Terms of Quotation and Sale - Goods & Services
1. Acceptance
1.1 These terms and conditions govern the sale of Products ("Products") and the provision of services ("Services") by Branom Instrument Company (“Branom”) and its divisions, subsidiaries and affiliates ("Seller") as well as by third party vendors and/or service providers of Seller to Branom’s customers (“Customer”). These terms and conditions ("Agreement") take precedence over Customer's supplemental or conflicting terms and conditions to which notice of objection is hereby given. These terms and conditions may only be waived or modified in a written agreement signed by an authorized officer of Seller. Customer's acceptance of the Products and/or Services from Seller shall be deemed to constitute acceptance of the terms and conditions contained herein.
1.2 Seller reserves the right to modify these terms and conditions at any time at its sole discretion.
2. Quotation & Contract
2.1 Our quotation is valid for acceptance for 30 days after its date, unless we have stated a different period or withdraw it earlier.
2.2 Purchase orders (PO) must be in writing and has no effect until Acknowledgement. We are not obliged to accept any PO. Orders may not be cancelled or rescheduled without Seller's written consent. All purchase orders must include requested delivery dates, quantities, and complete description of Products being purchased.
3. Customer Responsibilities
3.1 Customer must supply the information, documents, and instructions we reasonably need to proceed with our Contract duties in a timely manner.
3.2 Customer is responsible for the accuracy and completeness of all information it supplies.
3.3 Customer is solely responsible to ensure the products and services that are quoted and ordered are fit for the purpose and meet the needs of the Customer.
4. Delivery
4.1 Delivery and performance periods begin on Acknowledgement. All delivery periods and dates stated are approximate. We will not be liable for any damages caused by our failure to deliver.
5. Payment and Credit Terms
5.1 For Customers without Seller approved credit and payment terms, full payment is due promptly prior to shipment of goods or provision of services. A deposit on the order in an amount to be determined by the Seller may be required, based upon order value.
5.2 Seller, at its sole discretion, may choose to offer Customer credit and payment terms which must be agreed to by both parties in writing. Standard credit and payment terms require that payment is due within 30 days from the date of invoice, unless otherwise agreed upon in writing. Credit and payment terms may be modified or revoked by Branom at its sole discretion.
5.3 Late payments may incur interest charges at the rate of 1.5% per month or the maximum rate allowed by law, whichever is lower.
6. Shipping
6.1 Shipping costs are the responsibility of the customer unless otherwise specified in writing. All shipments are made FCA (Incoterms 2020) from point of shipment which is Branom’s facility or Manufacturer’s facility at Branom’s sole discretion.
6.2 All costs imposed by the carrier for the shipment will be paid by Branom and charged to the Customer on the Customer’s invoice. If Customer chooses freight collect, shipments will be FCA origin using the carrier designated by Customer. If origin doesn’t accept customer’s freight collect request, the shipment costs shall be prepaid by Branom and charged to the Customer on the Customer’s Invoice.
6.3 Title and risk of loss pass to Customer upon tender of shipment to the carrier. If the product is damaged in transit, Customer's only recourse is to file a claim with the carrier.
6.4 We will use commercially reasonable efforts to meet agreed-upon shipping dates, but we are not liable for any delays caused by circumstances beyond our control.
7. Returns
7.1 Returns must be authorized in advance. Unauthorized returns may not be accepted. Many of the products that Branom sells are custom manufactured for the Customer’s application and are not able to be returned. Customer should request in advance whether an item is returnable prior to purchase.
7.2 Returned goods must be in their original condition and packaging within 30 days of purchase.
7.3 Restocking fees may apply to returned items.
8. Warranty
8.1 LIMITED WARRANTY.
Products are sold by BRANOM with such warranties as may be extended by the manufacturer of the Product(s), and there are no warranties for value added services, services bundled with the Products, or other services provided by BRANOM. COPIES OF THE MANUFACTURERS' WARRANTIES ARE AVAILABLE PRIOR TO THE PURCHASE OF PRODUCTS BY CONTACTING BRANOM. CUSTOMER IS RESPONSIBLE FOR INSTALLATION AND USE IN ACCORDANCE WITH MANUFACTURERS' INSTRUCTIONS AND BRANOM SHALL NOT BE RESPONSIBLE FOR CUSTOMER'S IMPROPER SELECTION OF A PRODUCT FOR A PARTICULAR APPLICATION OR OTHERWISE. No warranty will apply if the Products are in any way altered or modified after delivery by BRANOM. If BRANOM breaches this warranty, Customer's remedy is limited to (at BRANOM's election) (1) refund of Customer's purchase price for such Products (without interest), (2) repair of such Products, or (3) replacement of such Products; provided that such Products must be returned to BRANOM, along with acceptable evidence of purchase, within 30 days from date of delivery, transportation charges prepaid. No warranty will apply if the Product has been subject to misuse, static discharge, neglect, accident or modification, or has been soldered.
Customer acknowledges and agrees that no BRANOM employee is authorized to make any representation or warranty on behalf of BRANOM that is not in this Agreement.
WITH RESPECT TO ANY SOFTWARE AND OTHER PRODUCTS MADE AVAILABLE, CUSTOMER ACKNOWLEDGES AND AGREES THAT BRANOM IS NOT THE MANUFACTURER THEREOF AND THE ONLY WARRANTIES OFFERED ARE THOSE OF THE MANUFACTURER, NOT BRANOM. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER'S WARRANTY. In purchasing the software, Customer is relying on the manufacturer's or licensor's specifications only and is not relying on any descriptions representing the software that may be provided by BRANOM. Support and/or maintenance, if any, for such software shall be provided by the manufacturer or licensor, unless BRANOM expressly agrees to provide such support and/or maintenance in the software purchase order. Customer further hereby expressly waives any claim that it may have against BRANOM based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights with respect to any such software product. In addition, Customer hereby also waives any right to indemnification from BRANOM against any such claim made against Customer by a third party.
SAVE AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, ALL IMPLIED WARRANTIES, TERMS AND CONDITIONS (WHETHER STATUTORY OR OTHERWISE) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. IN PARTICULAR, BRANOM MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OR RESPECTING INFRINGEMENT. THE PARTIES AGREE THAT WITHOUT THIS LIMITATION OF LIABILITY BRANOM WOULD NOT HAVE AGREED TO THE PRICE OR TERMS AND CONDITIONS OF THIS AGREEMENT.
9. Export Control
9.1 Customer certifies that it will be the recipient of Products to be delivered by Seller. Customer acknowledges that the Products are subject to the export and/or import control laws and regulations of various countries, including the Export Administration Laws and Regulations of the United States of America (USA). Customer agrees to comply strictly with all U.S. export laws and assumes sole responsibility for obtaining licenses to export or re-export as required. Customer further acknowledges that it shall not directly or indirectly export any Products to any country to which such export or transmission is restricted or prohibited. Products sold by Seller cannot be transferred, sold, or re-exported to any party on the Restricted Entity List or Restricted Person List of the U.S. Department of Commerce, Bureau of Industry and Security (BIS), or any party debarred or sanctioned for proliferation or terrorism reasons by the U.S. State Department. Branom (Seller) is committed to compliance with all United States of America (“U.S.”) Export Regulations and Laws. Branom will not sell or ship to countries embargoed by the U.S. Treasury Office of Foreign Asset Control (“OFAC”). Branom will not sell or ship to individuals or organizations identified by the U.S. Treasury as Specially Designated Nationals and Blocked Persons. Branom will not sell or ship products prohibited under Export Administration Regulations (“EAR”) or the International Traffic in Arms Regulations (“ITAR”) to individuals or organizations identified by the U.S. Department of Commerce, Bureau of Industry and Security (“BIS”) or by the U.S. Department of State, Directorate of Defense Trade Controls (“DDTC”). Furthermore, Branom prohibits the re-export, brokering, or transshipment of its products to any individual, organization, or country prohibited by the OFAC, BIS, or DDTC. Products purchased are subject to export control laws, restrictions, regulations, and orders of the United States and may be subject to the export and/or import control laws and regulations of other countries.
10. Waiver, Choice of Law and Venue
10.1 The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent non-performance of any such term or condition by the other party. All transactions shall be governed by the laws of the State of Washington, excluding its conflict of law rules, and to the extent allowed under these terms and conditions, both Branom and Customer agree that venue shall be proper either in the state courts in King County, Washington or the federal courts for the Western District of Washington.
11. Limitations of Use
11.1 Products sold by Branom (Seller) are not intended or authorized for use in life support, surgical implantation, nuclear, spacecraft or aircraft applications, or for any use or application in which the failure of a single component could cause substantial harm to persons or property. Customer acknowledges that using or selling Products for such applications is done at its own risk. Both Branom and the manufacturer of the Products are not liable for any claim or damage arising from such use. If Buyer uses or sells the Products for any such applications: (1) Buyer acknowledges that such use or sale is at Buyer’s sole risk; (2) Buyer agrees that Seller and the manufacturer of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (3) Buyer agrees to indemnify, defend, and hold Seller and the manufacturer of the Products harmless from and against any and all claims, damages, losses, costs, expenses, and liabilities arising out of or in connection with such use or sale.
12. California Proposition 65
12.1 The State of California Safe Drinking Water and Toxic Enforcement Act of 1986, often referred to as "Proposition 65” requires that certain warnings are made if exposure to a listed chemical poses a significant risk of cancer or reproductive or developmental harm. If applicable, these warnings can be found in the product documentation at branom.com, on the manufacturer of the products website or on the product label.
13. Force Majeure
13.1 Neither party is liable for non-performance or delay due to circumstances or causes beyond its reasonable control, including but not limited to acts of God; war; armed conflict; terrorism; fire; flood; accident; weather; failure or interruption of public and private computer or telecommunication systems, networks, and infrastructure; Cyber Attacks; sabotage; strikes or labor disputes; civil disturbances or riots; epidemics or pandemics; governmental decisions, requests, restrictions, Law (including the denial, failure to issue or loss of export or re-export licenses); unavailability of or delays in transport; or shortage of materials or parts.
14. General
14.1 Seller shall be entitled, without the consent of or notice to Customer, to assign or subcontract any of its obligations or rights hereunder, including with respect to the sale of products or the right to receive payment. Customer may not assign this Agreement, or any of Customer's rights or obligations herein without the prior written consent of Seller. This Agreement shall be binding on and inure to the benefit of all such permitted successors and assigns. The relationship between the parties is that of independent contractors and not that of employer/employee, partnership or joint venture. Notices provided under this Agreement shall be in writing and deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or one (1) day after such notice is sent by personal delivery. Notices to Seller must be addressed to: Quality Control, Branom Instrument Company, PO BOX 80307, Seattle, WA 98108. Notices to Customer shall be sent to the physical address associated with Customer's account in Seller's electronic records. It is Customer's responsibility to keep such information current by editing the "My Profile" page on branom.com as necessary.