TERMS FOR ALL PRODUCTS PURCHASED BY B.K. THORPE COMPANY
1. Application. All products (the “Products”) purchased by B.K. Thorpe Company (“BKT”) after March 15, 2012 from any supplier (“Supplier”) will be purchased on these terms, as amended as set out in (iii) below (the “Terms”). Notwithstanding the terms of any other contract or any terms of sale or purchase order required by Supplier, by accepting an order from BKT, Supplier agrees that: (i) the Terms are included in every contract with BKT for the purchase of Products from Supplier; (ii) the Terms supersede any provisions in Supplier’s contract, terms of sale or purchase order that are inconsistent with the Terms; and (iii) no amendment of the Terms is binding on BKT unless BKT agrees to it in writing, or posts it on its website or otherwise communicates it to Supplier (a “Change Notice”). Each amendment becomes effective when BKT agrees to it in writing or 30 days after BKT posts it on its website or otherwise communicates it to Supplier. Supplier agrees it has notice of all Change Notices mailed or emailed to it or posted on BKT’s website.
2. Prices/Payment. Supplier will: (i) give BKT not less than 60 days’ prior written notice of all changes to prices of Products; and (ii) invoice all orders for Products at the prices of which BKT had notice at the time it placed the orders, provided that if there is a delay in shipment, however caused, Supplier will invoice the order at the lower of the prices in effect when ordered or shipped. Supplier will not invoice BKT for any costs other than those stated in BKT’s order and the Terms. Provided there are no shortages or damaged Products, BKT will pay Supplier the purchase price, and all applicable taxes and duties, by the later of 60 days from BKT’s receipt of the Products and invoice therefor or the payment due date last agreed to in writing by BKT with the Supplier.
3. Title/Transfer/Risk/Delivery. Title, and risk of loss or damage, to the Products passes to BKT on its receipt of the Products in good condition. Supplier will deliver the Products to BKT, or as BKT directs, and will pay the cost of freight and insurance to do so. Supplier will not be liable for delays in delivery beyond its reasonable control, provided it immediately notifies BKT of them. If any delay lasts beyond the agreed upon “ex works” shipping date, BKT may, without liability (penalty, cancellation fee or otherwise), cancel the order by written notice to Supplier, after which Supplier will immediately return to BKT all money paid or cancel the unpaid invoice.
4. Rejection/Shortages/Return. Within 30 days of its receipt of Products, BKT will notify Supplier of any damaged Products or shortages. BKT may return any damaged Products, at Supplier’s expense, and cancel the order for those Products, whether or not the entire order has been shipped. BKT may also without cause or liability, but at its expense, return any Products. Supplier will immediately return to BKT all money paid for returned or cancelled Products or provide Products to complete any orders that were short-shipped to BKT.
5. Warranty. Supplier warrants that the Products: (i) are free of all liens, encumbrances and adverse claims, and that BKT will have good and marketable title to them; (ii) comply with all applicable laws in force at the time of delivery; (iii) are new, of merchantable quality and fit for their intended purpose; (iv) conform exactly to the samples, order numbers, specifications, drawings or other descriptions furnished by BKT; and (v) will be free from defects in material, workmanship and design until the expiration of the Warranty Period. For purposes of the Terms, the Warranty Period begins on receipt by BKT of the Products and expires on: (a) the date agreed upon in writing by BKT and the Supplier, (b) the first anniversary of the date of installation by BKT’s customer, or (c) the second anniversary of BKT’s receipt of the Products, whichever of (a), (b) or (c) is the first to occur.
6. Repair or Replace. Within 30 days of receiving a request from BKT within the Warranty Period, Supplier will, at BKT’s election promptly replace or repair all Products that BKT says are defective due to faulty material, workmanship or design, at no charge to BKT or BKT’s customers, fully refund to BKT the price paid for the defective Products or pay to BKT the total cost incurred by BKT to replace or repair the defective Products. Supplier makes the same warranties for Products it replaces or repairs under this section as under section 5, for a period equal to the Warranty Period but beginning on the date of replacement or repair.
7. Indemnity/Insurance. Supplier will, at its expense, protect, indemnify and defend BKT in respect of, and save and hold BKT harmless from and against, all obligations, commitments, costs, damages, claims, liabilities, actions and causes of action arising directly or indirectly from, or in any way connected with, the Products. Supplier will at its expense obtain and maintain in force all insurance on terms and in amounts as BKT may require from time to time and with insurers approved by BKT. Supplier will provide proof of insurance to BKT upon request.
8. Assignment. Supplier acknowledges that BKT is purchasing the Products for resale and agrees that BKT may assign any or all its rights under the Terms to any purchaser of the Products from BKT, without Supplier’s consent or notice to Supplier. Supplier will not assign, or purport to assign, any of its rights or obligations under these Terms or any purchase order given by BKT, unless BKT in its sole discretion first agrees in writing.
9. Additional Agreements of Supplier. Supplier hereby irrevocably attorns to the exclusive jurisdiction of the courts of California for all disputes arising out of its relationship with BKT, and agrees: (i) that its agreement with BKT for the purchase by BKT of Products, including the Terms, is governed by the laws of California; (ii) to do all things necessary to implement the Terms; (iii) that a waiver by BKT of any breach by Supplier of any of the Terms is not effective unless in writing signed by BKT; (iv) that no waiver by BKT of any breach of the Terms is a waiver of any continuing, subsequent or other breach; (v) that no waiver will be inferred from, or implied by, anything BKT does or does not do; and (vi) that BKT’s customers may enforce all of BKT’s rights herein against Supplier.
10. Mutual Agreement. BKT and Supplier agree that: (i) references to “the Terms” and words like “herein” refer to the Terms as a whole, and not just to the section in which they appear; (ii) “including” is deemed to be followed by “without limitation”; (iii) headings will not be considered when interpreting the Terms; (iv) time is of the essence of the Terms; (v) all references to BKT agreeing in writing or doing anything in writing refer to documents signed by, or sent by email by, the President or a Vice President of BKT; and (vi) “writing”, “in writing” and “written” includes emails, facsimile and all other means of electronic transmission capable of being read by the recipient.