(a) These terms and conditions of sale (“Terms”) are the only terms which govern the sale of the goods (“Goods”) and services (“Services”) by BHD Storage Solutions, Inc. (“BHD”) to the Customer named on the reverse side of these Terms (“Customer”). If a written contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby, the terms and conditions of such contract shall prevail to the extent they are inconsistent with these Terms.
(b) The accompanying confirmation of sale or invoice (“Sales Confirmation”) 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 Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
(c) BHD may, from time to time change the Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates stated in the Sales Confirmation.
(a) The Goods will be delivered within a reasonable time after the receipt of Customer’s purchase order, subject to availability of finished Goods and Customer’s fulfilment of all payment requirements under this Agreement. Delivery dates are estimates only and BHD shall not be liable for any delays, loss, or damage in transit.
(b) Unless otherwise agreed in writing by the parties, BHD shall deliver the Goods to the delivery point stated in the Sales Confirmation (“Delivery Point”) using BHD’s standard methods for packaging and shipping such Goods. Customer shall take delivery of the Goods within 2 days of BHD’s written notice that the Goods have been delivered to the Delivery Point. Customer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point, and will unload and release all transportation equipment promptly so BHD incurs no demurrage or other expense. BHD is not responsible for installation of any Goods unless expressly stated as being included as part of the Services in the applicable Sales Confirmation.
(c) BHD may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Customer’s purchase order.
(d) If for any reason Customer fails to accept delivery of any of the Goods on the date fixed pursuant to BHD’s notice that the Goods have been delivered at the Delivery Point, or if BHD is unable to deliver the Goods at the Delivery Point on such date because Customer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Customer; (ii) the Goods shall be deemed to have been delivered; and (iii) BHD, at its option, may store the Goods until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
(e) BHD shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation. However, any such dates shall be estimates only. (f) With respect to the Services, Customer shall (i) cooperate with BHD in all matters relating to the Services and provide such access to Customer’s premises, and such office accommodation and other facilities as may reasonably be requested by BHD, for the purposes of performing the Services; (ii) respond promptly to any BHD request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for BHD to perform Services in accordance with the requirements of this Agreement; (iii) provide such Customer materials, resources (including but not limited to adequate power supply and lighting) or information as BHD may request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
The quantity of any installment of Goods as recorded by BHD on dispatch from BHD’s place of business is conclusive evidence of the quantity received by Customer on delivery unless Customer can provide conclusive evidence proving the contrary. BHD shall not be liable for any non-delivery of Goods (even if caused by BHD’s negligence) unless Customer gives written notice to BHD of the non-delivery within 2 days of the date when the Goods would in the ordinary course of events have been received. Any liability of BHD for non-delivery of the Goods shall be limited to delivering the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
If BHD delivers to Customer a quantity of Goods of up to 3% more or less than the quantity stated in the Sales Confirmation, Customer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Sales Confirmation adjusted pro rata.
BHD shall make delivery in accordance with the terms on the face of the Sales Confirmation.
Title and risk of loss pass to Customer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Customer hereby grants to BHD a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Goods, wherever located, and whether now existing or later arising or acquired from time to time, and in all accessions to and replacements or modifications of such Goods, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Georgia Uniform Commercial Code.
If BHD’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, BHD shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
(a) Customer shall inspect the Goods within 5 days of receipt (“Inspection Period”). Customer will be deemed to have accepted the Goods unless it notifies BHD in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by BHD. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Customer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
(b) If Customer timely notifies BHD of any Nonconforming Goods, BHD 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 Customer in connection therewith. Customer shall ship, at its expense and risk of loss, the Nonconforming Goods to BHD’s facility located in Atlanta. If BHD exercises its option to replace Nonconforming Goods, BHD shall, after receiving Customer’s shipment of Nonconforming Goods, ship to Customer, at Customer’s expense and risk of loss, the replaced Goods to the Delivery Point.
(c) Customer acknowledges and agrees that the remedies stated in Section 8(b) are Customer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 8(b), all sales of Goods to Customer are made on a one-way basis and Customer has no right to return Goods purchased under this Agreement to BHD.
(d) Custom Goods.
(i) Customer is responsible for providing detailed drawings and specifications or approving any detailed drawings or specifications produced by BHD on instruction from the Customer. The final drawings and specifications must be approved by BHD in writing (“Approved Design”) as a pre-condition to acceptance by BHD of a Sales Confirmation to be supplied in accordance with those drawings and specifications. Customer must make its own investigations as to the fitness of customized Goods for its purposes. Customer acknowledges that BHD does not warrant the fitness of customized Goods for any particular purpose. The Customer acknowledges and agrees that BHD shall not be responsible for any aspects or properties of customized Goods arising from the design, drawings of the customized Goods, which are solely the responsibility of the Customer. Customer warrants that no Approved Design shall infringe any person’s intellectual property rights and Customer shall indemnify BHD for all of BHD’s costs relating to such infringement, including attorneys’ fees and costs of defense.
(ii) Customer must inspect customized Goods on delivery and advise BHD in writing within 7 days of delivery if such Goods, in its opinion, do not materially accord with the Approved Design. If BHD accepts that the Goods do not materially conform with the Approved Design, BHD will modify the Goods in such time as it determines is reasonable in the circumstances. Customer is deemed to have accepted the customized Goods and may not return them if Customer fails to give timely notice as required under this Section 8(d)(ii). Customer agrees that this Section 8(d)(ii) is reasonable and necessary as there may not be a ready and available market for BHD to resell the customized Goods.
(a) Customer shall purchase the Goods and Services from BHD at the price[s] (“Price[s]”) stated in BHD’s published price list in force as of the date that BHD accepts Customer’s purchase order or as stated on the Sale Confirmation. Unless otherwise stated in the Sales Confirmation, a deposit of at least 50% of the Price (“Deposit”) is due when BHD sends Customer the Sale Confirmat45ion and the remaining 50% must be received by BHD before any Goods are placed in transit to the Customer. Refunds of Deposits are at BHD’s sole discretion and Customer agrees that this is reasonable because BHD may have applied the Deposit towards the purchase of Goods ordered by Customer. If the Price[s] should be increased by BHD before delivery of the Goods to a carrier for shipment to Customer, then these Terms shall be construed as if the increased price[s] were originally inserted in this Agreement, and Customer shall be billed by BHD on the basis of such increased price[s].]
(b) Customer agrees to reimburse BHD for all reasonable travel and out-of-pocket expenses incurred by BHD in connection with the performance of the Services.
(c) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs and taxes; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, BHD’s income, revenues, gross receipts, personal or real property, or other assets.
(a) Customer shall pay all invoiced amounts due to BHD on receipt of BHD’s invoice. Customer shall make all payments under this Agreement by wire transfer and in US dollars.
(b) Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse BHD for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which BHD does not waive by the exercise of any rights under this Agreement), BHD shall be entitled to suspend the delivery of any Goods or performance of any Services and stop Goods in transit if Customer fails to pay any amounts when due under this Agreement.
(c) Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with BHD, whether relating to BHD’s breach, bankruptcy or otherwise.
BHD Storage Solutions Manufacturer’s Limited Warranty
BHD Storage Solutions, Inc., a Georgia corporation (“BHD”), warrants to the original purchaser that the following products manufactured by BHD and the following described services, if any, provided by BHD, will be free from defects in materials and workmanship for the following periods and on the following terms:
Products and parts (collectively, “Product(s)”): One (1) year from the date of original purchaser’s acceptance of the Product.
Installation of Product, if performed by BHD for the original purchaser:
As used in this Limited Warranty, the term “original purchaser” means the initial purchaser of a Product other than a BHD authorized dealer. This Limited Warranty is issued only to the original purchaser and is not transferable. No employee or agent of BHD or any other party is authorized to make any other warranty in addition to those made herein this Limited Warranty.
The obligation of BHD under this Limited Warranty is limited to repairing or, at its election, replacing any Product, which shall be conditioned upon the cooperation of the original purchaser in providing satisfactory evidence of defect to BHD. BHD assumes no obligation to arrange for or to pay the expense of any labor or materials, including labor necessary to remove a defective Product or to install new or repaired Product. BHD makes no representation or warranty regarding accessories or parts that are not manufactured by, or services not provided by BHD. The terms governing any such accessories, parts or services shall be in accordance with their respective warranties.
This Limited Warranty does not cover a Product which has been damaged or otherwise rendered defective as a result of any accident, alteration, abuse, misuse, neglect, lack of maintenance, improper installation or has been operated or maintained in a manner contrary to or inconsistent with the directions, instructions or recommendations of BHD. BHD shall not be liable for any damage to any Product or delays occurring while in transit or for any delays in performance by BHD caused by any contingency beyond its control including war, terrorism, government restrictions or restraints, custom issues, transportation or logistic issues, strikes, short or reduced supply of parts or raw materials, fire, flood or acts of God, nor for damage to or loss of any product, property or loss of profits due to the malfunctioning of or defect in any Product.
For services, the obligation of BHD is limited to reperformance of the services. Any request for third-party repair or corrective actions must be coordinated with and approved by BHD in advance. Unauthorized actions taken or services performed may void this Limited Warranty.
BHD reserves the right to discontinue or modify any of its Products at any time without notice. In the event that replacement of a Product pursuant to this Limited Warranty is not possible, BHD will fulfill any refund or replacement obligation under this Limited Warranty with a Product of equal or greater value.
The preceding paragraphs set forth the exclusive remedy for all claims based on failure of, or defect in, BHD Products or services sold, whether the failure or defect arises before or during the applicable limited warranty period, and whether a claim, however asserted, is based on contract, indemnity, warranty, tort (including negligence), strict liability, implied by statute, common-law or otherwise, and neither BHD nor any of its officers, employees or agents shall be liable for any claims for personal injuries or consequential damages or loss incurred or suffered by the original purchaser or any other person, howsoever caused. In no event shall BHD be liable for any indirect, incidental, consequential, punitive or special damages arising hereunder, including project delays or labor downtime. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation may not apply to you. Upon the expiration of the applicable limited warranty period, all liability of BHD hereunder shall terminate.
THE ABOVE LIMITED WARRANTY IS THE EXCLUSIVE WARRANTY FOR BHD PRODUCTS AND SERVICES. BHD DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR OTHERWISE. In the event that applicable consumer law prohibits the disclaimer of an implied warranty, the above Limited Warranty shall not extend the period of any such implied warranty. Some states do not allow limitations for consumers on how long an implied warranty lasts, so the above limitation may not apply to you.
This Limited Warranty shall be governed by the laws of the State of Georgia, without regard to the conflicts of law principles of said state, and all claims and disputes between the parties, regardless of whether they are contract claims or tort claims, shall be subject to the jurisdiction of the courts of the State of Georgia. Venue of any lawsuit (State or Federal) against BHD must be filed in Cobb County, Georgia, which shall be the exclusive venue for the prosecution of any claims against BHD. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this Limited Warranty.
For warranty claims or questions, please contact your sales representative.
(a) IN NO EVENT SHALL BHD BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, 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 BHD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL BHD’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO BHD FOR THE GOODS AND SERVICES SOLD UNDER THIS AGREEMENT.
(c) The limitation of liability stated in Section 12(b) shall not apply to (i) liability resulting from BHD’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from BHD’s acts or omissions.
Customer shall indemnify, defend and hold harmless BHD and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party, arising out of or resulting from any claim of a third party arising out of or occurring in connection with the Goods (including customized Goods) or Services purchased from BHD or Customer’s negligence, willful misconduct or breach of this Agreement. Customer shall not enter into any settlement without BHD’s prior written consent.
Customer shall comply with all applicable laws, regulations, and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Customer 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 Customer. Customer assumes all responsibility for shipments of Goods requiring any government import clearance. BHD may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other duties or penalties on the Goods.
In addition to any remedies that may be provided under these Terms, BHD may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due under this Agreement and such failure continues for 2 days after Customer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) 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.
No waiver by BHD of any of the provisions of this Agreement is effective unless explicitly stated in writing and signed by BHD. 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.
All non-public, confidential or proprietary information of BHD, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by BHD to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by BHD in writing. Upon BHD’s request, Customer shall promptly return all documents and other materials received from BHD. BHD shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain other than through the fault of the Customer; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
All intellectual property rights in Goods (including customized Goods and Approved Designs) or Services remain the property of BHD including the copyright in all drawings, specifications and manuals supplied by BHD to the Customer. BHD has a nonexclusive, world-wide, royalty free, right to use the drawings and specifications prepared for customized Goods and Approved Designs for commercial purposes. Customer must not, and must not permit or assist any third party to, copy or take extracts from any drawings, specifications, or manuals without the prior written consent of BHD. All comments, suggestions, or feedback (collectively “Feedback”) from Customer or Customer’s end users provided to BHD is the intellectual property of BHD alone.
No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to BHD under this Agreement), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemics, pandemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 5 days of the Force Majeure Event to the other party, stating for how long the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. If the Impacted Party’s failure or delay remains uncured for a period of 5 business days following written notice given by it under this Section 18, either party may thereafter terminate this Agreement upon 5 days’ written notice. If the terminating party under this Section 19 is Customer, Customer agrees that any Deposit or payment already made to BHD is refundable at BHD’s sole discretion.
Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of BHD. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
This Agreement is for the sole benefit of the parties to this Agreement and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
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 Georgia without giving effect to any choice or conflict of law provision or rule (whether of the State of Georgia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Georgia.
Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Georgia, in each case located in the City of Atlanta and County of Fulton, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. The prevailing party in any action arising out of or relating to this Agreement shall be awarded its costs, including reasonable attorneys’ fees.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses stated on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
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.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Indemnification, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction, and Survival.
These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
