All orders are subject to acceptance by Besatechnologies. Orders may not be cancelled or rescheduled without Besatechnologies’s written consent. Besatechnologies may designate certain orders as non-cancelable, non-refundable (“NCNR”), which when so designated on the front page of the Invoice the NCNR shall prevail and supersede any inconsistent terms and conditions contained herein or elsewhere.
Besatechnologies quoted prices are valid and are those specified on the front page of the Invoice. Prices quoted are for products only and do not include any transportation and insurance costs, handling, duties and any and all taxes, charges and levies imposed by any government and/or non-government agency. Besatechnologies reserves the right to modify payment terms prior to shipment, require payment in advance or delay or cancel any shipment or order by reason of Customer’s creditworthiness or should Customer fail to fulfill any obligation therein.
Payment of the Invoice shall be paid in full, without offset or deduction. In the event Customer has been extended payment terms and payment is not received within the stipulated delay, Customer shall pay to Besatechnologies interest calculated at a rate of 1.5% per month on the balance owing from the due date and any and all attorney fees and collection costs.
DELIVERY AND TITLE:
Delivery terms are FOB (Free on Board) from Besatechnologies shipping point or EXW (EX Works as defined in Incoterms 2011) from Besatechnologies facility and Customer is responsible for all charges. Title and risk of loss of sold products pass from Besatechnologies to Customer on shipment from Besatechnologies’s facility to the carrier. Customer is responsible for all shipping, handling, delivery, insurance and any and all applicable charges. Selection of the carrier and delivery route shall be made by Besatechnologies unless specified by Customer. Customer acknowledges delivery dates are estimates only and Besatechnologies is not liable for delays in delivery. Besatechnologies reserves the right to make partial shipments and Customer will accept delivery and pay for the products delivered. A delayed delivery of any part of an order does not entitle Customer to cancel other deliveries.
Furthermore, Besatechnologies will not be liable for any failure or delay in its performance or in the delivery or shipment of products, or for any damages suffered by Customer by reason of such failure or delay, when such failure or delay is caused by, or arises in connection with, any fire, flood, accident, riot, earthquake, severe weather, war, acts of terrorism, governmental interference or embargo, strike, shortage of labor, fuel, power, materials or supplies, delay in delivery by Besatechnologies’s suppliers or any other cause or causes beyond Besatechnologies’s reasonable control. Besatechnologies reserves the right to cancel without liability any order, the shipment of which is or may be delayed for more than 30 days by reason of any such cause. Besatechnologies reserves the right to allocate in its sole discretion among other customers or potential customers, or defer or delay the shipment of, any product which is in short supply.
ACCEPTANCE OF PRODUCTS AND PRODUCT RETURNS:
Customer must notify Besatechnologies in writing of any damage, shortage, or other discrepancy to product within 10 days after delivery. After the 10th day Customer is deemed to have accepted the product and may not revoke acceptance. Customer cannot return product without a Return Material Authorization ("RMA") number - please see ‘Besatechnologies Product Return Policy” for details. It is a strict requirement for the issuance of an RMA that the Customer provide a detailed written failure analysis report. Besatechnologies may at its sole discretion refuse to issue an RMA for return of the goods or require that Customer pay to Besatechnologies a restocking fee, which said restocking fee will be 20% of the Invoice Price.
In addition and at Besatechnologies’s discretion, Besatechnologies will return all product(s) not eligible for return to Customer freight collect, or hold product for Customer’s account at Customer’s expense.
In the event Customer refuses to accept tender or delivery of any product or returns a product without authorization from Besatechnologies, such product will be held by Besatechnologies awaiting Customer’s instructions for 20 days, after which Besatechnologies may deem the product abandoned and dispose of them as it sees fit, without crediting Customer’s account.
The warranty applies to all electronic components sold by Besatechnologies, which are operated in accordance with the product and operational specifications. Besatechnologies agrees to transfer to Customer whatever transferable warranties Besatechnologies receives from the manufacturer of products sold to Customer. Besatechnologies extends a one year limited warranty for the products it sells. Nevertheless if product does not meet manufacturer's specifications, Besatechnologies has the option to (a) repair the product, (b) replace the product at no cost to Customer; or (c) refund Customer's purchase price.
This warranty is contingent upon proper storage and handling of the product and does not cover products that have been subjected to physical abuse or electrical stress from improper handling and storage of Electro Static Discharge (“ESD”) sensitive products. All ESD sensitive products must be stored per manufacturer’s recommendations. In the event the product fails a test report, this test report and product must be sent to Besatechnologies for evaluation along with a copy of Customer’s ESD storage and handling procedure, subject to Besatechnologies’s ACCEPTANCE OF PRODUCTS AND PRODUCT RETURNS policy as stated herein.
In addition thereto, Customer's obligations and Besatechnologies’s remedies with respect to defective or nonconforming products, are solely and exclusively as stated herein. No warranty will apply if the product has been subject to misuse, static discharge, improper storage or handling, non-adherence to ESD storage and handling procedures, neglect, accident, modification, or has been soldered or altered in any way whatsoever.
LIMITATION OF LIABILITY:
CUSTOMER’S EXCLUSIVE REMEDY SHALL BE LIMITED TO THE PURCHASE PRICE AS STIPULATED IN THE INVOICE AND Besatechnologies’S TOTAL LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING OUT OF ANY CLAIM WHATSOEVER, WHETHER THE CLAIM IS BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED THE PURCHASE PRICE OF THE GOODS AS STIPULATED IN THE INVOICE IN RESPECT TO WHICH THE CLAIM ARISES OR, AT Besatechnologies’S OPTION, THE REPAIR OR REPLACEMENT OF THE GOODS. IN NO EVENT SHALL Besatechnologies BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL DAMAGES OR PUNITIVE DAMAGES RESULTING FROM ANY CLAIM, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, BUSINESS INTERRUPTION COSTS, REMOVEAL COSTS, REINSTALLATION COSTS, REPROCUREMENT COSTS, LOSS OF DATA, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO REPUTATION OR LOSS OF COSTUMER BUSINESS LOSSES, DAMAGE TO PROPERTY, OR ANY AND ALL LIABILITIES WHATSOEVER OF THE CUSTOMER AND/OR CUSTOMER’S BUYER OR THIRD PARTY CLAIMS.
Besatechnologies is not liable for, and Customer assumes full liability for, all personal injury and property damage connected with the handling, transportation, possession, processing, repackaging, further manufacture, or other use or resale of product, whether the products are used along or in combination with any other material, devices, components or products.
If any provision contained in this limitation of liability is, for any reason, held to be invalid or unenforceable in any respect under the laws of the competent jurisdiction elected herein, Customer agrees that Besatechnologies’s total liability for any and all damages, losses, or causes of action of any kind or nature whatsoever shall be limited to actual direct damages without regards to any punitive or exemplary damages provided by any such applicable law.
Besatechnologies is excused from performance of any obligations and shall not be liable for delays in delivery or for failure to perform if its failure or delay of performance is caused by events or conditions beyond Besatechnologies’s reasonable control, including without limitation, acts of God, acts of nature, natural or artificial disaster, acts of the public enemy, quarantine restrictions, expropriation or confiscation of facilities, compliance with any order of any governmental authority, industrial disturbances, blockades, insurrections, arrest and restraint of people or rulers, civil disturbances, boycotts, acts or omissions of Customer or civil or military authorities, shortage of product, acts or omissions of other parties, fire, strike, lock outs, landslide, lightning, wash outs, tornadoes, hurricane, windstorm, explosion, epidemic, flood, storm, earthquake, riot, war, act of terrorism, breakage or accident of machinery or equipment, delays in transportation, or inability to obtain necessary labor, materials, or supplies or any occurrence related in any way to computer issues in any way encompassing the failure of information technology to accurately process date/time data including, but not limited to , calculating, comparing, and sequencing from, into, and between a leap year, new year or the failure of the internet, router or any other equipment or connection that can cause a failure in Besatechnologies’s computer system to accurately process data, or a malicious computer code, virus, “bug”, “worm” or other similar technological code or event that can cause a failure in Besatechnologies’s computer system to process data. In the event of any delay, the contractual date of delivery, if any, shall be extended for a period equal of the time lost as a consequence of the delays without penalty to Besatechnologies.
USE OF PRODUCTS:
Products are not authorized for use in critical safety or other applications where a failure may reasonably be expected to result in personal injury, loss of life, or catastrophic property damage. If Customer uses or sells the product for use in any such applications, Customer acknowledges that such use or sale is at Customer's sole risk.
Nothing herein contained shall be construed to grant any rights or license to use any patent, trademark, copyright, mask work, trade dress, trade secret or similar proprietary rights and intellectual property rights in any manner or for any purpose not expressly permitted by such manufacturer or licensor. Besatechnologies makes no representation or warranty with respect thereto and shall have no liability in connection there. Moreover, Besatechnologies disclaims any warranty against infringement with respect to the products sold and the packaging relating to the products.
EXPORT CONTROL/USE OF PRODUCT:
Certain products sold by Besatechnologies and other related technology and documentation are subject to export control laws, regulations and orders of the United States, specifically the U.S. Export Administration which may be amended from time to time. Customer shall not directly or indirectly export or divert any product and other related technology and documentation to any third party, person or country where such export or transmission is restricted or prohibited. Customer agrees it is responsible to obtain any license to export, re-export, or import as may be required.
If the Customer or its subsidiaries, affiliates or related companies is based in Hong Kong, the Customer acknowledges and agrees not to ship, transfer, export, re-export, resell or otherwise dispose or release the product into Mainland China or any other prohibited country for which the end-user or end-use is prohibited by the United States, unless the Customer has obtained prior written authorization by the authorized agency with export authority for the United States. The Customer further acknowledges the end-use of the product is for commercial purpose only and the Customer expressly states and confirms the product shall not be used in any military application or any end-use prohibited by the laws of the United States or any other law where such law does not conflict with the laws of the United States.
Certain products sold by Besatechnologies and other related technology and documentation are subject to export control laws, regulations and orders of Canada. Customer shall not directly or indirectly export or divert any product and other related technology and documentation to any third party, person or country where such export or transmission is restricted or prohibited. Customer agrees it is responsible to obtain any license to export, re-export, or import as may be required. Customer acknowledges and agrees this is a strict requirement and assumes sole responsibility for obtaining licenses to ship, transfer, export, re-export, resell or otherwise dispose or release the product as may be required.
Product information, including information related to a product's specifications is obtained by Besatechnologies from its suppliers or other sources. Such information is provided by Besatechnologies on an "AS IS" basis. Besatechnologies makes no representation as to the accuracy or completeness of the product information, and disclaims all representations, warranties and liabilities under any theory with respect to the product information, including any implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Besatechnologies recommends Customer validates any product information before using or acting on such information.
The headings in the terms and conditions on the reverse side of the Invoice have been inserted solely for ease of reference and shall not modify, in any manner whatsoever, the meaning or scope of the provisions hereof.
Under no circumstances shall the failure, negligence or tardiness of a party as regards the exercise of a right or a recourse provided for in this Invoice be considered to be a waiver of such right or recourse. No provision of this Invoice will be deemed waived and no breach or default excused unless the waiver or excuse is in writing and signed by the party issuing it. A waiver of any provision or breach shall not constitute a waiver of any other provision or subsequent breach.
This order and Invoice constitutes the entire understanding between the parties. Declarations, representations, promises or conditions other than those set forth in this Invoice shall not be construed in any way so as to contradict, modify or affect the provisions of this order and Invoice. This Invoice shall not be amended or modified except by another written document duly signed by the parties.
This order and Invoice shall be interpreted, construed and enforced in accordance with the laws of the Province of Quebec. The courts of the Province of Quebec shall have exclusive jurisdiction in respect of any question, disagreement, dispute, action, cause of action or otherwise that may arise from this order and Invoice. The parties agree to elect domicile in the judicial district of the city of Montreal, Province of Quebec, Canada, for the hearing of any question, disagreement, dispute, action, cause of action or otherwise that may arise from this order and Invoice.
The parties hereto have expressly agreed that this Invoice as well as all other documents relating thereto be drawn up only in English. Les parties ont expressément convenu que ce contrat de même que tous les documents s'y rattachant soient rédigés en anglais seulement