Terms and Conditions
Company Website and Conditions of Use
The content of the pages of this website is for your general information and use only. It is subject to change without notice. Nothing herein shall independently constitute a contract between the Company, as defined herein, and any other party, absent further agreement.
Neither the Company nor any third parties provide any warranty or guarantee as to the accuracy, timeliness, performance, completeness or suitability of the information and materials found or offered on this website for any particular purpose. You acknowledge that such information and materials may contain inaccuracies or errors and we expressly exclude liability for any such inaccuracies or errors to the fullest extent permitted by law.
Your use of any information or materials on this website is entirely at your own risk, for which we shall not be liable. It shall be your own responsibility to ensure that any products, services or information available through this website meet your specific requirements.
This website contains material which is owned by or licensed to the Company. This material includes, but is not limited to, the design, layout, look, appearance and graphics. Further, this website may contain material not owned by us. Reproduction is prohibited other than in accordance with the copyright notice, which forms part of these terms and conditions.
All trademarks reproduced in this website which are not the property of, or licensed to, the Company are acknowledged on the website.
Unauthorized use of this website may give rise to a claim for damages and/or be a criminal offense.
From time to time this website may also include links to other websites. These links are provided for your convenience to provide further information. They do not signify that we endorse the website(s). The Company has no responsibility for the content of the linked website(s).
You may not create a link to this website from another website or document without the Company’s prior written consent.
Your use of this website and any dispute arising out of such use of the website is subject to the federal laws of the United States and the State of Ohio.
The information contained in this website is for general information purposes only and does not constitute a contract between the Company and any other party, absent further agreement. No representations or warranties of any kind, express or implied, are given to the completeness, accuracy, reliability, suitability or availability with respect to the website or the information, products, services, or related graphics contained on the website for any purpose. Any reliance on such information is therefore strictly at the users own risk.
In no event shall the Company be liable for any loss or damage including without limitation, indirect or consequential loss or damage, or any loss or damage whatsoever arising from loss of data or profits arising out of, or in connection with, the use of this website.
Through this website you are able to link to other websites which are not under the control of the Company. The Company has no control over the nature, content and availability of those sites. The inclusion of any links does not necessarily imply a recommendation or endorse the views expressed within them.
Every effort is made to keep the website up and running smoothly. However, the Company takes no responsibility for, and will not be liable for, the website being temporarily unavailable due to technical issues beyond our control.
Internet copyright notice
This website and its content is the property of the Company, by and through its copyrights of R.W. Beckett, Delavan – © Delavan 2017 – 2022, and FIDA. All rights reserved.
Any redistribution or reproduction of part or all of the contents in any form is prohibited other than the following:
- you may print or download to a local hard disk extracts for your personal and non-commercial use only.
- you may copy the content to individual third parties for their personal use, but only if you acknowledge the website as the source of the material.
You may not, except with our express written permission, distribute or commercially exploit the content. Nor may you transmit it or store it in any other website or other form of electronic retrieval system.
Terms and Conditions for Sale of Products
SECTION 1. ENTIRE AGREEMENT
The terms and conditions set forth herein, together with a bona fide Order, as defined herein, constitute an agreement (“Agreement”) between the Company and the Buyer. Any Agreement pursuant to these Terms and Conditions shall be the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and shall supersede all prior or contemporaneous proposals, understandings, representations, warranties, promises and other communications, whether oral or written, relating to the subject transaction. In the event of any conflict between these Conditions and a written Agreement between the Parties, the final terms of such written Agreement between the Parties shall control. Any term or condition in any order, confirmation or other document furnished by Buyer at any time which is in any way inconsistent with or in addition to the terms and conditions set forth in this Agreement is hereby expressly rejected, and Companies’ acceptance of any offer or order of Buyer is expressly made in reliance on Buyer’s assent to all terms and conditions hereof.
SECTION 2. DEFINITIONS
- “Buyer” means the person or company whose Order for the Products is accepted by the Company;
- “Company” R.W. Beckett and its applicable subsidiaries and affiliates specified here, which may be amended from time to time, including Delavan Limited, Delavan Spray, LLC, Fida (Fabbrica ltaliana Dispositivi d’ Accensione) and Beckett Canada, Ltd.
- “Conditions” means the general terms and conditions specified herein;
- “Contract” means any contract between the Company and the Buyer for the sale and purchase of the Products;
- “Incoterms 2020” means the international rules for the interpretation of trade terms of the International Chamber of Commerce 2020;
- “Order” means the written purchase order placed by the Buyer;
- “Products” means any products which the Company is to supply to the Buyer in whole or in part, pursuant to a bona fide Order. The dimensional and other data published by the Company in respect of the Products is for guidance only and is subject to change without notice. If such data is critical to requirements, please contact the Company at:
- R.W. Beckett: Tel: +1 (440) 327-1060 Fax: +1 (440) 327-1064
- Delevan Spray: Tel: +1 (803) 245-4347 Fax: +1 (803) 245-4146
- Delavan Limited: Tel: +44 (0) 151 424 6821 Fax: +44 (0) 151 495 1043
- FIDA: Tel +39 041 5970120 Fax: +39 041 5970116
- Beckett Canada: Tel: +1 (519) 763-5495 Fax: +1 (519) 763-5656
SECTION 3. PURCHASE OF PRODUCTS
- Purchase Order Process
- Buyer shall place orders for the Products to be purchased by submitting one or more written purchase orders to company. All Orders shall be subject to written acceptance by the Company. No addition to or variation of these Conditions and no oral stipulation or representation shall be binding on the Company unless expressly agreed to in writing and signed by an authorized signatory of the Company.
- Except as otherwise provided for herein, no Order may be cancelled or terminated by the Buyer once it has been accepted by the Company except with the written agreement of the Company. Any such cancellation or termination shall require the Buyer to indemnify the Company in full against all losses, including loss of profit, costs, damages, charges and expenses suffered or incurred by the Company as a result of such cancellation or termination.
- Save as otherwise provided for herein, the Buyer may amend an Order only if the amendment is given within three (3) days of it being placed by the Buyer. Such amendment must be in writing and signed by both parties.
- Prices of all Products shall be those agreed or quoted by the Company at the time of Company acceptance of the Order subject to the following:
- Except where the Company has expressly stated in writing that a price is firm and has specified the time during which such price will remain firm, the Company shall have the right to change its prices, or add surcharges, based on prevailing commodity and labor costs, upon 30 days’ notice to Buyer. Such price changes and/or surcharges shall be effective for all applicable products, including previously accepted Orders. Company retains the right to affect a price change at any time for any Order in the event of any commodity price baseline increase by three (3) percent or more; Company shall notify Buyer in writing any of such price change as soon as practicable.
- The company may withdraw any Products from the range of Products offered by the Company without notice. The only exception to this right is where the Company has expressly stated in writing that a product will remain available and during what period the product will be available.
- Except as otherwise expressly stated, all prices quoted are (i) exclusive of any value added tax or any other applicable tax or fees which the Buyer shall be required to remit at the time of payment of the Order.
- Prices of all Products shall be those agreed or quoted by the Company at the time of Company acceptance of the Order subject to the following:
- Terms of Payment
- The Company shall invoice the Buyer for the Products upon delivery. Unless otherwise expressly stated and agreed to in writing, payment shall be due and payable within thirty (30) days of the date of Company’s invoice. Buyer shall make timely full payment in a manner designated by the Company, which may include payment to such address, bank accounts, or other payment form specified on such invoice. Payment shall be remitted without set-off, withholding, abatement, discount or counterclaim in the currency specified overleaf in England in immediately available funds. Payment by cheque or other negotiable instrument is ineffective until it has cleared, and the Company’s bank account is credited with the amount due.
- If the Buyer fails to make any payment under an Agreement on or before the due date the Company shall be entitled, without prejudice to any other rights or remedy it may have, to cancel or suspend any further deliveries to the Buyer under any Order and charge the Buyer interest on the amount unpaid from the due date until payment is made in full. Any interest charged shall be at the rate of 8% above the Barclays Bank Base Rate, compounded daily. All payments payable to the Company under this Contract shall become due immediately upon expiration, cancellation or other termination of this Contract without regard to any other provision.
- The Company shall be entitled to appropriate any payment made by the Buyer to any Products or services in satisfaction of any or all outstanding invoices or accounts of Buyer.
- Delivery of the Products shall be made EXW (Incoterms 2020) unless agreed to by the Company and Buyer. Buyer is solely responsible for carriage of Products from Company facilities, however if carriage from Company’s facilities is required the Products shall be delivered by such means as the Company deems appropriate, at cost to the Buyer, unless the Buyer has specified in its Order the details of the contract with the carrier which will transport the Order to Buyer or other location specified by Buyer. The costs of such transport shall be borne by the Buyer. Where the Buyer arranges for carriage, the Buyer will take delivery of the Products within 3 days of the Company giving it notice that the Products are ready for delivery. Failure of Buyer to take possession of Order within three (3) days will result in the assessment of storage fees to Buyer, as specified herein.
- The Company shall endeavor to comply with quoted delivery dates, but time for delivery shall not be of the essence. Except as otherwise provided for herein, Company shall not be liable for any failure, delay or error in delivery nor shall it be liable for any consequential loss, including loss of profit, costs, damages, charges or expenses arising directly or indirectly therefrom however caused.
- If the Buyer fails to take delivery of any Products when they are ready for delivery or to provide adequate instructions, documents, licenses or authorizations required to enable the Products to be delivered on time, except due to Company’s delay, the Products will be deemed to have been delivered and accepted without prejudice to its other rights. Company may: (a) store or arrange for the storage of the Products until actual delivery or sale and charge the Buyer for all related costs and expenses including, without limitation, storage and insurance); and/or (b)following written notice to the Buyer, sell any of the Products at the best price reasonably obtainable in the circumstances and charge the Buyer for any shortfall below the price under the Contract, together with any associated expenses of such resale.
- If the Buyer orders incorrect Products the Company may, at its sole discretion, accept the return of such Products provided that:
- the Products are returned unused, in their original unopened packaging, and, in the Company’s sole opinion, are in good condition; and
- the Products are standard items that the Company, in its sole opinion, reasonably believes can be re-sold within twelve months of the date of their return.
- If the above conditions are met the Company will charge a 25% restocking fee (of the invoiced price and tax) and an additional charge based on the elapsed time from the Companies original shipping date to Customer and the Customer notice of their desire to return the subject product to the Company. This additional charge will be per the following schedule:
- 0 – 12 months no additional charge
- 13 – 24 months 30% additional charge (of the invoiced price and tax)
- 25 – 36 months 50% additional charge (of the invoiced price and tax)
- No returns will be accepted after 36 months after the Company ship date.
- If a return for credit is accepted the Buyer will pay for any and all costs involved in returning the Products to the Company’s original shipping location.
- The Company shall have no liability for any claim made after shipment in respect of any defect in the Products which would be apparent on inspection, or with respect to any damage or loss once it has left Company’s facilities or during transit.
- The Buyer may not reject any Products by reason of short delivery. The Company will endeavor to supply the exact quantity of Products ordered but the Company may supply less than the exact quantity ordered. If the Company fails to supply the exact quantity of Products ordered, otherwise than due to the Buyer’s default or a cause beyond the Company’s reasonable control (in which circumstances there shall be no variation to the price), the Company’s liability shall be limited to, at Buyer’s election:
- allowing the Buyer a pro rata allowance to the price of the Products, or
- the supply by the Company as soon as reasonably practicable of substantially similar products to replace the Products which the Company has failed to supply, or
- the cost to the Buyer (in the cheapest available market) of substantially similar products to replace the Products which the Company has failed to supply over the price of such Products; whichever of the foregoing as the Company may elect.
- The Company may deliver the Products by commercially reasonable installments and/or perform any services in commercially reasonable stages and shall be entitled to payment for all installments of Products and/or services. Without limiting the other provisions herein, no failure or defect in delivery with respect of any contract or installment shall be deemed sufficient grounds for Buyer’s cancellation or rejection of any Contract or Order.
SECTION 4. PASSAGE OF TITLE AND RISKS
- Unless otherwise agreed in writing, risk and title of ownership in respect of the Products supplied to the buyer shall pass to the Buyer upon dispatch from the Company’s applicable manufacturing facility, or other facility designated by Company.
- Risk of damage to or loss of the Products shall pass to the Buyer upon delivery. Ownership of the Products shall not pass to the Buyer until the Company has received in full all sums due to it in respect of (i) the Products and (ii) all other sums which are or which become due to the Company from the Buyer on any account.
- Until ownership of the Products has passed to the Buyer, the Buyer shall: (a) hold the Products on fiduciary basis as the Company’s bailee; (b) store the Products (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property; (c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Products; and (d) maintain the Products in a satisfactory condition insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company.
- The Buyer may resell the Products before ownership has passed to it solely on the following conditions: (a) any sale shall be affected in the ordinary course of the Buyer’s business at full market value and the Buyer shall account to the Company accordingly; and (b) any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
- The Company shall be entitled to recover payment for the Products notwithstanding that the ownership of any Products may not have passed from the Company.
- The Buyer grants the Company, its agents and employees an irrevocable license at any time to enter any premises where the Products are or may be stored in order to inspect them, or where the Buyer’s right to possession has terminated, to recover them.
- Where ownership of the Products has not passed to the Buyer, Company may be entitled to maintain an action for the price under applicable law.
SECTION 5. SPECIFICATIONS, DESCRIPTIONS, DRAWINGS AND INTELLECTUAL PROPERTY
- The Company reserves the right to make any changes in the specification of any Products and/or services which are required to conform with any applicable US, non-US in-country or international health and safety, quality standards or statutory requirements. Where products are manufactured and/or services performed in accordance with information or drawings supplied by the Buyer or to its design or specification or where standard products and/or services of the Company are altered in accordance with the Buyer’s instructions, no guarantee or warranty is given by the Company as to the practicability, efficiency, safety or otherwise of the Products and/or services. Further, Buyer shall indemnify and keep the Company indemnified against all liabilities in relation to such Products and/or services for infringement of any intellectual property right including without prejudice to the generality of the foregoing patents, registered designs and copyright; breach of any provision of any statute, statutory instrument or regulation; any impracticability, inefficiency or lack of safety or other defect in the Products and/or services where such defect is due, in whole or in part, to faults or omissions in such information, drawings, design, specification or instructions. No variation in the specification or design of any Products and/or services which in the reasonable opinion of the Company does not affect the suitability of the Products and/or services for the purpose for which they are supplied by the Company will constitute a breach of contract or impose upon the Company any liability whatsoever. Unless otherwise expressly agreed in writing the Company shall be under no obligation to supply goods and/or services in accordance with any specification, information, drawings or sample provided by the Buyer.
- All drawings, models and similar items prepared by the Company and the copyright and other intellectual property rights therein shall remain the property of the Company, and such materials shall be returned by the Buyer on demand. All patents, registered designs, know-how or other intellectual property rights, samples, models, designs and drawings relating to goods and/or services their development or creation shall remain the Company’s property, shall be treated as confidential and shall not be copied, reproduced or disclosed to any third party without the Company’s prior written consent.
- No right or license is granted to the Buyer under any patent, copyright, registered design or other intellectual property right except the right to use or re-sell Products or use services supplied in the ordinary course of the Buyer’s business and any grant of shop rights to the Buyer by the Company is hereby specifically excluded.
- The Company will be under no liability whatsoever to the Buyer in respect of any loss, damage or claim incurred by or made against the Buyer should any Products and/or services infringe any intellectual property right including, without prejudice to the generality of the foregoing, patents, registered designs, design right and copyright or the provision of any statute, statutory instrument or regulation.
- The Buyer shall not without the Company’s prior consent allow any trademarks of the Company or other words or marks applied to the Products to be obliterated, obscured or omitted, nor add any additional marks or words.
SECTION 6. INSPECTIONS
Within 30 days of each delivery the Buyer shall inspect received Products and report to Company any Order non-conformance (quality, condition, quantity, and specification of the received Products). After 30 days, absent no such notification, the Company Shall consider the order fulfilled. All returns of defective Products must be authorized in advance in writing by the Company and returned to the Company’s place of business at the Buyer’s cost and risk as soon as possible, and in any event within no more than thirty (30) days after such authorization.
SECTION 7. WARRANTY
- Company Products are warranted only to purchasers from Company for resale or for use in purchasers’ own business or original equipment manufacturer, against defects in workmanship or materials under normal use, maintenance and service (rental use excluded), if notice of said defect is received by occurs.
- COMPANY EXPRESSIVELY DISCLAIMS ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM ANY COURSE OF DEALING OR CUSTOM OR USAGE OR TRADE.
- Except for authorized members of Beckett executive management, no person, including any dealer or representative of Company is authorized to make any representation or warranty on behalf of Company in addition to or inconsistent with these provisions. Purchasers to whom these provisions apply agree to hold Company harmless from claims by their customers in excess of the obligations of Company expressly set forth herein
- THE COMPANY SHALL HAVE NO WARRANTY OBLIGATION FOR PRODUCTS OR EQUIPMENT SUBJECTED TO MISUSE, NEGLECT, OR ACCIDENT; NOR DOES IT APPLY UNLESS THE PRODUCT IS PROPERLY INSTALLED BY A QUALIFIED, COMPETENT TECHNICIAN, FAMILIAR WITH THE PRODUCT, WHO IS LICENSED WHERE STATE AND LOCAL CODES REQUIRE, AND WHO IS EXPERIENCED IN MAKING SUCH INSTALLATIONS IN ACCORDANCE WITH NFPA 31 OF THE NATIONAL FIRE PROTECTION ASOCIATION, THE THEN APPLICABLE EDITION OF THE NATIONAL FUEL GAS CODE (NFPA 54) AND IN ACCORDANCE WITH ALL APPLICABLE NATIONAL, STATE, LOCAL CODES, AND ANY OTHER AUTHORITIES HAVING JURISDICTION.
- Except as otherwise provided for herein, Company warrants that upon delivery the Products will comply with the specification(s).
- General Company Warranty Terms:
Except as may otherwise be provided for in an applicable written product warranty, Company shall not be liable for a breach of the warranty unless a claim is brought within 12 months from the date of delivery or 90 days from the date of installation, whichever is earlier.
- The Company shall not be liable for a breach in condition where:
- the failure to comply with the specification arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products, or if there are none, good trade practice; or
- the Buyer alters or repairs such Products without the written consent of the Company; or
- the failure to comply with the specification arises from any design defect in any drawing, design or specification supplied or approved by the Buyer; or
- the identification or serial number of any of the Products thereon has been altered, defaced or removed or if Products (including Products on which services have been performed) have not been properly maintained in accordance with the Company’s recommended maintenance procedure or have been subjected to any misuse, unauthorized repair, replacement, modification or alteration; or
- the failure results from ordinary wear and tear; or
- the failure results from and is caused by parts, components or aspects of products other than the Products or services supplied by the Company.
- Where any valid warranty claim is brought under this section the sole and exclusive obligation of the Company shall be limited to one of the following:
- replacement of the Product(s); or
- repair of the Product(s); or
- refund to the Buyer the price of the Products or a proportionate part of the price, at no additional charge, except that Buyer shall be responsible for the cost of shipment of such Product(s) back to Company; or
- Company may provide the Buyer with credit against future orders, with no further liability to the Buyer.
- In no event shall the Company be responsible for any labor or other costs associated with replacement of warrantied component(s) or for consequential damage caused by product failure.
- Warranty Policies Unique to Specific Product Lines. These specific terms call out the warranty period and products covered by the Company warranty. In the event of any conflict between this document and a Product line specific warranty, the Product line specific warranty shall prevail:
- For R.W. Beckett products: https://www.beckettcorp.com/wp-content/uploads/Limited-Warranty-062320.pdf
- For Delavan Spray products: There are no Delavan Spray Warranty Policies unique to specific product lines.
- For Delavan Limited products: There are no Delavan Limited Warranty Policies unique to specific product lines.
- For FIDA products: The FIDA warranty for all products is 12 months from the date of manufacture.
- For Beckett Canada Ltd. products see: https://www.beckettcorp.com/wp-content/uploads/Limited-Warranty-062320.pdf
- Warranty claims of Company branded products, that require the product be returned, hereunder shall be returned freight prepaid to the applicable Company office, unless otherwise specified between the parties. Returns must be authorized in advance.
- R.W. Beckett: See https://www.beckettcorp.com/support/warranty/
- Delevan Spray: 4334 Main Highway, Bamberg, SC 29003-8456
- Delavan Limited: Gorsey Lane Widnes, Cheshire, WA8 ORJ
- FIDA: VIA TIZIANO 14 – 31021 MOGLIANO VENETO – TV – ITALY
- Beckett Canada: See https://www.beckettcorp.com/support/warranty/
- At the Companies discretion, credit or replacement will be provided to the Buyer unless the returned product is determined to be free of defect, outside of the warranty period listed and/or damaged through misuse or neglect. In this case the equipment will be returned at the Buyer’s expense, or scrapped, at the discretion of the Company.
- The Buyer shall indemnify the Company in respect of any warranty investigations conducted by it which results in a refusal of a warranty claim for any of the reasons specified above.
SECTION 8. LIABILITY
- The Company shall not be liable to the Buyer for any shortfall in the quantity of Products delivered unless the Buyer inspects the Products and notifies the Company of any claim within thirty (30) days of delivery. Where such valid claim is made the Company shall supply the shortfall free of charge, or in the alternative, the invoice for said Products may be reduced by the sum equivalent to the shortfall, with no further liability to the Buyer.
- The Company warrants to Buyer that its Products are reasonably free from defects in material and workmanship. The Company, at its option, will either replace or repair a Product that is deemed to have a material defect. If any third party asserts a warranty claim under applicable law, such warranty claim must be presented to the Buyer for resolution, and Buyer accepts such responsibility. Buyer shall notify third parties who purchase Product(s) from them, in writing, of this requirement.
- THIS WARRANTY IS LIMITED TO THE PRECISE TERMS HEREWITH AND PROVIDES EXCLUSIVE REMEDIES EXPRESSLY IN LIEU OF ALL OTHER REMEDIES, AND IN PARTICULAR THERE SHALL BE EXCLUDED THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IT IS THE RESPONSIBILITY OF THE BUYER TO PROVIDE SUITABLE MONITORING AND/OR BACKUP SYSTEMS TO PREVENT PROPERTY DAMAGE OR INCONVENIENCE DUE TO PRODUCT SHUTDOWN OR FAILURE. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY LABOR COST FOR REMOVAL AND REPLACEMENT OF PARTS OR EQUIPMENT, INCIDENTAL OR CONSEQUENTIAL DAMAGE OF ANY NATURE, INCLUDING BUT NOT LIMITED TO WATER DAMAGE, LOST PRODUCTION, DISCOMFORT, OR FROZEN PLUMBING.
- The Company neither assumes nor authorizes any person to assume, for or on behalf of the Company, any other liability or obligation in connection with the sale of this equipment. The Company’s liability and the Buyer’s exclusive remedy being limited to credit or replacement, as set forth above.
- THE COMPANY SHALL HAVE NO LIABILITY FOR PRODUCTS OR EQUIPMENT SUBJECTED TO MISUSE, NEGLECT, OR ACCIDENT; NOR DOES IT APPLY UNLESS THE PRODUCT IS PROPERLY INSTALLED BY A QUALIFIED, COMPETENT TECHNICIAN, FAMILIAR WITH THE PRODUCT, WHO IS LICENSED WHERE STATE AND LOCAL CODES REQUIRE, AND WHO IS EXPERIENCED IN MAKING SUCH INSTALLATIONS IN ACCORDANCE WITH NFPA 31 OF THE NATIONAL FIRE PROTECTION ASOCIATION, THE LATEST EDITION OF THE NATIONAL FUEL GAS CODE (NFPA 54) AND IN ACCORDANCE WITH ALL APPLICABLE NATIONAL, STATE, LOCAL CODES, AND ANY OTHER AUTHORITIES HAVING JURISDICTION.
- The Company shall not be liable for any modification or improper use of Company Products unless approval for such modification or use is approved in writing by the Company. Improper use or modification of Company Products may result in fire, explosion or asphyxiation hazard resulting in possible property damage, personal injury or death.
SECTION 9. THIRD PARTY RIGHTS
- Except as may be provided for under applicable law, no third party not a party to an Agreement, including any employee, officer, agent, representative or sub-contractor of either party shall have the right to enforce any provisions of the Contract which expressly or by implication confers a benefit on such third party without express prior written consent of the Parties.
- Even in the event of the existence of any alleged third party beneficiary to the subject Agreement, including any employee, officer, agent, representative or sub-contractor of either party, the subject Agreement may be terminated, canceled or amended without the consent of any such alleged third party beneficiary.
SECTION 10. TRADEMARKS
- Buyer shall not remove from the Products or their packaging or documentation, or alter, any of Company trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the Products or their packaging or documentation, without the prior express written consent of the Company. The Company hereby grants to Buyer a non-exclusive, non-transferable limited license to use Company trademarks relating to the Products provided, however, that:
- Buyer shall use such marks only in connection with advertising or promotion of the Products to denote their origin,
- Buyer shall clearly designate that such marks are owned by Company, and
- Buyer shall otherwise comply with Company then-current policies for use of its marks. Any use of Company trademarks by Buyer shall:
- shall be in capital letters, unless such trademark includes a design, in which case the designed trademark shall be used;
- if they are registered in the United States Patent and Trademark Office, shall be accompanied by the “®” symbol;
- if they are not registered in the United States Patent and Trademark Office, shall be accompanied by the “™” symbol; and
- shall be followed by a common descriptive name for the Products.
- Buyer shall not, by virtue of the foregoing license, acquire any right, title or interest in Company trademarks; and Buyer shall not contest or otherwise challenge the right, title and interest of Company in its trademarks or the registration thereof. Buyer’s use of Company trademarks shall accrue to the benefit of the Company.
SECTION 11. OWNERSHIP OF PROPRIETARY MATERIAL IN PRODUCTS
Buyer acknowledges that the Products contain proprietary components, including but not limited to electronics, software and technical information of Company or its licensor (collectively “Proprietary Materials”) and that, as between Company and Buyer, ownership and/or all rights of all patents, copyrights, mask work rights, trademarks, trade names and any other intellectual property rights relating to or residing in the Products and the Proprietary Materials shall remain with Company or its licensor. Buyer understands and agrees that this Agreement does not constitute a sale of or license in or to any Proprietary Materials or any other intellectual property rights; provided, however, that Buyer and its customers shall have the limited right to use Proprietary Materials in the course of using the Products. Buyer shall promptly notify Company of any actual or threatened misappropriation or infringement of Company’s proprietary rights which comes to Buyer’s attention.
SECTION 12. ASSIGNMENTS
No right or obligation of Buyer under this Agreement shall be assigned, delegated or otherwise transferred, whether by agreement, operation of law or otherwise, without the prior express written consent of the Company, and any attempt to assign, delegate or otherwise transfer any of Buyer’s rights or obligations hereunder without such consent shall be void. Notwithstanding the foregoing, either party may assign this Agreement to any affiliate of that party or in connection with the sale or transfer of all or substantially all of the assets of the product line or business to which it pertains. This Agreement shall bind Buyer and its permitted successors and assigns. Notwithstanding anything to the contrary herein, Company may engage subcontractors to perform any of its obligations under this Agreement.
SECTION 13. FORCE MAJEURE
The Company shall not be liable to the Buyer in any manner or be deemed to be in breach of this Contract because of any delay in performing or any failure to perform any of the Company’s obligations under this Contract if the delay or failure was due to any cause beyond the Company’s reasonable control.
SECTION 14. INSOLVENCY AND DEFAULT
- A. In the event that Company reasonably believes that any of the events or conditions specified below have, has or is about to occur, or if Buyer notifies the Company in writing of such event. Company may, at its discretion, whether or not it has received notice from the Buyer, without prejudice to its other rights hereunder or otherwise, at any time by notice to the Buyer do any one or to the extent not inconsistent with one another the following:- (i) terminate, cancel and/or rescind the contract and any other contracts with the Buyer; (ii) revoke any express or implied authority to sell, use or consume any Products the property in which has not passed to the Buyer (“relevant Products”); (iii) require the Buyer to deliver to the Company any relevant Products, or where the Buyer fails to remit the subject Products Company may enter the premises where the Product(s) are believed to be and sever them therefrom, without liability for any resulting damage, and the Client shall indemnify the Company against all liabilities in relation to such action; (iv) re-sell any relevant products or any other Products to a third party without giving notice to the Buyer of the Company’s intention to re-sell; (v) declare (whereupon there shall forthwith become) immediately due, payable and interest-bearing under Section 3(C) above any amounts owed by the Buyer to the Company under any contract; (vi) suspend any deliveries or provision of services to be made under any contract with the Buyer; (vii) proceed against the Buyer for the price of the Products and/or services and/or damages; (viii) require the Buyer to indemnify and keep the Company indemnified against all liabilities in relation to any purported cancellation or failure to take delivery, including without limitation the payment of license fees or other fees incurred by the Company in the course of its business of manufacturing and/or supplying thereof together with the cost of any material, plant or tools used, or intended to be used, for the Buyer’s order(s), the cost of labor and other overheads, and redundancy payments primarily attributed to such purported cancellation. The events or conditions include:
- If the Buyer fails to pay the price when due or otherwise breaches any contract with the Company; or
- ii. If the Buyer is, or for statutory purposes is deemed to be or appears to be unable to pay its debts as they become due, or the value of its assets is less than the amount of its liabilities (including contingent and prospective liabilities) or the Buyer otherwise becomes insolvent or suspends payment or threatens to do so or ceases to trade; or
- If steps are taken to: (a) propose any composition, scheme of arrangement, compromise or arrangement involving the Buyer and its creditors generally; or (b) obtain an administration order or appoint any administrative or other receiver or manager in relation to, or put in force any legal process against, the Buyer or any of its property; or (c) enforce any charge or other security over the Buyer’s property; or (d) repossess any goods in the Buyer’s possession under any agreement; or (e) wind-up or dissolve the Buyer; or
- Where the Buyer is an individual or partnership, Buyer or any partner dies or any steps are taken with a view to making a bankruptcy order against Buyer or any partner.
- If the Buyer does or fails to do anything which would entitle any person to appoint a receiver of the whole or any part of the Buyer’s assets or which would entitle any person to present a Petition for an Administration order or the Winding Up of the Buyer, makes any agreement with its creditors, or suffers any execution to be levied upon its property, or ceases or threatens to cease, to carry on business or commit any breach of this or any other Contract between the Company and the Buyer, the Company may without prejudice to any of its other rights under these conditions stop any goods in transit and/or immediately suspend further deliveries . Further, Company may immediately terminate the Contract by providing written notice to the Buyer.
SECTION 15. SOFTWARE, LICENSE FOR SOFTWARE AND DOCUMENTATION
Certain Products may include software to collect information about how, and under what conditions, the Product is used and functions, The information collected by the Products may be used by Company for purposes including, but not limited to, assistance with product repairs, diagnostics, research and analytics to improve Product functionality or optimize Buyer usage, product development and quality control/improvement. No end-user or customer-identifiable data will be provided to any third party. If Buyer resells the Products, Buyer will notify its customers that Company is collecting this information and will contractually bind its customers to in turn notify their customers that such information may be collected and used by the Company as described herein.
SECTION 16. WAIVER
No waiver by the Company of any breach of the Contract by the Buyer shall be construed as a waiver or any subsequent breach of the same or any other provision.
SECTION 17. SEVERANCE
If any provision of these Conditions or any part thereof is held by any competent court or other authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
SECTION 17. GOVERNING LAW AND JURISDICTION
These Conditions shall be governed by and construed in accordance with the applicable laws of the jurisdiction(s) in which the transactions herein take place or may be conducted through.