Terms and Conditions of Sale

1. Scope: The Terms and Conditions of Sale (“Terms”) contained herein shall apply to all quotations and offers made by and purchase orders accepted by BRW Control Systems, Inc. (hereafter “BRW”). These Terms apply to all sales made by BRW except to the extent the Terms conflict with a Sales Agreement signed by BRW and Buyer. These Terms apply in lieu of any course of dealing between the parties or usage of trade in the industry. These Terms may in some instances conflict with some of the terms and conditions affixed to the purchase order or other procurement document issued by the Buyer. In such case, the Terms contained herein shall govern, and acceptance of Buyer’s order is conditioned upon Buyer’s acceptance of the terms and conditions herein, irrespective of whether the Buyer accepts these conditions by a written acknowledgement, by implication, or acceptance and payment of products ordered hereunder. BRW’s failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of the provisions herein. Any changes in the Terms contained herein must specifically be agreed to in writing signed by an officer of BRW before becoming binding on either party. Orders will become effective only when accepted by BRW. Orders will be filled at the prices that are in effect at the time of shipment. BRW has no minimum billing.

2. Initial Purchase Orders: Initial purchase orders will be shipped following a completed credit card transaction, or C.O.D. (cash, money order, or certified check only), until a line of credit has been established. Credit application forms are available upon request, and must be submitted to, and approved by, BRW prior to the establishment of an open account. To submit a credit application please click here and fill out the form.

3. Open Accounts: No order will be accepted on an open account basis without previously established credit. Generally, opening of an account, if approved, will take 5-10 days from the date the application is received. Terms to those customers with approved credit are Net 30 days, except when special arrangements have been made between BRW and Buyer. Buyer’s credit line will be immediately suspended for past due accounts. In such event, BRW shall not be liable for non-performance of the contract and shall not make further delivery until it has received adequate assurance that Buyer’s performance will be duly forthcoming. The failure of Buyer to provide such assurances within a reasonable time will be regarded by BRW as a repudiation of the contract by Buyer.

4. Deposits on Open Account Orders: Unless otherwise established with the Buyer in advance of placing an open account order, (a) all material purchase orders in excess of $1,000 (USD), (b) any material purchase order for any nonstandard or custom goods, or (c) any purchase order for non-stock goods, must be accompanied by a minimum thirty-five percent (35%) deposit before the order will be accepted. The Buyer’s deposit, in such cases, will be credited to Buyer’s applicable purchase order in any invoice(s) related to said order.

5. Past Due Accounts: Orders may be held on past due accounts until the past due condition is removed. Orders shipped to past due accounts will only be shipped C.O.D. All overdue amounts will be added to the C.O.D. amount. A Buyer’s credit line may be raised, lowered, or suspended at any time, depending on BRW’s evaluation of the Buyer’s ongoing credit line. Buyers agree to pay BRW on or before the due date specified on the invoice in the full amount due. Payment date is determined by postmark and not check date. Any invoice considered past due is subject to a 1.5% per month (18% per annum) late charge on delinquent amounts. NOTICE: In the event an account becomes delinquent, all written and verbal communications will be an attempt to collect the debt and any information will be used for that purpose. Any court costs, attorney fees and collection fees that arise from collecting past due accounts will be charged to the Buyer. Terms are subject to change.

6. Pricing: All published prices are in U.S. dollars and discounts are subject to change without notice. All written quotations are valid for thirty (30) days from date of quotation unless withdrawn sooner. All written quotations remain in effect for all succeeding shipments or until the parties otherwise agree in writing. BRW reserves the right to revise prices on any unshipped portions, delivery of which is delayed due to any act of the Buyer.

7. Service Charges: A service charge at the maximum rate allowed by law may be imposed on all past due accounts.

8. Sales Tax (California customers only): Goods will not be shipped to customers without sales tax unless a certification of exemption (resale card) is on file at BRW’s corporate office.

9. Shipping: (a) All shipments are F.O.B. BRW’s warehouse, unless otherwise indicated. Unless “no partial shipment” has been specifically requested, BRW reserves the right to partial ship and back order any out-of-stock item, and invoice each consignment separately. Buyer should state the preferred method of shipment. In the absence of such shipping instructions, BRW shall ship the goods by whatever method BRW deems appropriate. BRW reserves the right to ship goods that are not subject to cancellation in advance of the agreed shipping date. Unless otherwise agreed in writing, delivery time is not of the essence. Except as specified in 12(b), BRW does not accept liability for any loss arising from delay in delivery of goods.

(b) Goods are at the risk of the Buyer from and after delivery to carrier, and Buyer assumes all responsibility for shortages, loss, delay or damage in transit. The carrier shall not be deemed an agent of BRW. Buyer shall pay applicable insurance charges for goods shipped, as invoiced by BRW. All claims for losses or damages incurred in transit shall be the responsibility of the carrier, and should be placed with the carrier.

(c) Unless otherwise agreed in writing, sales to international Buyers are CIP destination region port of entry (Incoterms 2010).

10. Shipment Dates: Shipment dates are estimates only. No contract will be made to ship within a specified time unless in writing signed by an officer of BRW. Absent such contract, BRW shall not be liable for damages of any kind occaisioned by BRW’s failure to meet shipping dates.

11. Changes: Buyer will be billed for any expenses due to changes requested by Buyer after any purchase order is placed and is processed.

12. Change Orders: BRW may, at its election, treat any additions or changes to purchase orders already entered as a new order.

13. Order Cancellation: (a) Buyer’s Cancellation for Convenience: Buyer may cancel any order for convenience on the following terms: (i) For standard goods, Buyer may cancel or reschedule a delivery without penalty if the cancellation is more than thirty (30) days from BRW’s Confirmed Shipping Date (as specified in BRW’s Order Acknowledgement or other document); cancellations within 30 days of a Confirmed Shipping Date must be approved in writing by a BRW sales manager and may be subject to special charges (ii) For nonstandard goods, custom goods, or standard goods with minimum usage, Buyer may cancel or reschedule more than ninety (90) days from the Confirmed Shipping Date, except that Buyer shall accept delivery of all such goods which are completed at the time of cancellation or rescheduling. Those nonstandard goods which are in the work-in-process inventory at the time of cancellation or rescheduling, shall be paid for by Buyer at a price equal to the completed percentage of the product multiplied by the price of the finished goods. Buyer also shall pay promptly to BRW the costs of settling and paying claims arising out of the termination of work under BRW’s subcontracts or vendors and any accounting, legal, and clerical costs arising out of the cancellation.

(b) Buyer’s Cancellation for Default: Upon written notice to BRW, any order may be canceled in whole or in part in accordance with the terms hereof, because of BRW’s failure to deliver goods by the Confirmed Shipping Date (this failure hereinafter called “Default”). Cancellation by Buyer for BRW’s Default, which may entitle Buyer to procurement costs, shall be effective only upon BRW’s failure to correct such Default within a reasonable period of time, but not less than thirty (30) days after receipt by BRW of written notice of such Default. Upon cancellation, Buyer, as its sole remedy, may recover from BRW as damages the difference between cost of procurement from another source (cover) and the contract price, less expenses saved as a consequence of BRW’s breach. In no event shall these damages exceed ten percent (10%) of BRW’s product price multiplied by the number of goods unconditionally (not subject to cancellation under 12(a)) ordered by Buyer which remain unshipped at the time of cancellation.

(c) BRW’s Cancellation: BRW shall have the right to cancel any unfilled order without notice to Buyer in the event that Buyer becomes insolvent, adjudicated bankrupt, petitions for or consents to any relief under any bankruptcy reorganization statute, or becomes unable to meet its financial obligations in the normal course of business. Any order that can be cancelled or rescheduled by Buyer pursuant to paragraph 12(a) may be cancelled or rescheduled by BRW if notice is given to Buyer.

14. Separability: Quotations for sale issued by BRW shall be deemed separate and divisable as to all goods offered for sale and Buyer may not refuse to receive any lot or portion of the goods shipped hereunder for failure of any other lot or portion to be delivered in compliance with the quotation, unless the right so to refuse is expressly provided for on the face of the quotation.

15. Non-Conforming Delivery and Risk of Loss: Buyer shall notify BRW of any visible defects, quantity shortages or incorrect product shipments within seven (7) days of receipt of the shipment. Failure to notify BRW in writing of any visible defects in the goods sold, or of quantity shortages, or incorrect shipments within such period shall be deemed an unqualified waiver of any rights to return goods on the basis of visible defects, shortages or incorrect shipments, subject to Buyer’s rights under Section 16. BRW shall retain a security interest in the goods sold until Buyer’s final payment to BRW for the goods. Risk of loss and title shall pass to Buyer as soon as the goods have been placed with a transport agent.

16. Returns & Exchanges: No returns or exchanges will be allowed without the prior approval of BRW. Unauthorized returns will not be accepted. Goods returned for credit must include the date of purchase and must be unused, undamaged, and in the original unopened carton. All goods returned for credit must be returned to BRW within 30 days from date of purchase, with proof of purchase enclosed and with the shipping and return charges prepaid. All returns for credit are subject to a twenty-five percent (25%) handling and service charge. Acceptance of all returns is subject to final inspection and approval upon receipt by BRW.

17. Limited Warranty: All BRW controllers are warranted against defects in materials and workmanship while used in normal service for a period of one (1) year from the date of sale to the original Buyer. BRW’s obligation is limited to the replacement of any defective controller if the unit is returned, transportation prepaid, to BRW. All other products are warranted against defects in material and workmanship while used in normal service for a period of ninety (90) days from date of purchase. This is a limited warrantly, limited to its terms. This warranty is void for goods altered, misused, taken apart, or otherwise abused. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE EXCLUDED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE. All warranty claims shall be made in writing and include, at a minimum, the following information: quantity of goods to be returned, date(s) on which the goods were received by Buyer, defect description(s) of goods to be returned, and purchase order number(s) for tracking purposes. In the event any returned goods fail to comply with the foregoing warranty, BRW will, at its option, either (a) repair or replace the defective goods, FOB BRW’s warehouse, freight prepaid, or (b) credit Buyer for the purchase price of the goods. All expenses associated with processing authorized returned goods that are found to comply with the foregoing warranty will be the responsibility of the Buyer.

18. Limited Liability: Neither BRW nor Buyer shall be liable for incidental or consequential damages, including but not limited to, the cost of labor, requalifications, rework charges, delay, lost profits, or loss of goodwill arising out of the sale, installation or use of any BRW product. If BRW has any liability for breach of contract, breach of any implied condition, warranty or representation, the aggregate liability of BRW to Buyer shall be limited in respect of any occurrence or series of occurrences to the contractual value of the products or services that are the subject of the contract.

19. Buyer’s Remedies: BRW’s obligations and liabilities under the foregoing warranty are limited to repair, replacement, or credit of the goods sold, providing a claim is made in writing and Buyer receives a return authorization number from BRW. IN NO EVENT SHALL BRW BE LIABLE FOR CLAIMS BASED UPON BREACH OF EXPRESS OR IMPLIED WARRANTY OR NEGLIGENCE, OR ANY OTHER DAMAGES, WHETHER DIRECT, IMMEDIATE, FORSEEABLE, CONSEQUENTIAL OR SPECIAL, OR FOR ANY EXPENSES INCURRED BY REASON OF THE USE OR MISUSE, SALE OR FABRICATION OF PRODUCTS WHICH DO OR DO NOT CONFORM TO THE TERMS AND CONDITIONS OF THIS CONTRACT.

20. Indemnification: Buyer agrees to hold BRW harmless from, defend, and indemnify BRW against damages, claims and expenses arising out of subsequent sales of BRW’s products containing components manufactured or distributed by BRW, and based upon personal injuries, deaths, property damage, lost profits and other matters for which Buyer, its employees or sub-contractors are or may be to any extent liable, including without limitation penalties imposed by the Consumer Product Safety Act (P.L. 92-573) and liability imposed upon any person pursuant to the Magnuson-Moss Warranty Act (P.L. 93-637), as now in effect or as amended hereafter. The warranties and remedies provided for herein are available to Buyer and shall not extend to any other person.

21. Compliance with OSHA: BRW offers no warranty and makes no representation that its products comply with the provisions or standards of the Occupational Safety and Health Act of 1970, or any regulations issued thereunder. In no event shall BRW be liable for any loss, damages, fines, penalty or expense arising under said ACT.

22. Force Majeure: BRW shall not be liable for any damage or penalty for delay in delivery or for failure to give notice of delay when such delay is due to the elements, acts of God, acts of the Buyer, act of civil or military authority, war, riots, concerted labor action, shortages of materials, or any other causes beyond the reasonable control of BRW. The anticipated delivery date shall be deemed extended for a period of time equal to the time lost due to any delay excusable under this provision.

23. Waiver: Failure by BRW to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.

24. Legal Action: In the event legal action becomes necessary in relation to these terms or conditions, or any sale of goods, Buyer agrees either, at the sole option of BRW to conduct binding arbitration in Los Angeles County, California, and that venue is proper in Los Angeles County, California should BRW elect to initiate a lawsuit as opposed to binding arbitration. The Buyer further agrees to pay the reasonable attorney’s fees and costs of BRW in the event either binding arbitration or the filing of a lawsuit becomes necessary.

25. Applicable Law: All contracts for the sale of goods by BRW shall be governed by and be construed according to the laws of the State of California.

Prices and specifications are subject to change without notice. BRW Control Systems is not responsible for misprints.