Bryant Products LLC Terms and Conditions of Sale
Agreement and Acceptance
The terms and conditions set forth herein constitute the entire agreement between Bryant Products LLC (“Bryant”) and Purchaser in connection with any order submitted by or on behalf of Purchaser to Bryant. The terms and conditions set forth herein shall control over any terms or conditions in any order, and any and all terms contained in an order shall be deemed void and of no force or effect unless specifically agreed to and accepted in a writing signed by an officer of Bryant. All terms and conditions contained in any other oral or written communication which are different from or in addition to the terms and conditions herein are hereby rejected and this document is the complete and exclusive statement of the terms, save for purchase orders submitted by Purchaser for the purchase of the items contemplated by this Agreement which are consistent with this document and which are accepted by Bryant. Without limiting any other terms or conditions set forth herein, acceptance of the products shipped shall constitute assent to Bryant’s terms and conditions of sale, except as otherwise specifically agreed to by an officer of Bryant in writing. No agent, representative, or dealer has any authority to obligate Bryant to any terms, stipulations or conditions not herein expressed.
Cancellation and Change
Cancellation or modifications of all or part of any order are subject to Bryant’s prior written consent. If Bryant consents to cancellation or modification, Purchaser agrees to pay to Bryant all charges, expenses, and reasonable profits owed to or incurred by Bryant.
Shipment and Inspection
Subject to any contrary terms contained in a writing signed by Byrant, the proposed price does not include packing or shipping charges and all Products are shipped F.O.B. Bryant’s shipping point. Risk of loss and title shall pass to Purchaser upon delivery to carrier. Shipping dates indicated in the proposal are approximate and are based on the acceptance of the order with complete engineering and manufacturing information at the home office of Bryant in Ixonia, Wisconsin. If Purchaser fails to furnish the necessary information, dates of shipment may be extended. Products manufactured by Bryant will be stored at Purchaser’s risk and expense in the event of (i) suspension of manufacture at Purchaser’s direction, or by reason of Purchaser’s failure to comply with any of the terms and conditions hereof, or (ii) Purchaser’s refusal or inability to accept delivery thereof. If shipment is delayed by Purchaser, equipment will be invoiced upon completion of manufacture and payment will become due according to the invoice. If Purchaser seeks to reject all or any portion of a shipment from Bryant for any alleged defects or nonconformity, such rejection must be made, in writing to Bryant, within ten (10) days of receipt of such shipment by Purchaser or the shipment will irrevocably be deemed accepted by Purchaser, if not previously accepted. Purchaser hereby agrees that such period is a reasonable amount of time for such inspection.
Price and Payment
Prices on accepted purchase orders are firm for a period of thirty (30) days from the date of acceptance; provided that, if applicable, pricing adjustments will be made to the order for any material changes in the pricing of any commodities underlying the product’s pricing, as determined by Bryant, upon reasonable notice to Purchaser. At Bryant’s sole discretion, orders requiring customization are subject to an engineering fee in the amount of $100.00 for the first hour and $75.00 for each subsequent hour. All prices are quoted and all payments are to be made in U.S. funds. Unless otherwise specified, terms of payment are net 45 days from the date of invoice from Bryant. Credit to Purchaser shall be at the discretion of Bryant. Bryant has the right to amend credit terms on any order prior to delivery or completion of work. Payments received after the due date shall be subject to a carrying charge of one and one-half percent (1 1/2%) per month on the unpaid balance. If Purchaser fails to satisfy its payment obligations hereunder on time, Purchaser shall be responsible to Bryant for any costs of collection, including reasonable attorneys fees.
Taxes
Unless otherwise agreed to in writing by Bryant, all prices quoted are exclusive of transportation and insurance costs, duties, tariffs, and all taxes including, but not limited to, federal, state, provincial and local sales, excise value added goods and services taxes and any other taxes. Any such taxes, fees, duties, charges and levies are the responsibility of Purchaser (excluding taxes based on Bryant’s net income). Wherever applicable, such tax or taxes shall be added to the invoice as a separate charge to be paid by Customer unless an appropriate tax exemption certificate is presented which is acceptable to Bryant.
Warranty
Bryant warrants the products sold pursuant to these Terms and Conditions of Sale will be free from defects in material or workmanship for a period of one (1) year from date of shipment from the factory, when given normal and proper usage and while owned by the original purchaser from Bryant. For any rebuild or repair work, Bryant warrants the products sold pursuant to these Terms and Conditions of Sale will be free from defects in material or workmanship for a period of six (6) months from the date of rebuild or repair, when given normal and proper usage and while owned by the original purchaser from Bryant. In addition, Bryant warrants all Telescopers®, which have been manufactured and equipped by Bryant with FreeSeal® at the time of sale, that the Telescoper® will not bind up or freeze up at any time while owned by the original purchaser thereof and while used in its original installation, provided that the Telescoper® has been properly maintained and lubricated in accordance with the instructions furnished with the Telescoper® at the time of purchase. Bryant warrants that all standard screw type Telescopers® will not bind up or freeze up for five (5) years from the date of purchase, provided that the Telescoper® has been properly maintained and lubricated in accordance with the instructions furnished with the Telescoper® at the time of purchase and has been maintained in ordinary condition with normal wear and tear and with reasonable and proper use. In order to quality for either the five (5) year or extended No Freeze Up Warranties described above, the original purchaser must register their Telescopers® ID at www.bryantregistration.com within sixty (60) days of purchase. The original purchaser shall notify Bryant immediately of any defective part or parts and return the same at original purchaser’s expense to Bryant, together with date and proof of purchase. Bryant shall inspect the returned parts, and if covered under this warranty, shall repair or replace any defective parts at Bryant’s expense and return the same to the original purchaser at Bryant’s expense together with a credit for the cost of returning, the parts to Bryant. Bryant shall in no event be held liable for damage or delay caused by defective parts and will not accept any charges for work performed by Purchaser in making adjustments or repairs to the equipment unless such work has been authorized in writing by Bryant. Any equipment or component not of Bryant’s own manufacture is sold under the warranty of such manufacturer and is not warranted by Bryant in any way. When components manufactured by Bryant are to be assembled in combination with any materials or equipment of Purchaser’s design, the warranty hereunder is limited to each separate component and not to any combination. Any modification or alteration of the equipment or any substitution or addition of components not furnished by or authorized by Bryant shall at the option of Bryant, void this limited express warranty. PURCHASER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS WARRANTY SHALL BE SUCH REPAIR OR REPLACEMENT OF ANY DEFECTIVE PARTS WITHIN THE WARRANTY PERIOD. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED HEREIN, THE PRODUCTS ARE PROVIDED “AS IS”, AND TO THE FULLEST EXTENT PERMITTED BY LAW, BRYANT EXCLUDES ALL OTHER EXPRESS AND IMPLIED TERMS, CONDITIONS, WARRANTIES OR REPRESENTATIONS REGARDING THE PRODUCTS ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED TERMS OF MERCHANTABILITY, SATISFACTORY QUALITY, REASONABLE SKILL AND CARE AND FITNESS FOR A PARTICULAR PURPOSE. BRYANT WILL NOT BE LIABLE FOR INJURIES OR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM ANY CAUSE WHATSOEVER. No representation or warranty is made with respect to compliance with the requirements of the Occupational Safety and Health Act of 1910.
Limitations on Liability
IN NO EVENT WILL BRYANT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, REPUTATIONAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF USE, PROFIT OR UNDER- UTILIZATION OF LABOR OR FACILITIES, LOSS OF REVENUE OR ANTICIPATED PROFITS, LOST DATA, AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LINE STOPPAGE, AND PRODUCT RECALL REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EVEN IF BRYANT HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES. BRYANT’S TOTAL LIABILITY FOR ALL CLAIMS ARISING OUT OF, OR RELATING TO, THE PRODUCTS WILL BE LIMITED TO GENERAL MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL PURCHASE PRICE FOR THE PRODUCTS GIVING RISE TO THE CLAIM.
Indemnification
Purchaser agrees to defend, indemnify, and hold Bryant and its affiliates, members, directors, officers, employees and agents harmless from and against any and all claims, damages, losses, expense, legal actions (including attorneys fees and costs) and liability brought against or sustained by Bryant of any nature whatsoever (“Claims”) arising out of or occurring in connection with the negligence or willful misconduct of Purchaser or its employees or agents, including but not limited to: (a) any misuse or modification of the products sold hereto by Purchaser or its employees or agents, (b) any act (or failure to act) by Purchaser or its employees or agents in contravention of any safety procedures or instructions that Bryant provides to Purchaser or its employees or agents, or (c) the failure to store, install, operate, or maintain the products in accordance with Bryant’s instructions.
Intellectual Property
Bryant retains ownership of any patent, know-how, trade secret, trademark, service mark, copyright, or other intellectual property right that is related to the products or is otherwise developed by or provided to Purchaser in connection with the supply of the products.
Product Liability
Purchaser shall require its employees and any other person using the product or equipment to use safety devices, guards, and proper safe operation procedures. Purchaser shall not remove or modify safety devices, guards or warning signs, nor allow any person to remove or modify the same, or to operate the product or equipment if such devices, guards or signs have been removed or modified. Purchaser shall not permit any person other than required operating personnel to remain within ten feet of product or equipment during the operation thereof Purchaser agrees to indemnify and hold Bryant and its affiliates, members, directors, officers, employees and agents harmless from and against any and all claims, damages, losses, expense, legal actions (including attorneys fees and costs) and liability occasioned by damage or injury to any person or person’s property arising directly or indirectly in connection with the operation of the product or equipment, if Purchaser: (i) fails to observe each and every obligation set forth in this paragraph; (ii) fails to purchase and use safety devices and guards; (iii) fails to maintain good working order such safety devices and guards; (iv) adds, omits, modifies or substitutes any components on the product or equipment; (v) exceeds at any time the maximum safe loads or other similar specifications recommended by Bryant for the product or equipment, or (vi) makes any repairs, adjustments, or other work on any machines without following Bryant’s or component manufacturer’s guidelines for lockout or tagout procedures or takes any such action without first ensuring that the equipment has been unplugged or disconnected from all airline, hydraulic, electrical power sources and drive mechanisms. Purchaser shall notify Bryant promptly, and in any event within thirty (30) days, of any accident, malfunction, or other use or misuse or occurrence involving products of Bryant which results in personal injury or damage to property, and shall cooperate fully with Bryant in investigating and determining the cause of such occurrence. In the event that Purchaser shall fail to give such notice to Bryant and to cooperate as herein provided, Purchaser agrees to indemnify and hold Bryant and its affiliates, members, directors, officers, employees and agents harmless from and against any and all claims, damages, losses, expense, legal actions (including attorneys fees and costs) and liability arising from such accident, malfunction, or other occurrence.
Title
The title of the products or equipment covered by this proposal shall remain with Bryant, and such equipment shall remain personal property until all payments (including deferred payments whether evidenced by notes or otherwise) shall have been made in full cash to Bryant, and Purchaser agrees to do all acts necessary to perfect and assure retention of title to the equipment for Bryant.
Design Supplied by Purchaser
In the event and to the extent that the products or equipment or any portion thereof is produced according to design supplied to Bryant by or at the direction of Purchaser, Purchaser hereby agrees to indemnify and hold Bryant harmless from any and all claims, actions, proceedings, costs, expenses (including attorneys fees), damages and liabilities occasioned by (i) damage or injury to any person or any person’s property arising directly or indirectly in connection with the operation of the equipment or the use of the product; or (ii) any claim that the equipment, product, or such portion thereof constitutes an infringement of any patent. This paragraph shall apply regardless of any contrary provision contained herein.
Force Majeure
Bryant shall not be liable for delays or defaults of delivery caused by acts of God or public enemies, civil war, delay of carriers, terrorism, insurrection or riot, fire, flood, explosion, earthquake or serious accident, strike, labor trouble or work interruption or any cause beyond Bryant’s reasonable control. In the event that circumstances beyond Bryant’s reasonable control cause a delay in or prevent performance of this contract until a date beyond that contemplated for performance, and if Bryant thereby incurs expenses, losses or damages, there shall be a reasonable increase in the contract price to cover such added expenses, losses, or damages. Bryant may, during any period of shortage due to any of the above contingencies, allocate its available supply of goods among itself and its customers in such manner as Bryant, in its sole judgment, deems fair and equitable.
Compliance with Laws
Purchaser shall comply with all laws and regulations applicable to the products. Purchaser shall provide all information requested by Bryant relating to Bryant’s voluntary or mandatory compliance with any law or regulation, and Purchaser shall indemnify Bryant for any losses incurred by Bryant arising from Purchaser’s failure to provide the information requested by Bryant.
Severability
If individual provisions of these Terms and Conditions of Sale become void in whole or in part, the remaining provisions shall remain in full force and effect. The parties agree that such void provision will be deemed amended to achieve as nearly as possible the same economic effect as the original terms.
Governing Law
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 Wisconsin without giving effect to any choice or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Wisconsin. Purchaser agrees that all suits arising out of or concerning, this agreement or order, by or against Bryant, shall be filed exclusively in the Circuit Court for Jefferson County, State of Wisconsin. Purchaser consents and agrees to the exclusive jurisdiction of such court. If any suit or action is filed by Bryant to enforce Purchaser’s obligations under this Agreement, purchaser agrees to pay Bryant’s reasonable attorneys’ fees, court costs, disbursements, or other similar costs of collection.