GENERAL TERMS AND CONDITIONS OF SALE

PARTIES. "Seller" shall mean The Behler-Young Company. "Buyer" shall mean the entity or person submitting the purchase order to Seller.

ACCEPTANCE. All transactions are exclusively governed by the General Terms and Conditions of Sale posted on Seller’s website: www.behler-young.com, Terms and Conditions of Credit, and the terms and conditions stated on invoices, statements, pick-tickets and delivery tickets (collectively referred to as the “Terms and Conditions”).  Seller rejects any terms or conditions referenced in Buyer’s purchase orders or other documents, that are in any way inconsistent with the Terms and Conditions. Buyer acknowledges and agrees that these Terms and Conditions are incorporated in, and are a part of, each contract, agreement, account, purchase order, release, requisition, work order, shipping instruction, specification and other document, whether expressed verbally, in written or electronic form, relating to the products and/or services to be provided by Seller to Buyer, and that Seller's acceptance of Buyer's offer to purchase is made conditional upon the incorporation of these Terms and Conditions into the contract.  Buyer shall be deemed to have accepted the contract including the Terms and Conditions in their entirety without modification. Any additions to, changes in, modifications or revisions to the applicable Terms and Conditions shall require the written consent of an authorized representative of Seller. All stenographic and clerical errors are subject to correction by Seller.

 

SALES POLICY-WHOLESALE ONLY. Generally, Seller only sells to duly licensed contractors. Identification may be required of purchasers. Seller reserves the right to limit the sale of selected products to firms and/or individuals that have demonstrated a minimum level of competence with these selected products because of the complex electrical and mechanical technology of some equipment. Seller will only sell to firms or individuals who have completed an acceptable training program, or have otherwise demonstrated that they have experienced and competent personnel to install and service such equipment. Neither Seller nor its employees are licensed installers or system designers and are not authorized to provide any assistance that requires a license. All responsibilities for system design, engineering, equipment selection, and installation rest with the Buyer.

 

QUOTATIONS. All quotations must be in writing, specifying quantities and other essential information and signed by an authorized representative of Seller. Quotation expire after 30 days unless otherwise stated by Seller. Seller has the right to withdraw any quotation which has not been accepted by Buyer. Quotations are subject to prices and other terms prevailing at the time of shipment.

 

RESERVATION.  Regardless of the establishment of any credit line, Seller retains the discretion to reject any order, at any time for any reason or no reason. In no way shall Buyer’s liability be limited to the amount of the credit granted by Seller.   

 

PAYMENT TERMS. For Buyers with established credit, terms are Net 10th Prox, with Prox defined as the 10th day of the following month and with End of Month defined as the last working day of each month. Seller accepts the following methods of payment at point of purchase: cash, money order, check, American Express, MasterCard, and VISA. All payments must be made in U.S. dollars. A time price differential finance/service charge of 1.5 % per month (18% per annum) or the maximum amount permitted under law, if less, will be applied to any balance past due (“Service Charges”). Buyer agrees to pay all costs and expenses, Service Charges, actual attorney fees and expert fees, incurred by Seller in exercising any of its rights arising out of the contract, Terms and Conditions, guaranty, and/or applicable statutes, including but not limited to any action to enforce the Terms and Conditions and collect any and all sums due. Buyer agrees to the assessment of, and to pay all statutory penalties and damages.  Buyer agrees to pay any and all fuel surcharges added to individual invoices.  Seller reserves the right at any time to suspend credit, change credit terms or terminate the Agreement or any purchase order, when, in Seller's sole opinion, Buyer's financial conditions so warrants. Buyer shall have no right to offset any amounts due or to become due to Seller against any claims, charges, expenses, fees or other payments of any kind whatsoever under any circumstances, including, but not limited to, any liability which may arise due to any breach or alleged breach of the contract or any provision thereof. All NSF checks returned to Seller will be subject to a $50 NSF fee, plus all applicable statutory penalties, costs, service charges, and actual attorney fees. Seller may assign and/or sell any receivables or indebtedness owed by Buyer without notice. Unless specifically directed in writing, all payments will be applied to outstanding invoices in an order determined appropriate by Seller in its sole discretion, without prejudice to Seller’s claims, or effect on the duty of Buyer, its principals and guarantors pursuant to MCL 570.151 et seq. or the contractual trust.  All Seller’s claims against Buyer, his/her/its principals and guarantors, may be brought within 6 years of accrual.  Buyer waives all defenses based on statutes of limitation or repose, which are less than 6 years from the date of claim accrual. 

 

CONTRACTUAL/STATUTORY TRUST AND FIDUCIARY OBLIGATIONS.  All purchases are subject to MCL 570.151 et seq., and the following contractual trust/fiduciary obligations.  Any and all material, equipment, and/or services, received from Seller, and any proceeds, funds, or payments received by Buyer from jobs/projects on which the material, equipment, and/or services, were sold, used or incorporated, are expressly held in trust by Buyer, its principals and guarantors, for the benefit of Seller, until Seller has been paid in full.  Use of any proceeds, funds, or payments received by Buyer from jobs/projects/business upon on which the material, equipment, or services, were sold, used or incorporated, before Seller has been paid in full, shall constitute a breach of trust and the Buyer’s fiduciary duties, and defalcation of trust funds in violation of the contract and applicable statutes by Buyer, its principals and guarantors. Buyer, and his/her/its principals and guarantors affirm that he/she/it is aware of and will comply with all State laws (including, but not limited to, MCL 570.151 et seq.) requiring Buyer to first use the proceeds, funds, or payments received from jobs/projects/business on which Seller’s material, equipment, and/or services, were incorporated, to pay Seller as a beneficiary of the trust funds received.  Buyer and his/her/its principals and guarantors acknowledges his/her/its fiduciary duty to use any proceeds, funds, or payments received from jobs/projects/business on which Seller’s material, equipment, and/or services, were incorporated, to first pay Seller and that failure to do so constitutes defalcation and conversion of trust funds. Any debt that arises out of the breach of the trust and/or defalcation of the material, equipment, services, and/or any proceeds, funds, or payments received by Buyer, including but not limited to all costs, Service Charges, actual attorney fees, and statutory penalties and damages, is non-dischargeable in bankruptcy.

LIMITED WARRANTY. The warranty obligations of Seller for products, parts, or services manufactured or provided by others and merely sold by Seller shall in all respects conform and be limited to the warranty extended by the manufacturer. Buyer’s sole and exclusive remedy in connection with products sold by Seller is against the manufacturer or other suppliers of such products. Buyer agrees that if products sold hereunder are resold by Buyer, Buyer will include in the agreement for resale provisions which limit recoveries in accordance with these General Terms and Conditions. In case of Buyer's failure to include in any such agreement for resale the terms providing for such limitations, Buyer shall indemnify and hold Seller harmless against any liability, loss, cost, damage, or expense (including reasonable attorney's fees) arising out of or resulting from such failure. Seller's entire and exclusive liability and Buyer 's exclusive remedy for any claims in connection with the sale of services, products, their design, suitability for use or operations under the warranty is limited, to the replacement, repair or modification of, or issuance of a credit for the purchase price of the products. All product shipping expenses and labor, travel, and per deim expenses for repair personnel travel, lodging and labor expenses shall be paid by Buyer. This warranty is of no effect and shall be void if such products claimed to be defective or any part or component thereof shall have been improperly repaired, altered, installed or operated or subjected to misuse, negligence or accident.  Any warranty claim must be addressed to Seller in writing setting forth sufficient detail to permit identification of the defect and be made no later than the expiration of the applicable warranty period. No employee or agent of Seller is authorized to make any warranty other than that which is specifically made by the manufacturer. ALL OTHER OBLIGATIONS, LIABILITIES, OR WARRANTIES OF ANY KIND OR DESCRIPTION, WHETHER EXPRESS OR IMPLIED IN FACT OR BY LAW, INCLUDING ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHERWISE, ARE HEREBY EXPRESSLY DISCLAIMED, WAIVED, AND EXCLUDED FROM THE CONTRACT. SELLER DOES NOT GUARANTEE THAT ANY PRODUCTS PURCHASED HEREUNDER MEET BUYER'S SPECIFICATIONS OR INTENDED USE. Failure to consult applicable codes for approved installation, use, storage and repair procedures and precautions may result in property damage, injury or death.

INSPECTION AND ACCEPTANCE. Buyer shall have three (3) business days from the date of delivery to inspect such products for defects and nonconformance and notify Seller, in writing, of any defects, nonconformance or rejection of such products (other than defects or nonconformities due to damage, shortage or errors in shipping which shall be reported as set forth below). Claims for shipping errors or shortages must be made in writing to Seller no more than three (3) business days after receipt of shipment. After such period, Buyer shall be deemed to have irrevocably accepted the products, if not previously accepted. After such acceptance, Buyer shall have no right to reject the products for any reason or revoke acceptance. Claims for damage due to shipping must be made by Buyer to the freight carrier.

RETURN OF PRODUCTS. No goods or materials may be returned for credit without prior written authorization. No material will be picked up from a Buyer without a properly written return authorization from Seller. All returns will be pursuant to Seller's instructions. All returns must reference the original invoice number, date of purchase, and the reason for return. Materials must be in resalable condition. No returns will be accepted beyond 14 days after the delivery. Non-warranty returns of normal stock products that are unused and are in resalable condition will be subject to Seller's return policies in effect at the time, including applicable restocking, handling and transportation charges and other conditions of return.  A minimum handling charge of 15% of the cost of the product or $5.00, whichever is greater, will be charged on all returns. In-warranty material must be properly tagged in accordance with the original manufacturer’s policies. Purchase orders for special, custom or non-stock items may not be cancelable/returnable and may be subject to a cancellation or return charge of 100% of the original cost of the product, at Seller’s discretion.

WARRANTY RETURNS.  Buyer must provide all necessary information regarding the sale and installation of product. When the unit has been installed, written authorization from Seller or the manufacturer may be required prior to removal.

FREIGHT CLAIMS. All claims for materials delivered via common carrier or small parcel carrier must be made with the freight company. 1) Carefully inspect all packages for damage. Match all parts to the packing list for shortages or missing pieces. 2) Note any damage or shortage on the freight bill and have the driver sign it. 3) Notify Seller with the complete information regarding the shipment. 4) Contact the freight company and ask that an inspection be made for damaged merchandise. Keep a copy of the inspection report for the claim. 5) File the claim promptly.

SALES TAX. Seller is required by law to charge applicable taxes to all customers for whom a Sales Tax Exemption Certificate has not been provided.

DELIVERY. Seller reserves the right to charge a delivery fee, at Seller’s sole discretion. At Seller’s discretion, shipments may be made on a regular delivery date via common carrier with freight prepaid in lieu of delivery on Seller’s trucks. Shipments requested on dates other than Seller’s regular delivery schedules will be made FOB seller’s warehouse. Small orders may be shipped by small parcel carrier of Seller’s choice with shipping charges added along with a $2 handling fee. Any shortage or damage to materials delivered on Seller’s trucks must be reported to the driver or reported to Seller’s delivering location within 24 hours Seller is not liable for any delay in delivery.  

INDEMNIFICATION. Buyer agrees to defend and indemnify Seller, its employees, officers, directors, agents, successors and assigns against any and all claims for damages, claims, suits, penalties, actions, costs and expenses, including reasonable attorneys' fees ("Losses") related to or arising out of (a) the information furnished by Buyer; (b) the sale of products which are in accordance with the specifications furnished by Buyer; or (c) Buyer's negligence or willful misconduct; provided that the foregoing indemnification shall not apply to Losses arising solely out of Seller's willful misconduct or gross negligence. SELLER PROVIDES NO INDEMNITIES RELATIVE TO ANY THIRD-PARTY PRODUCTS OR SERVICES RESOLD BY SELLER.

DISCLAIMER AND LIMITATION OF LIABILITY. To the fullest extent permitted by applicable law, Seller will not be liable for any form of incidental, indirect, special, punitive or consequential damages of any kind, including but not limited to claims for business interruption or loss of profit, revenue, materials, anticipated savings, data, contract, goodwill or the like (whether direct or indirect in nature). Seller's maximum cumulative liability relative to all other claims and liabilities, whether or not insured, including obligations under any indemnity, will not exceed the cost of the product(s) giving rise to the claim or liability. Seller disclaims all liability relative to gratuitous information or assistance provided by, but not contractually required of Seller. Seller disclaims all liability arising out of system design, engineering, equipment selection, and installation of any product.  Any action against Seller must be brought within twelve (12) months after the cause of action accrues. These disclaimers and limitations of liability will apply regardless of any other contrary provision hereof and regardless of the form of action, whether in contract, tort (including negligence and strict liability) or otherwise, and further will extend to the benefit of Seller's employees, representatives and suppliers as third-party beneficiaries. Seller is not liable for any defects, claims, liability, loss, or expense asserted or incurred as a result of default, negligence, or wrongdoing of Buyer, Buyer’s employees, customer, subcontractors or any other agent of Buyer. Each provision hereof which provides for a limitation of liability, disclaimer of warranty or condition or exclusion of damages is severable and independent of any other provision and is to be enforced as such.

FORCE MAJEURE. Seller shall not be liable for any loss or damage as a result of any delay in shipment, delivery or installation due to any cause beyond Seller's reasonable control, including without limitation, flood, hurricane, or other act of God, embargo or other governmental act or authority, regulation or request, fire, theft, accident, strike, slowdown, labor dispute, war, riot delay in transportation, inability to obtain necessary labor, materials or manufacturing facilities, whether at Seller's operations or at the operations of a supplier to Seller. In the event of any such delay, the date of performance shall be extended for a period equal to the time lost by reason of delay, plus a reasonable time for resuming performance.

RECLAMATION.  In the event that an account is not paid in accordance with the terms, Behler Young reserves the right to reclaim any goods or materials still in the applicant’s possession, custody or control to apply as an offset to any amounts owed. The Applicant and Guarantor shall allow Behler’s representatives access to its business premises at all reasonable times for the purpose of ascertaining the location, condition and/or status of any equipment and/or materials shipped by Behler Young that remains unpaid.

GOVERNING LAW AND JURISDICTION. The contract, Terms and Conditions, all transactions between Seller and Buyer, and all matters arising out of or relating to the relationship between the parties, shall in all respects shall be exclusively subject to, governed by, controlled by, and construed in accordance with the laws of the State of Michigan, USA, without regard to its conflict of laws principles or rules.  Any dispute or legal proceeding with respect to the contract, Terms and Conditions, all transactions between Seller and Buyer, and all matters arising out of or relating to the relationship between the parties, shall be brought, litigated, adjudicated and resolved, solely and exclusively by a court of the State of Michigan.  Buyer submits to and accept generally and unconditionally the personal jurisdiction of Michigan courts for the adjudication of any dispute or legal proceeding between the parties. Buyer agrees that the contract was formed in Ingham County Michigan, and venue for the litigation of all disputes between the parties, shall be proper solely and exclusively in the Ingham County Circuit Courts, or in another Michigan county exclusively selected by Seller. 

MISCELLANEOUS. Any failure of Seller to insist upon strict performance of any of the Terms and Conditions shall not be construed as a waiver of its right to strict performance thereafter. The Terms and Conditions set forth the entire understanding and agreement between the parties with respect to the subject matter hereof and cancels and supersedes all prior agreements, understandings, representations or promises, whether oral or written, between the parties. Nothing herein shall be construed to limit or waive any rights of Seller under applicable Federal, state or local laws. The invalidity or unenforceability of any particular portion or term of the Terms and Conditions shall not affect any other provision, and the Terms and Conditions shall be construed in all respects as if the invalid or unenforceable provision(s) were omitted.