1.1 These Terms alone shall govern and be incorporated into every agreement, whether written or oral, for the sale of goods made by or on behalf of BT with any wholesale customer (the “Buyer”). They shall be the entire agreement relating to its subject matter and apply in place of and prevail over any terms or conditions (whether or not in conflict or inconsistent with these Terms) contained or referred to in any documentation submitted by the Buyer or in correspondence or elsewhere or implied by trade custom, practice, or course of dealing, unless specifically excluded or varied in writing by an authorized representative of BT.
1.2 Any order placed on behalf of the Buyer by a member of the Buyer’s staff or the Buyer’s authorized representative is non-cancelable. If Buyer believes that the items, quantities, and/or prices on any invoice sent by BT are not as specified on the order, written notification indicating the errors must be received by BT within 3 days of Buyer’s receipt of such invoice.
1.3 Acceptance by the Buyer and delivery of the goods shall (without prejudice to any other manner in which acceptance of these Terms may be evidenced) be deemed to constitute unqualified acceptance of these Terms.
Unless otherwise specified, any taxes or duties applicable to the goods shall be paid by the Buyer. All prices are in USD.
3.1 Standard terms are net 30 days upon receipt of invoice. Payment of invoices will unless otherwise agreed in writing be made in full without any deduction or set-off.
3.2 Time of payment shall be of the essence in all contracts between the Buyer and BT to which these Terms apply.
3.3 BT reserves the right to suspend the provision of goods to the Buyer where either any amounts are overdue from the Buyer or the Buyer has exceeded any agreed extension of credit, until such overdue amounts have been paid in full or such account is brought back within the agreed credit limit.
3.4 Interest will be payable on overdue amounts at the rate of 8% per annum from the due date for payment until receipt by BT of the full amount, whether before or after judgement.
3.5 All bank charges incurred in transmitting payments shall be paid by Buyer.
Defective products or any non-conforming goods must be reported to BT within 7 days of receipt. All goods will be deemed to have been accepted by the Buyer if notification to the contrary is not received within this period. Returns must be pre-approved in advance in writing by BT.
5.1 Delivery or shipment dates mentioned in any invoice, pro-forma invoice, quotation, order acceptance form or elsewhere are approximate only and not of any contractual effect and BT shall not be under any liability to the Buyer in respect of any failure to deliver on any particular date or dates.
5.2 Delivery shall be at Buyer’s premises unless otherwise stipulated or agreed by BT in writing. Unless agreed in writing the Buyer shall inspect the goods immediately on their dispatch.
6. Risk and Title
Title and risk of loss passes to Buyer upon shipment of the goods from BT’s premises. As collateral security for the payment of the purchase price of the goods, Buyer hereby grants to BT a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the New York Uniform Commercial Code.
7. Third Party Rights
Buyer shall indemnify, defend, and hold harmless BT and its officers, members, employees, agents, affiliates, successors, and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, relating to or resulting from any claim of a third party arising out of or occurring in connection with the goods purchased from BT (or otherwise out of these Terms) or Buyer’s negligence, willful misconduct, or breach of these Terms.
8.1 Any goods sold by BT to Buyer are sold “as is.” BT MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR SUITABILITY. No representation or warranty is given that the goods are, or will be, identical to goods which may have been sold previously to the Buyer. Nothing in these Terms shall constitute or create the relationship of principal/agent, employer/employee, or of partnership between the parties. Neither party shall have the authority to bind the other for any purpose. The relationship between the parties is that of independent contractors.
8.2 Where liability is accepted by BT, BT’s only obligation shall be to refund the cost of such goods to the Buyer.
8.3 BT’s aggregate liability to the Buyer, whether for negligence, breach of contract, misrepresentation, or otherwise shall in no circumstance exceed the cost of the defective, damaged or undelivered goods which give rise to such liability as determined by the net price invoiced to the Buyer for such goods.
8.4 Subject to these Terms: (a) all conditions, warranties, and representations, expressed or implied by statute, common law or otherwise in relation to the goods and services, are hereby excluded; (b) BT shall be under no liability to the Buyer for any loss, damage, or injury, direct or indirect, resulting from defects in design, materials or workmanship or otherwise howsoever arising (and whether or not caused by the negligence of BT or its employees or agents); and (c) BT shall have no liability for any indirect, special, compensatory, incidental, or consequential losses or expenses suffered by the Buyer, howsoever caused, and including without limitation loss of anticipated profits, goodwill, reputation, business receipts or contracts, or losses or expenses resulting from third party claims.
9. Force Majeure
BT shall not be liable to the Buyer for any loss or damage which may be suffered by the Buyer as a direct or indirect result of the supply of goods by BT being prevented, hindered, delayed or rendered uneconomic by reason of circumstances or events beyond BT’s reasonable control, including but not limited to an act of god, war, riot, strike, lockout, trade dispute or labor disturbance, accident, breakdown of plant machinery, fire, flood, storm, difficulty or increased expense in obtaining labor, materials or transport or other circumstances affecting the supply of the goods and services or of raw materials by BT’s normal source of supply or the manufacture of the goods and services by BT’s normal means. Buyer’s payment obligations shall be unaffected by force majeure.
None of the rights or obligations of the Buyer under these Terms may be assigned or transferred in whole or in part without the prior written consent of BT.
BT shall be entitled to a general lien on all goods owned by the Buyer in BT’s possession (although the Buyer may have paid for the same in full) in satisfaction of the whole or part as the case may be of the unpaid price of any goods sold and delivered to the Buyer under any contract. BT shall be entitled to offset any sum or sums owing to it from the Buyer against any sums owed to the Buyer by BT.
If any of these Terms is held to be invalid, illegal or unenforceable in any respect, in whole or in part, such invalidity, illegality, or unenforceability shall not prejudice the effectiveness of the rest of these Terms or the remainder of any part affected.
Failure by BT to exercise or enforce any rights under these Terms shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement of such right at any time thereafter.
Any notice hereunder shall be in writing and be deemed to have been duly given if delivered personally or sent by email to BT at firstname.lastname@example.org, and to Buyer at its email address as indicated by its course of dealing with BT.
These Terms, and any and all disputes arising out of or relating to these Terms, will be governed by and construed under the laws of the State of New York, without reference to its conflicts of law principles, and shall be commenced and maintained solely in a state or federal court of competent subject matter jurisdiction situated or located in New York County, New York. Each party consents to the personal jurisdiction and exclusive venue of any such court.