The following terms and conditions of sale govern all purchases from BEKO Technologies Corp. (“BEKO”)
Price/Delivery. All prices are “ex-works” BEKO’s place of business and are excusive of transportation costs, insurance and applicable taxes. Title and risk of loss or damage pass upon tender of delivery of the product to the carrier. BEKO will arrange for transportation and insurance at Buyer’s expense. The shipping date is an estimate and is subject to change by BEKO. The price stated includes only the product specified and is firm only for the period stated. Taxes shall be the responsibility of Buyer.
Acceptance. All orders are subject to acceptance by BEKO at its place of business.
Delays. BEKO will not be responsible or liable for any loss, damage, or delay caused or occasioned by acts of God, transportation delays, accidents, fire, strike, civil or military authority, by the requirements of any statute, order or directive of any government authority, or by any other cause beyond BEKO’s reasonable control.
Inspection. Buyer shall promptly inspect the products upon receipt and shall notify BEKO in writing of any nonconformity or defect within 10 days after receipt
by Buyer. In the event Buyer does not act within the time limit, Buyer agrees that it shall be conclusively presumed to have accepted the products and to have waived any defect discoverable upon reasonable inspection. Where any tender of delivery by BEKO is rejected by Buyer as a result of a non-conformity or defect, BEKO may seasonably notify the Buyer of BEKO’s intention to cure and may then make a conforming delivery within a reasonable time, said reasonable time to be at least thirty (30) days following receipt of notice of Buyer that the goods are non-conforming or defective.
Payment/Security Interest. Unless otherwise stated herein, the purchase price shall be payable to BEKO in U.S. dollars at BEKO’s place of business, net 30 days from the invoice date. Amounts not paid when due will bear a late payment charge of 1.5% per month after 30 days. Buyer grants BEKO a purchase money security
interest in the products and any proceeds thereof, as security for Buyer’s obligation to pay the purchase price, and Buyer agrees to execute any financing statement or other instrument required to perfect such security interest. Buyer hereby agrees to BEKO’s Terms and Conditions and grants BEKO a security interest, as defined by Article 9 of the Uniform Commercial Code, in the goods shipped by BEKO.
Warranty/Disclaimer. All products manufactured by BEKO are warranted to the original buyer, for a period of 12 months. For product line DRYPOINT® RA, RA HT and RS HP the warranty period is 24 months provided the following mandatory requirement is fulfilled; a BEKO CLEARPOINT® coalescing filter, Type-F (1 µm) or finer, must be installed directly at the inlet of the dryer for maximum warranty coverage. BEKO maintains, at their discretion, the option to offer the same warranty on the aforementioned product line where other manufacturer’s filters have been employed, as long as the previously stated performance and installation specifications have been met. The warranty period begins on the date of shipment, where product is to be free of any defects in materials and workmanship, which render the products unfit for their intended use, and to conform to their specifications provided. Subject to terms in this Section, BEKO will repair or replace, at its option, any products or components that are found to be defective or nonconforming, provided that Buyer gives written notice of the defect or nonconformity within the warranty period. Buyer shall make the product or component available for BEKO’s inspection or, at BEKO’s option, shall return the product or component to BEKO FOB its manufacturing facility
designated by BEKO. BEKO will return the product or component to Buyer, freight prepaid, to any location in the continental United States. This warranty shall be void in case of: (a) any Buyer modifications not expressly approved by BEKO; (b) use of nonauthorized replacement parts; (c) misuse or failure to maintain or service the product in accordance with BEKO recommendations. During the entire warranty period, charges will be made in accordance with prices and services in effect at the time for parts and services which fall into the general category of normal maintenance, if needed to make additions or modifications requested by the Buyer, or if needed to make repairs not covered by this warranty. This warranty applies only if Buyer has followed BEKO’s approved maintenance schedules and procedures.
THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR OBLIGATIONS, EXPRESSED OR IMPLIED. BEKO EXPRESSLY DISCLAIMS ALL IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BUYER’S EXCLUSIVE REMEDY FOR BREACH OF WARRANTY IS REPLACEMENT OR REPAIR, AT BEKO’S OPTION. BUYER’S SOLE REMEDY IS LIMITED TO REPAIR OR REPLACEMENT OF NONCONFORMING GOODS. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
WARNING TO USERS. BUYER ACKNOWLEDGES THAT USE OF THE BEKO PRODUCTS REQUIRES CAUTION ON THE PART OF USERS AND THAT FAILURE TO USE SUCH CAUTION CAN CAUSE SERIOUS PERSONAL INJURY. BUYER SHALL INSTRUCT ITS EMPLOYEES AND ANY OTHER PERSONS WHO MAY COME IN CONTACT WITH THE PRODUCTS ON PROPER USE AND SHALL PLACE APPROPRIATE WARNINGS IN LOCATIONS REASONABLY NECESSSARY TO ALERT SUCH EMPLOYEES AND OTHER PERSONS TO THE NEED FOR CAUTION IN CONNECTION WITH USE OF THE PRODUCTS. BUYER SHALL INDEMNIFY AND HOLD HARMLESS BEKO FROM ANY LOSS, CLAIM, OR DAMAGES, INCLUDING ATTORNEYS FEES AT TRIAL AND ON APPEAL, CAUSED IN WHOLE OR IN PART BY BUYER’S FAILURE TO COMPLY WITH THE REQUIREMENTS OF THIS SECTION.
LIMITATIONS OF LIABILITY. IN NO EVENT WILL BEKO BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, SUSTAINED FROM ANY CAUSE RELATING TO THE PRODUCT OR ARISING OUT OF ANY LEGAL THEORY, WHETHER BREACH OF CONTRACT, NEGLIGENCE OR STRICT TORT LIABILITY. IN NO EVENT SHALL BEKO BE LIABLE TO BUYER FOR ANY CLAIM, WHETHER BASED UPON BREACH OF CONTRACT, NEGLIGENCE, STRICT TORT LIABILITY OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR RELATING TO THE PRODUCTS SOLD, IN AN AMOUNT EXCEEDING THE PURCHASE PRICE OF THE SUBJECT PRODUCT. ANY LAWSUIT BY BUYER AGAINST BEKO, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AFFILIATES, ARISING OUT OF OR RELATING TO THE SUBJECT PRODUCT, MUST BE FILED WITHIN ONE YEAR FROM SHIPMENT OF THE PRODUCT BY BEKO.
DISPUTES. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE AND ENTERED INTO IN ATLANTA, FULTON COUNTY, GEORGIA. THIS AGREEMENT SHALL BE CONSTRUED UNDER THE LAWS OF THE STATE OF
GEORGIA. BUYER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF FULTON COUNTY, GEORGIA, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE BUYER AND BEKO STIPULATE THAT THE STATE COURTS OF GEORGIA SHALL HAVE SOLE JURISDICTION AND THAT VENUE SHALL BE PROPER AND SHALL LIE EXCLUSIVELY IN THE COURTS OF FULTON COUNTY, GEORGIA AND THAT ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE HEARD IN AND ONLY IN SUCH COURTS.
Export Restrictions. Buyer shall at all times comply with United States laws and regulations governing export control. Buyer shall not use, lease, or sell any
products purchased from BEKO in any country, or to any other purchaser or lessee in any country of destination specified in Buyer’s order, except in a manner expressly permitted by such laws and regulations.
Patents. If Buyer becomes aware of any claim that a BEKO product infringes the patent or other rights of any third party, Buyer shall immediately notify BEKO in writing and shall give BEKO sufficient information to evaluate, defend, and settle the claim. BEKO shall thereafter at its own expense and option: (a) settle the claim; (b) procure for Buyer the right to use the product; (c) replace or modify the product; (d) remove the product and refund the purchase price; or (e) defend the claim. If Buyer complies with its obligations under this paragraph, BEKO shall defend Buyer against any infringement claim based upon Buyer’s use of the BEKO product and shall pay any costs and damages finally awarded by a court of competent jurisdiction based upon a finding that the BEKO product infringes the rights of a third party. If a court of competent jurisdiction enjoins use of the product, BEKO shall, at its option, undertake one of the options described in Clauses (b), (c), and (d) above. This indemnity shall not apply to BEKO products that have been made to the specification or design of Buyer or to any product or part not manufactured by BEKO. The rights set forth in this paragraph shall be the sole and exclusive rights of Buyer with respect to patent and other intellectual property rights.
Returns. Products may be returned to BEKO only with BEKO’s prior written authorization. Returns shall be subject to BEKO’s return policies, which are subject to change.
Precedence. These terms and conditions take precedence over Buyer’s additional or different terms and conditions, and BEKO’s agreement to sell products to Buyer, and any acceptance by Buyer, are specifically limited to these terms and conditions. In the absence of Buyer’s signature on this agreement, Buyer shall be bound by all of these terms and conditions; (a) 10 days after Buyer receives these terms and conditions unless written notice of objection is given to BEKO within the 10-day period; (b) when Buyer issues any instructions to BEKO and BEKO makes a substantial beginning of manufacture of the products or commitments for their procurement; (c) with respect to any products for which payment has been made and accepted or which Buyer has received and accepted
ENTIRE AGREEMENT. THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN PARTIES WITH RESPECT TO THE SUBJECT PRODUCTS, ANY REPRESENTATIONS, PROMISES, WARRANTIES OR STATEMENTS THAT DIFFER IN ANY WAY FROM THE TERMS OF THIS AGREEMENT SHALL BE GIVEN NO FORCE OF EFFECT. THIS AGREEMENT MAY NOT BE MODIFIED EXCEPT IN WRITING SIGNED BY BEKO.