requested need dates, Bentek will make arrangements to store and insure the finished products at no cost to the Customer for a maximum of 90 days.  Customer will be obligated to either a) make a progress payment amounting to 25% of the full purchase order (which is in addition to the 25% progress payment due at time of the order, or b) assume ownership/title of the products upon the date of invoice issuance, which corresponds to the full purchase price of the finished product. Customer shall make payment of the Invoice strictly in accordance with the agreed upon terms of sale without defense, offset, deduction, recoupment or counterclaim of any kind arising from the fact that the Bill and Hold Goods may not yet have been delivered to Customer. During this storage period, the Customer has the option to ship some or all of the finished products according to the agreed upon terms. Bentek will cover any shipping costs up to the amount specified on the purchase order. Any additional shipping costs incurred beyond the specified amount will be the responsibility of the Customer.  If the Customer needs to extend the shipment dates beyond the initial 90-day storage period, they will be responsible for the storage costs incurred during this extended period.
  1. 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 any time 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.
  1. 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.
  1. ERRORS: Stenographic and clerical errors are subject to corrections.
  1. 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.

 

EXHIBIT A

Storage and Handling Guidelines

 

  • The receiving party must ensure all products are stored in such a manner to keep them free from extreme weather, temperature, or physical damage and cared for properly to ensure the products will be in working condition and ready for installation. Improper storage, care and/or handling will void the warranty.
  • Damage occurring after the delivery of the product is not Bentek’s responsibility and is not covered by Bentek’s warranty. Proper handling during installation must be exercised; damage that occurs during installation is not covered under Bentek’s warranty.
  • Products must remain in the original packaging (as received) until installation.
  • Products must be stored in such a manner to prevent entry of water, moisture, debris, animals, insects, etc. Do not allow direct contact with the ground except for brief periods during the installation process.
  • Combiners and/or disconnects are electrical carrying systems and should be handled accordingly. All openings (conduit cutouts, open glands/cord grips, etc.) must remain covered until installation is complete. Enclosure doors must remain closed and latched unless access to the internal connections is actively required.
  • Ensure connectors on combiner whips and wire harnesses are protected from water/moisture/dirt. Connector covers should not be removed until installation.  All connectors must be inspected prior to installation to ensure they are free from debris and/or moisture.

 

 

Last Updated 7/21/2023