Terms & Conditions - beyerdynamic Products

These Terms & Conditions are proposed by any business entity or natural person (“Buyer”) who seeks a business relationship with Beyer Dynamic, Inc. (“Company”), a Florida corporation doing business as “beyerdynamic” and authorized to transact business in New York, by either: (1) submitting to the Company (a) a document captioned “Open Account & Credit Application” or similar document that may be requested by the Company at the time of Buyer’s submission or (ii) a purchase order (at any time or from time-to-time) for any products of the Company (“Products”) that are described in a document captioned “Confidential US Dealer Price List – Consumer Audio Products” or in a document captioned “US Dealer Price List – Conference and Presentation Products (each such document, as the case may be, “Price List”), which document is only referenced in (not incorporated into) these Terms & Conditions; or (2) accepting or otherwise paying for any Products delivered by or on behalf of the Company (at any time or from time to time). These Terms & Conditions will be deemed a binding contract between Buyer and the Company (“Contract”) if the Company affirmatively acknowledges its acceptance of any purchase order by Buyer (or the Company delivers to Buyer any Product that is the subject of a Buyer’s purchase order to the Company).

1. Scope and Acceptance. Any offer for Products (or any acceptance of this Contract) is limited to acceptance of the express terms of this Contract. No form of assent shall add to, delete from, or change any terms and conditions of this Contract, and the Company objects to and rejects all such additions, deletions, or changes in advance pursuant to this Contract (and all such additions, deletions, or changes shall not be binding nor effective unless assented to in writing by an authorized representative of the Company). If the Company’s fulfillment of any Order (as defined below) is considered an acceptance of Buyer’s offer, such acceptance is expressly conditioned on the Company’s assent to any additional or different terms contained in this Contract. If this Contract is considered a confirmation of an existing contract, the parties agree that this Contract constitutes the final, complete and exclusive terms and conditions of the contract between the parties. Nothing in this Contract shall be deemed to require or in any way imply any obligation of the Company to accept any Order (as defined below), even if the Company has customarily or previously from time-to-time (and regardless of its previous “course of dealing,” as defined in the Uniform Commercial Code) accepted any previous or contemporaneous Order from Buyer. Nothing in this Contract shall be deemed to impose any fiduciary duty on the Company or any other obligation to commence or continue any business relationship with Buyer or anyone else.

 

2. Orders; Prices; Payments; Minimum Order. Each offeror purchase order for Products submitted by Buyer to theCompany (“Order”) shall identify the Products and specifythe quantity of the Products to which an Order applies. AnOrder may request a delivery date or dates, a method ofdelivery for the Products and a "ship to" location. Unlessotherwise stated on the Price List, the prices for any Productsdo not include any freight, insurance, taxes, custom duties, orother governmental charges or assessments. The Company(in its sole discretion) may charge Buyer for all freight costsand expenses, including a drop ship fee of $15.00 and aminimum freight charge of $15.00 per shipment (whichamounts are subject to change by the Company from time totime). The Company reserves the right at any time to requirecash payment before shipment. Otherwise, if Company (in itssole discretion) sells the Products to Buyer on credit,payment for such Products is due within 30 calendar daysafter the date set forth on the Company’s invoice to Buyerfor the Products. The Company reserves the right to alter theterms of or fix a limit of credit. All prompt pay discountsmust be taken within the time period specified on theinvoice. All unearned discounts, if any, will be re-billed. Allpayments still owing thereafter shall accrue interest at a ratewhich is the lesser of 2.0% per month or the maximumamount permitted by law. Buyer shall pay all collection costsand expenses, including reasonable attorney's fees, incurredby the Company in connection with collecting or attemptingto collect any unpaid amounts. The cumulative prices for theProducts referenced in such Order must be at least $100.00USD. A Buyer who is a merchant (as defined in Article 2 ofthe UCC) must purchase from and pay to the Company acumulative minimum of $5,000 (Five Thousand dollars) ofProducts (excluding any applicable taxes, discounts, freightcharges, and other ancillary charges) in each calendar year asa condition to such merchant Buyer having an active accountstatus with the Company.

 

3. Shipment and Delivery. (a) Unless otherwise stated onthe document evidencing the Company’s acceptance of theOrder, terms are F.O.B. Farmingdale, NY. The Companymay ship and Buyer shall accept, the Products ordered in oneor more lots, notwithstanding the delivery dates provided inan Order. The Company may use any commerciallyreasonable means of carriage but in good faith will attempt tocomply with Buyer's request as to method of shipment, atBuyer’s cost.(b) The Company does not guarantee any date of delivery orshipment. However, the Company shall in good faith attemptto effect delivery by the date specified in the Order, exceptthat the Company shall not be responsible or liable for anydamages, including incidental, special, or consequentialdamages, arising from the Company’s failure to deliver,delay in delivery, or any other default in delivery due to actsof Buyer, acts of God, fires, labor disputes, strikes orlockouts, war, acts of terrorism or similar hostilities, civilcommotion, delays in transportation, shortage oftransportation facilities, fuel, labor or raw material or othersupply, or governmental acts, laws, demands, regulations orrequirements, in any way affecting the Company or itssources of supply, nor for any other cause beyond itsreasonable control. No such failure or delay shall beconsidered a breach of this Contract by the Company. (c)When applicable, the Company’s tender to Buyer or itsauthorized agent or bank of the appropriate shippingdocuments shall constitute the Company’s full and finaldelivery of Products.

 

4. Title; Security Interest; No Trans-Shipping. Title andrisk of loss with respect to the Products will pass to Buyerupon their delivery to the common carrier in connection withany Order. Until the Company receives indefeasible paymentof all amounts due in connection with any Order, Buyergrants to the Company a security interest in the Products andthe proceeds from each Order to secure payment of all suchamounts to the Company. In connection with such securityinterest, Buyer appoints the Company as attorney-in-fact toexecute and/or file any financing statements and instrumentsrequired or advisable pursuant to the Uniform CommercialCode (UCC). In no event is a Buyer who is a merchant (asdefined in Article 2 of the UCC) authorized to ship or deliverany Products to another Person for such Products’ re-sale bysuch Person unless such Buyer obtains the advance writtenconsent of the Company (and title to such Products shall notbe free and clear of encumbrances from the Companywithout such advance written consent).

 

5. Warranties; Disclaimer of Warranties. (a) TheCompany warrants that each Product shall perform inaccordance with specifications in that certain documentcaptioned “Guarantee Terms,” which is enclosed with suchProduct (and which specifications are hereby incorporated byreference into this Contract). Buyer is responsible for allfreight and shipping costs incurred for shipping any Productthat is subject to a valid warranty for such Product to thelocation designated by the Company or its authorizeddesignees.(b) The foregoing warranty extends to all purchasers orowners of the Product during the warranty period. Buyerassumes the responsibility for selecting the Product as beingadequate for and appropriate for the purpose intended byBuyer.(c) IN ADDITION TO ANY OTHER LIMITATIONS ONRIGHTS OF OR REMEDIES TO BUYER, NO OTHERREPRESENTATION OR WARRANTY, EXPRESS ORIMPLIED, IS MADE WITH RESPECT TO THEPRODUCTS, AND THE COMPANY HEREBYEXPRESSLY DISCLAIMS ANY AND ALL SUCHOTHER REPRESENTATIONS OR WARRANTIES,EXPRESS OR IMPLIED, INCLUDING WITHOUTLIMITATION ANY REPRESENTATION ORWARRANTY AS TO MERCHANTABILITY OR FITNESSFOR A PARTICULAR PURPOSE.(c) If any model or sample was shown to Buyer, such modelor sample was used merely to illustrate the type and qualityof the Products and not as a promise or affirmation that theProducts would necessarily continue to exist (or be availablefor delivery) or to conform to the model or sample that wasshown to Buyer.

 

6. Limitations of Liability. (a) The Company’s totalcumulative liability in any way arising from or pertaining tothe Products or an Order shall not in any case exceed theaggregate purchase price for such Products. The Companyshall incur no liability for damages, shortages, or othercauses that occur after the Company delivers the Products tothe common carrier.(b) BUYER’S SOLE AND EXCLUSIVE REMEDIES INCONNECTION WITH ANY DAMAGES ARISING FROMANY PRODUCT ARE SET FORTH IN SECTIONS 5, 6,AND 11 OF THIS CONTRACT. THE COMPANY SHALLHAVE NO LEGAL RESPONSIBILITY OR LIABILITYTO (AND IS NOT IN PRIVITY WITH) ANY ENTITY ORNATURAL PERSON THAT IS NOT A DIRECT PARTYTO THIS CONTRACT. IN NO EVENT SHALL THECOMPANY HAVE ANY LIABILITY FOR INCIDENTALOR CONSEQUENTIAL DAMAGES OF ANY KIND,WHETHER BUYER’S CLAIM IS BASED ON TORT,WARRANTY, STRICT LIABILITY, OR OTHERWISE—EVEN IF THE COMPANY HAS BEEN ADVISED OFTHE POSSIBILITY OF SUCH DAMAGES.

 

7. Indemnification. Buyer agrees to defend, indemnify andhold harmless the Company, its officers, directors,employees, agents, contractors and suppliers, from andagainst any and all claims, demands, liabilities, losses,lawsuits, expenses and costs, of any kind or nature (includingreasonable attorney fees) arising out of (i) bodily injury,death or property damage to any person (includingemployees of Buyer or any subsequent owner or user of theProducts) related to or arising out of the handling,transportation, possession, further manufacture, assembly,use or resale of the Products or (ii) any act or omission of theBuyer, its agents, employees, or subcontractors, except forinjury or damage proximately caused solely by theCompany's negligence with respect to an Order or a Product.

 

8. Solvency. As of the date of each Order, Buyer representsand warrants to the Company that Buyer is not insolventwithin any of the meanings of that term in Section 1-201(23)of the Uniform Commercial Code. Buyer acknowledges thatthis representation is intended to satisfy the requirements ofSection 2-702(2) of the Uniform Commercial Code, and isaddressed specifically to the Company.

 

9. Buyer’s Notification of Product Sales Locations. AllBuyers are required to notify and register with an authorizedrepresentative of the Company (i) the name of any alias andor market place stores or point of sale for any Products, (ii)secondary distribution resellers for any Products, includingresellers using a different business name, auction type websites, or any online internet sale offerings that are sellingProducts under a business name (other than the businessname that Buyer has previously notified the Company inwriting would be used for sale of the Products). BeforeBuyer sells any Products, Buyer shall provide to theCompany the names of any stores (whether such store isonline or has a physical location), web site address, and pricefor which each Product is listed (or solicited for offer).

 

10. Shipping Instructions for Product Repairs. (a) AllProducts for which repairs are requested (whether or notunder warranty) must be delivered (at Buyer’s sole cost andexpense) to the Company’s designated service center andclearly marked “Attention: Repair Service.”(b) All repairs for Products that are under warranty arecovered by the terms and conditions of the “GuaranteeTerms” referenced in Section 5. In addition, with respect toProducts that are under warranty, the Company isresponsible for paying all freight and shipping costs todeliver the repaired Product to Buyer.(c) With respect to repairs for Product that are *not* underwarranty are subject to the terms and conditions set by theservice center designated by the Company. The Companydoes not have any responsibility or obligations with respectto any repairs for Products that are not under warranty.(d) In any case, any Product delivered to the Company (or itsservice center) for repair must include with such Product awritten description of the nature of the problem or repairrequested along with the contact information of the sender orthe person requesting the repair. If the Product is underwarranty, include a copy of the receipt or invoice indicatingdate of purchase.

 

11. Product Returns. Products for which Buyer does notrequest any repair (whether or not such Product is underwarranty) may be returned to the Company, subject to theprovisions in this Section 11 and the provisions in the“Guarantee Terms” referenced in Section 5. Any suchProduct return will be for credit or inventory adjustmentonly. A restocking fee of 20% will be imposed on all returnsfor credit unless accompanied by a stock balancing order atleast two times the Company’s sale price of the returnedProduct. In addition, the returned Product must be in new,saleable condition, current model range only and must havebeen invoiced and shipped within 90 calendar days after thedate that such Product was purchased. A returned Productmay be delivered to the Company’s designated service centeronly if the Company issues to Buyer a return authorizationnumber (a "Return Authorization Number"). The ReturnAuthorization Number must appear on all packages andpaperwork in connection with such Product return..Nevertheless, the Company’s issuance of a ReturnAuthorization Number does not bind the Company to acceptsuch Product return. The Company will make its finaldecision as to whether to accept the returned Product afterthe Company (or its designated service center) has inspectedthe returned Product.(b) Notwithstanding the immediately preceding paragraph,ALL PRODUCTS LISTED IN THE DEALER PRICE LISTTHAT ARE LABELED OR IDENTIFIED AS MCS, MCSD,MCW-D, QUINTA, ORBIS, SIMULTANEOUSINTERPRETATION SYSTEM, CONFERENCE SYSTEMSAND RELATED COMPONENTS, ACCESSORIES, ANDSOFTWARE (INCLUDING ANY "SPECIAL ORDERPRODUCTS" OR OTHER PRODUCTS NOTED BY “*”)ARE NOT REGULAR INVENTORY ITEMS AND AREMANUFACTURED FOR EACH SPECIFIC ORDER.UNDER NO CIRCUMSTANCE WILL THESEPRODUCTS BE ACCEPTED FOR RETURN, CREDIT, OREXCHANGE.

 

12. Intellectual Property. The Company acknowledges thatit does not have or acquire any rights or interests in anyintellectual property that is owned or licensed by Buyer.Conversely, Buyer acknowledges that Buyer does not haveor acquire rights or interests have or acquire any ownershipinterest in any intellectual property that is owned or licensedby the Company and shall be used by Buyer solely for thepurposes of selling the Products. With respect to anyintellectual property that is owned or licensed by theCompany, Buyer shall not do any of the following: (a) takeany action that interferes with or is adverse to any of theCompany’s rights thereto, including the Company’sownership or exercise of such rights; (b) challenge any of theCompany’s rights, title, or interest thereto, (c) register orapply for registrations, anywhere in the world, for theCompany trademarks or any other trademark that is similarto the Company’s trademarks or that incorporates theCompany's trademarks in whole or in confusingly similarpart; (d) use any mark, anywhere, that is confusingly similarthereto; (e) engage in any action that tends to disparage,dilute the value of, or reflect negatively such intellectualproperty or on any Products; (f) use it as a domain namewithout prior written consent from the Company; (g) sell theProducts under any other mark; and (h) deface, alter,obscure, change, revise, remove, cover up, or otherwiseinterfere with any trademarks or other intellectual property ofthe Company that is attached, affixed, or appurtenant to theProducts (or otherwise enclosed with the Products) or anymarketing or other materials provided to Buyer in connectionwith the Products.

 

13. Mandatory Insurance Coverage by Buyer. Each timethat any Buyer who is a merchant (as defined in Article 2 ofthe UCC) submits an Order (and through the date on which itindefeasibly pays to the Company the full amount of suchOrder), Buyer will be insured for such transaction byinsurance companies that are rated B+ or better by AM Best,Standard & Poor’s, or similar rating agency commerciallyreasonable coverage limits for Commercial General Liabilityper occurrence and in the aggregate (including premises andoperations, personal and advertising injury and products andcompleted operations liability coverage); and (b) such otherform and dollar coverage of insurance as the Companyreasonably requests of Buyer in connection with any Orderor purchase of any Product.

 

14. Miscellaneous. Buyer shall not assign (whether byoperation of law or change of control) their rights or delegateany of their obligations under this Contract, and anyattempted assignment or delegation by Buyer will be invalidand ineffective against the Company. This Contract isbinding on and inures to the benefit of each party and each oftheir heirs and valid assignees and/or successors-in-interest.This Contract may be executed and delivered by facsimileand/or Internet e-mail and in counterparts, each of whichshall be deemed an original and collectively the sameagreement. A waiver, discharge, amendment or modificationof this Contract will be valid and effective only if evidencedby a writing that is signed by or on behalf of the partyagainst whom enforcement is sought. The Company has theright to amend or modify this Contract as a condition toaccepting or fulfilling any Order submitted after the effectivedate of this Contract. No delay or course of dealing by aparty to this Contract in exercising any right, power orremedy under this Contract will operate as a waiver of anyright, power or remedy of that party, except to the extentexpressly manifested in writing by that party. The failure atany time of any party to require performance by anotherparty of any provision in this Contract will in no way affectthat party’s right thereafter to enforce that provision or thisContract. In addition, the waiver by a party of a breach ofany provision of this Contract will not constitute a waiver ofany succeeding breach of that provision or a waiver of theprovision itself. Whenever possible, each provision of thisContract should be construed and interpreted so that it isvalid and enforceable under applicable law. This Contract(and any other document explicitly incorporated byreference, including each invoice by the Company to Buyerwith respect to any Order) records the entire understandingbetween them with respect to (and supersedes any previousor contemporaneous agreement, representation orunderstanding, oral or written, by any party in connectionwith) the parties’ obligations with respect to the transactionscontemplated by this Contract. In any arbitration or legalproceeding between and/or among the parties arising inconnection with this Contract, the losing party shallreimburse the prevailing party, on demand, for all reasonablecosts incurred by the prevailing party in enforcing,defending, or prosecuting this Contract. The validity,enforcement, construction and interpretation of this Contractare governed by the laws of the State of New York and thefederal laws of the United States of America, excluding thelaws of those jurisdictions pertaining to resolution ofconflicts with laws of other jurisdictions. Each signatory tothis Contract (a) consents to the personal jurisdiction of thestate and federal courts having jurisdiction in the State ofNew York, (b) stipulates that a proper and convenient venuefor any-legal proceeding arising out of this Contract is theapplicable court of the State of New York located in SuffolkCounty, for a state trial court proceeding, and the UnitedStates District Court for the Eastern District of New York—Suffolk Division, for a federal trial court proceeding, and (c)waives any defense, whether asserted by motion or pleading,that those venues are improper or inconvenient. EACHSIGNATORY TO THIS AGREEMENT KNOWINGLY,VOLUNTARILY, AND INTENTIONALLY WAIVES THERIGHT TO A JURY TRIAL IN ANY LAWSUIT INCONNECTION WITH THIS AGREEMENT, WHETHERAT LAW OR IN EQUITY, WHETHER BASED ON ACLAIM, CROSS-CLAIM, OR COUNTERCLAIMARISING BEFORE OR AFTER THE EFFECTIVE DATEOF THIS AGREEMENT, REGARDLESS OF THENATURE OF THE CLAIM OR COUNTERCLAIM, ANDINCLUDING CLAIMS UNDER TORT, CONTRACT,CORPORATE, EMPLOYMENT, AND INTELLECTUALPROPERTY LAWS. The language used in this Contract willbe deemed to be the language chosen by the parties hereto toexpress their mutual intent, and no rule of strict constructionwill be applied against any party hereto. In no event shalleither party and/or their respective representatives (including,without limitation each party’s (and such party’s respectiverepresentatives’) successors-in-interest) be liable to the otherfor any consequential, special, punitive, and/or incidentaldamages for any person’s breach of this Contract. Theaffiliates of the Company (as they exist from time to timewhile this contract is in effect) are third-party beneficiaries ofthe Company’s rights in connection with this Agreement.This Contract will become effective when all parties sign itand upon the Company’s initial delivery of any Productspursuant to any Order (and shall remain in effect untilsuperseded by a subsequent written agreement betweenBuyer and the Company). In the event of any conflict,contradiction, or difference between (i) any clause in anyOrder or any similar communication of Buyer to theCompany and (ii) any clause in this Contract or theapplicable invoice from the Company to Buyer—inconnection with any Order, the clause in this Contract orsuch invoice will supersede and prevail. In the event of anyconflict, contradiction, or difference between (i) any clausein this Contract and (ii) any clause in an invoice from theCompany to Buyer—in connection with any Order, theclause in such invoice will supersede and prevail.

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