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Purchase Order Terms and Conditions: |
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Birdnecklace Renewable Energy, LLC Purchase Order Terms & Conditions
Introduction. This Terms and Conditions Statement and/or Purchase Order, and/or Invoice Agreement (collectively and also hereafter “Agreement”) applies to Birdnecklace Renewable Energy, LLC, the Seller, (hereinafter BRE) and assets and/or services described in Schedule A of this agreement or as provided by the associated invoice, directly from BRE, and/or brokered by BRE, and/or otherwise equipment purchase transaction performed by the Purchaser (otherwise also known as “Buyer”). Any Original Equipment Manufacturer (hereafter OEM) may provide equipment supply, services, and warranty as BRE shall provide to the Buyer for the benefit of the Buyer. If you have acquired equipment through BRE acting as a distributor, broker, or reseller, contact the OEM regarding issues specific to OEM as detailed herein. All statements herein are subject to change, contact BRE for the latest statement. General Agreement. This agreement serves for the purposes of BRE the following: (1) Service(s) Sale(s); (2) Equipment Sales; (3) Labor and Operations & Maintenance; (4) Customized Planning Services; (5) Project Planning Services; (6) Project Survey Services; (7) any other applicable goods and services however specified by this agreement and/or outlined by purchase order or issued quote. Applicability. This general comprehensive agreement represents a complete terms and conditions for all applicable BRE goods and services per terms of the same; the clauses which directly or indirectly apply toward a particular good or services provided as ordered by the Buyer shall prevail as those terms and conditions with applicability. Privacy Policy. Client privacy is very important to us. Accordingly, we have developed this Policy in order for you to understand how we collect, use, communicate and disclose and make use of personal information. The following outlines our privacy policy: Before or at the time of collecting personal information included in this form, we will identify the purposes for which information is being collected, which are stated below: a) To determine the nature of inquiry and request; b) To determine our ability and availability to service such request specific to our offerings. c) To better serve our customers and potential customers regarding their needs. We will collect and use of personal information solely with the objective of fulfilling those purposes specified by us and for other compatible purposes, unless we obtain the consent of the individual concerned or as required by law. We will only retain personal information as long as necessary for the fulfillment of those purposes, upon fulfillment, any information collected will be permanently destroyed as soon as reasonably and practically possible, and such information will not be stored by us for any reason. We will collect personal information by lawful and fair means and, where appropriate, with the knowledge or consent of the individual concerned. Data collected is strictly relevant to the purposes for which it is to be used which is to determine and fulfill your inquiry request, and such information is only necessary to the extent necessary for those purposes, please ensure information submitted should be accurate, complete, and up-to-date. We will not publish client information to the public for any purpose including marketing or client reference. We maintain non-disclosure of any and all information collected whatsoever; will protect personal information by reasonable security safeguards against loss or theft, as well as unauthorized access, disclosure, copying, use or modification. We will never disclose this information to third-parties for any reason whatsoever outside the purposes fore stated, nor will your email address be made available to third-parties for any purposes whatsoever including marketing or spam. We perform non-disclosure as prescribed by state and federal law. We will make readily available to customers information about our policies and practices relating to the management of personal information. We are committed to conducting our business in accordance with these principles in order to ensure that the confidentiality of personal information is protected and maintained.
Offerings. The following is a list of specified products and services offered by BRE which may be included with any invoice as requested by Buyer; the list also includes a general description of Customized Services, however products may be customized as well, which will be specifically defined within such issued invoice and further defined in writing:
Equipment Supply: wind turbines, (utility scale, micro, residential), geothermal generators and equipment, bio-fuel plant equipment, solar energy equipment and supply, brokered, sourced, new, used, refurbished; apply for financing today (wac). PackCustProjPlanServ: Each purchase of scale (rated capacity of 10kW or higher or any associated equipment and/or services deemed for definitive utility scale projects) equipment and/or services pursuant an issue Quote, must first be accompanied by: Start a Customized Plan Service Package and complete and submit the accompanying “Customized Project Plan Request” form via the internet at http://www.Birdnecklace.com and select “Customized Project Planning Services” on the home page, or follow the instructions provided within the issued Quote and/or the attached Quote Supplemental documentation; Submission of this “request” and full payment of the service fee is a pre-requisite for formal issuance of an official package Purchase Order; entry of the issue Quote number within the submitted “Customized Project Plan Request” form is required. Planning Services (Fee): For Project Planning of Installation and Interconnection of your proposed project; in addition to the Purchase Order. The scope of work (see; Formal Project Plan clause) includes all or part of the services Consulting Services available to all clients. This advance initial fee for consult and planning is required in addition to the costs and fees for installation performance (does not include government permitting fees above and beyond typical fees, or other associated nor any non-associated fees and costs). Customized Project Planning Services: Residential & Commercial Project Survey Service: Provides: Key basic information to determine what renewable energy resources available, and can be used to estimate the type of equipment, estimated project cost, and power-outputs, and income for any potential Home, Business, or Property. Renewable Energy Certificates: Available for sale, Renewable Energy Certificates offset the carbon-emissions produced by the fossil-fuel generated electricity used by any household or business; available where inventory allows. Project Consulting: For fee-based consult on general project planning and development. BRE provides consultation throughout the renewable energy project development process - addressing both the needs and outcome of the project development; in managing the project’s capital investment, and implementation. Project Finance: BRE offers project funding and investment options where available and applicable. BRE may provide coordination of investment in proposed project developments - or have access to resources which may invest and develop the proposed project. This opportunity is open to projects plans, or project ideas, or even just general inquiries which have viability or projects which are well developed already. Both developed and undeveloped project plans and ideas are acceptable pending the parameters and attributes of the proposed. Project Installation: For any purchase, BRE offers installation services for the equipment purchased at your project installation location or at your property. An advance initial fee for consult and planning is required in addition to the costs and fees for installation performance. for Land Owners: for land owners who want to find out if their property may be a possible location for a wind energy project development (or other renewable energy project development), then BRE will assist in working with the Buyer to determine possible options available for a given situation. For qualified locations, BRE will seeking to plan, develop, operate, and manage renewable energy projects at available locations, under specific terms and conditions customized for that project and in addition to the terms and conditions mentioned here. Customized offering. Where applicable, this clause shall enumerate and provide definition of the customized services and/or goods provided per Buyer request and as referenced within the issued invoice or purchase order, all listed (if any) here: None; (otherwise, please see BRE issued Customized Planning Services Invoice for further information or special issued terms and conditions thereof).
Standard terms and conditions of sale. Goods sold by BRE are expressly subject to and conditioned upon the terms and conditions set forth herein. Any different or additional terms set forth by Buyer, whether in Buyer’s purchase order or another communication, are expressly objected to and will not be binding on BRE unless agreed to in writing by an authorized officer of BRE, as an appended attachment to an executed Purchase Order or the Terms and Conditions Statement herein.
Sales Final. All sales are final, and sold in “as-is” condition, no refunds for equipment purchased, except as otherwise described by this Agreement, except as otherwise established by this Agreement.
Attached Agreements. In addition to this agreement, a subsequent official invoice may be issued along with periodic statements to the Buyer, or additional documents as required by this agreement, are considered annexed attached parts of and subject to this agreement.
Standard Equipment Sales and Payment on Terms. Payment terms are 50% of the total Purchase Order payment due at signing of purchase order, 40% of total payment due at the time of shipment to the Purchaser’s designated site location, and 10% of total payment due upon the completion of delivery of equipment to Purchaser’s designated site location. BRE will issue appropriate receipts and statements, accounting for transactions and payments. These terms are superseded by Special Sales and Payment on Terms when set-out and defined specifically by this agreement.
Services Sales and Payment. All orders, in which services are ordered per section 5(b) through 5(h) exclusively, are payment terms of pre-payment of full invoice amount prior to delivery of service. Special Sales and Payment on Terms. Specialized payment terms may be established, such terms will be defined set-out and defined specifically by a separate agreement or by invoice terms.
Additional Compensation. Additional compensation as listed within invoice or purchase order, and per specific terms shall be listed and enumerated (if any) here: None; (otherwise, please see BRE issued Customized Planning Services Invoice for further information or special issued terms and conditions thereof).
Third-Party Options. BRE is independent of and not responsible for the terms conditions of any third-party finance company.
Taxes. BRE shall not be liable for property taxes a result of property “improvement(s)”, or any other taxes levied of the Buyer whatsoever as a result of this purchase, or any project installation or improvements thereof or related to this transaction and/or the installation of this equipment. Buyer shall have sole responsibility and liability of Sales or Use taxes, and any other resulting taxes described herein.
Additional Fees and Additional Permitting. Any fees or permitting fees which are required beyond what is billed is the responsibility of the Buyer. BRE will notify the Buyer of any additionally government or regulatory fees which are required beyond what is billed via this Purchase Order to complete installation and startup of the installed equipment or in writing by letter.
Additional Payment Terms and shipping. (at any time, without penalty, full payment for all balances owed may be paid prior to any defaults or other deadlines prescribed by any effective agreement entered by Buyer and Seller); If specifically otherwise specified and mutually agreed, terms for payment in-full, is due at signing of purchase order. Additionally, if a delinquent account is sent to collections, Buyer is responsible for all collection and attorney fees. All payments are to be made in US dollars. If a Buyer’s account becomes past due, BRE may ship products on a COD or COD-plus basis, or may refuse shipments until the account is paid in full. Terms of Payment. Invoices shall be paid under one of the following terms as specified by issued invoice: Pre-payment. On the date of issue of a formal invoice or purchase order, and before the performance or delivery of goods and/or services, full payment of the listed amount owed shall be paid in full. Standard Payment. On the date of issue of a formal invoice or purchase order, and before the performance or delivery of goods and/or services, the prescribed standard payment method shall be followed as defined by this agreement (see; clause “Standard Equipment Sales and Payment on Terms”). Terms of Payment (Monthly Payment). Starting on the date of this invoice and continuing until the principal balance of this Invoice Agreement and any accrued costs have been repaid in full, on the 1st day of each month the Buyer shall pay the appropriate amounts as defined by the Invoice Agreement attached. All payments shall be applied to the balance principal. Property Lien in Payment. Buyer agrees that at the Closing, Buyer shall assign, transfer and convey to BRE free and clear of all other liens, claims, encumbrances and other interests (except for any easements or other rights with except to the real property described in Schedule B that do not constitute liens, encumbrances or otherwise cloud the title with respect to such property), and Buyer agrees that it shall purchase and acquire from BRE, all of title and interest in the assets described in Schedule A by making all required payments in-full and within the terms of this agreement, the lien shall be in effect for the term of the purchase order and invoice payments until paid-in-full, or the Buyer defaults according to this agreement. Terms of Payment. Starting on the date as defined within the Invoice Agreement and continuing thereafter from month to month until the date of the “Final Payment Due” as defined by the Invoice Agreement, the Buyer shall make monthly payments of and a final payment according to the Invoice Agreement attached. Payable-on-Demand. The entire unpaid invoice principal, if any, shall become immediately due and payable on demand by the holder of this Agreement including the Invoice Agreement, and Purchase Order Terms and Conditions, by and between the mentioned Buyer and Seller herein. First Late Fees. In the event that a payment due defined by the Invoice Agreement is not made within ten (10) days of the time set forth herein, the Buyer shall pay an additional late fee in the amount of 2% of the current payment due. Subsequent Late Fees. In the event that a payment due under this Invoice Agreement is not made within ten (10) days of the time set forth for payment of the “First Late Fees” herein, the Buyer shall pay an additional late fee in the amount of five-percent (5%) of said payment. Place of Payment. All payments due under this Agreement shall be made to such mailing address as defined by issued invoice, or at such other place as the holder of this Agreement may designate in writing. Prepayment. This Agreement may be prepaid in whole or in part at any time without premium or penalty. All prepayments shall be applied to principal Balance Due per Terms. Default. 30 days of non-payment of the invoice will deem the Agreement in Default by the Buyer (meaning on the close of business 11:59pm CST, of the 30th day of nonpayment in accordance with and as defined by this agreement and associated invoice or purchase order. In the event of default, the Buyer[s] agree to pay all costs and expenses incurred by the holder of this Agreement, including all reasonable attorney fees (including both hourly and contingent attorney fees as permitted by law) for the collection of this Invoice Agreement upon default, and including reasonable collection charges should collection be referred to a collection agency; also including any cost and expenses incurred by the holder of this Agreement in effort to execute possession of property in lien described in Schedule B of this agreement. Acceleration of Invoice Payment. In the event that the Buyer[s] fail to make any payment due under the terms of this Agreement, or breach any condition relating to security for this Agreement, seeks relief under the Bankruptcy Code, or suffers an involuntary petition in bankruptcy or receivership not vacated within thirty (30) days, the entire balance of this Agreement and any costs or penalties accrued thereon shall be immediately due and payable to the holder of this Agreement. the Buyer shall have failed to perform any of its covenants or obligations under the terms and conditions set forth in this Agreement. the Buyer agrees to return all Equipment to the holder of this agreement in event of default or an event of acceleration, the equipment’s value will be determined by the holder of this agreement utilizing generally accepted accounting principles, and additionally to include any extraordinary ware and tear upon the equipment, as well as damage beyond typical ware and tear, the value depreciation and devaluation will be included in the calculation of the final Invoice balance due. Joint and Several Liability. All Buyers identified in this Note shall be jointly and severally liable for any debts secured by this Agreement. Modification. No modification or waiver of any of the terms of this Agreement shall be allowed unless by written agreement signed by both parties. No waiver of any breach or default hereunder shall be deemed a waiver of any subsequent breach or default of the same or similar nature. Transfer. The Buyers hereby waive any notice of the transfer of this Agreement by the Seller or by any subsequent holder of this Agreement, agree to remain bound by the terms of this Agreement subsequent to any transfer, and agree that the terms of this Agreement may be fully enforced by any subsequent holder of this Agreement. Project Planning Fees. A one-time initial Planning fee ("Planning Fee") equal to $2,100 for projects up to 100kw, and additional rated capacity projects $21.00 per kilowatt ("kW") of proposed wind turbine nameplate rating of wind turbines or other power generation facilities to be built in any particular phase of construction, based on such facilities’ “nameplate rating” (as determined by the manufacturer and/or BRE). Planning Fees account for administrative expenses, project evaluation, to process the purchase order with special payment terms as described in the Purchase Order executed for the Owner’s purchase of proposed installed equipment. Each Planning Fee shall be paid in-full prior to issue of the Purchase Order, which shall be issued within 24-hours of payment of the Planning Fee.
Refund: If a proposed project is not feasible, the Planning Fee will be returned less 25% which accounts for services in project analysis and evaluation. 50% of Planning Fee shall be returned to Buyer if the Buyer declines to proceed with purchase of product and services, as long as project is feasible and the equipment is available. If the equipment or services are unavailable after payment of the Planning Fee, the Buyer shall be entitled to a full refund of the entire Planning Fee. (a). The Scope of Work for the Planning per Planning Fee shall include all or part (as applicable or deemed necessary in the delivery of a project) of the following described functions as necessary to complete the project in accordance with local, state, and/or federal regulation and law: Pre-Construction Renewable Energy Project Planning This includes the planning of development of project parameters in order to compile the project plan including the size, scope, and purpose of the project and project objectives; establishing a plan for the appropriate resources including location, resource and logistics issues, interconnection and grid connection, as well as construction and installation resource management planning.
Overall Project Development This includes planning for associated issues regarding the specific project planning which are unique to the particular project, including local planning, permitting and any other logistical, regulatory or other issues which can have impact upon the overall project development and planning.
Permitting Issues This includes planning for local, state, and federal permitting issues which need to be planned for in the development and establishment of the project. Permitting Fees are additional.
Environmental & Avian Issues This includes planning for the impacts of the environmental issues or avian issues which may affect the project, and developing strategies to address these issues.
Customized Project Plan. A project plan which is specifically tailored for a specific need which does not include a standard “Formal Plan” is a Customized Project Plan; determination of this designation is at the strict discretion of BRE, and shall be designated within the issued invoice or purchase order as requested by Buyer.
Formal Project Plan. A formal project plan which includes the planning and development of the specific proposed project will be completed in both electronic and hard copy form, for the convenience and use of the client. The following in part or whole, are including in the formal plan as necessary to complete the project in accordance with local, state, and/or federal regulation and law:
Assess & Estimate Regional Utility Retail Rates (as proxy for avoided cost rate) Assess & Estimate State REC Value, if any Initial Assessment & Estimate of Wind Speed, Consistency, etc. Identify Local Transmission Capability Identify Local Interconnection(s) Estimate Transmission Queue Position or Process, if applicable Assess Site Availability and Land Lease or Purchase Options Calculate Initial Financial Feasibility (pro-forma) Procure Site Availability and Land Lease Position Environmental Impact Study (EIS) (wetlands, protected animal/plant, etc.) Avian Study FAA Study Topographical Study Geotechnical Study (soil boring) to Assess Foundation Design Microwave Study Historical (to include Tribal) Study State Department of Natural Resources Acceptance Federal Regulation, if applicable - NEPA State and Local Regulation Conditional Use Permit Host Community Acceptance Assessment (i.e. local gov't resolution) Federal, State and Local Permits (Build) Initial Power Purchase Agreement (PPA) Discussion with Regional Utility(s) Secure Interconnect Agreement Negotiate Agreement to Terms & Conditions of PPA Discover Client Accessible Project Finance (where applicable) Customized Services (where applicable as defined by invoice and/or purchase order)
Buyer must approve by signature the formal Project Plan in order for BRE to commence with Discover Client Accessible Project Finance (where applicable) Project Plan implementation and project installation. Without mutual agreement of a reasonable Project Plan which adheres to all regulation, law, and operational feasibility of the project independent, BRE shall hold no liability for installation or maintenance services upon a good-faith effort by BRE to resolve any Project Planning issues.
Acceptable forms of payment. All remittances must be in a single payment in the full amount as specified by the Sales and payment terms of the invoice (adjusted for any debit memos) and must be in accordance with the following requirements: Buyer company check (drawn on company account with company name). Wire Transfer drawn upon a U.S. domestic financial institution Bank or certified check Personal or company checks will be subject to a minimum 14 day clearance period prior to the shipment of goods. Third-party checks, bank checks, and foreign drafts will be accepted only if approved in advance in writing by the CFO or other authorized officer of BRE and must have accompanying documentation that references invoices being paid. Security interest. Buyer hereby grants to BRE, and BRE reserves, a purchase money security interest in each product sold by BRE to Buyer in the amount of its purchase price. Any such security interest shall be satisfied by payment in full of the invoiced amount. Buyer agrees to execute any and all such documents, including financing statements, as may be necessary for BRE to perfect such security interest. Notwithstanding the foregoing, a copy of the Agreement may be filed on behalf of BRE with the appropriate authorities at any time after signature by Buyer as and for a financing statement. Prices. Products and services will be invoiced at prices in effect as of date of shipment (invoice date). Prices are not necessarily valid for other current and future sales. Any and all invoice errors must be disputed within 15 days of invoice date and are subject to correction by BRE. Prices exclude any present or future federal, state, provincial, local, or other governmental taxes, duties, and tariffs applicable to the sale, transportation, or use of products purchased, all of which taxes, duties, and tariffs shall be paid by Buyer. International sales are subject to applicable transportation and import duties, licenses, and fees, or as agreed to by the purchase order. All prices are FOB shipping point. All prices are FOB shipping point. All prices denoted currency is United States Dollars. Currency Payments. All payments by Buyer shall be made via United States Dollars (us). Changes in buyer's financial condition. BRE reserves the right to cancel an order or require full or partial payment if (1) solvency of Buyer is in question, (2) Buyer files for bankruptcy, (3) there is an appointment of trustee or receiver for Buyer, or (4) execution of Buyer by creditors. BRE also reserves the right to cancel Buyer’s credit at any time. Delivery, title, and risk of loss. All shipments will be FOB shipping point, and title and risk of loss will pass to Buyer when accepted for shipment by the freight company. On-time shipment is dependent upon Buyer promptly supplying all necessary documentation and payments due. BRE will ship via its preferred carrier. BRE reserves the right to make partial shipments unless specifically stated otherwise on Buyer’s purchase order. Freight charges which are prepaid by BRE will be invoiced to Buyer. Buyer must promptly file claims for damaged items with the freight carrier. BRE will determine the point of shipment. Products may ship from multiple locations. Excusable delays. BRE shall use commercially reasonable efforts to deliver all products ordered by Buyer as soon as reasonably practicable. In the event of interruption of any such delivery due to causes beyond the reasonable control of BRE, including but not limited to fire, labor disturbances, riots, accidents, or inability to obtain necessary materials or components, BRE shall have the right, in its sole discretion and upon oral or written notice to Buyer, to delay or terminate such delivery. Upon receipt of such notice, Buyer shall have the option to change or terminate such orders. Shortages. BRE must notify Buyer of shortages within seven (7) business days of scheduled delivery. All claims for shortages shall be waived and released after seven (7) business days of receipt. At BRE’s option, shipment will be fulfilled or a credit will be mailed to Buyer within 30 days of claim receipt. Time to Cancel. Buyer has an option to cancel this purchase order within 2-days of placing the order or prior to delivery of product and/or service ordered, whichever happens first, with no further obligation to BRE. If the product is delivered or the 2-day deadline to cancel the order has expired, the Returns clause of this agreement will govern. Returns. Contact BRE and request authorization to return the product. Upon authorization, BRE may issue a return authorization acknowledgement form. Return the product in the original or equivalent packaging, freight prepaid, to the designated BRE location, with the properly acknowledged BRE issued return authorization acknowledgement attached on the outside of the package. Do not return product for repair, replacement, credit, or restock without authorization of BRE. If you return product without authorization, it will be returned to the sender upon receipt at Buyer’s expense. Special or nonstandard items will be returned at BRE’s discretion only. BRE will refund or credit new, standard production items that are unused and in original shipping cartons for a period of 30 days from the original date of shipment. All returned merchandise (and applicable to canceled services) is subject to a 20% restocking fee. All returns are subject to BRE inspection and approval. This clause shall not apply to BRE if equipment or service is brokered or provided via third-party, in such case the third-party provider “Return Policy” shall govern. Installation, Repair and Maintenance. Installation of the equipment shall commence when payment for services as such fee amounts are described and specified within the invoice of this agreement are received per this Purchase Order terms. Installation shall be complete to project start-up according to the Project Plan as developed for the Buyer by virtue of the Planning Fee (see; “PLANNING FEE (a)” of this agreement). The following is a description of the typical scope of work included in the Repair and Maintenance of the equipment for a term as described in the Invoice of this Agreement: Maintenance of the Equipment where Buyer’s property is located Improvements Constructed Thereon. BRE shall provide maintenance services for the equipment for a duration of one year from date of project startup. Buyer will be provided with a certification and notification of the date of startup. Installation of Improvements. Other than BRE Improvements permitted in this Agreement, BRE shall not cause any improvements to be installed on the Property where project is located without first obtaining the written consent of Buyer (and property owner where appropriate). BRE shall submit any application for Owner’s consent to additional improvements on the Property in accordance with all applicable state statutes, rules and regulations. Management Scope of Work. The general tasks of BRE to install, manage, and operate the equipment described herein, with methods and application at the discretion of BRE, for the good-faith effort to ensure successful operation of the facilities for a duration of time as defined by the purchase order from date of project startup. Complete Loss. Buyer is liable for acquiring and maintaining insurance for the equipment; Upon major damage of equipment from events including but not exclusive to: tornados, hurricanes, earthquakes, lightening strikes, major hail damage, major weather storms, land or earth sink-holes, landslides, equipment theft (complete or partial), seizures no fault of BRE, hail storms, wind storms, lightning strikes, and any other event which significantly destroys or disables the equipment far beyond reparability, or so significant as to require complete rebuild of the equipment, or otherwise beyond repair, any as determined by BRE inspection, shall be considered by definition to in-fact render the equipment a “Complete Loss”, and shall be cause to terminate maintenance and operation obligations for BRE whatsoever, without affecting the Purchase Order agreement, or any other non-maintenance type obligations of this agreement. Warranty. BRE will provide the supplied warranty or warranties stated as supplied by the equipment manufacturer (OEM), that its products are free from defects in workmanship and materials, and/or as provided by such warranty statement, and will conform to the published specifications provided for and by the original equipment manufacturer (OEM), subject to the terms of the warranty provided. With regard to any failures of equipment provided by BRE, the foregoing shall apply only to failures to meet said warranty that appear within the applicable warranty period set forth in the warranty established by and through the OEM. The warranty extends only to Buyer and does not extend to any other party. BRE is not responsible for conditions or applications over which BRE has no control. Defects or problems as a result of such conditions or applications are not the responsibility of BRE. Such conditions include normal wear and tear; catastrophe; fault or negligence of the user or a party other than BRE; improper installation, application, storage, maintenance, or use of products; other causes external to products; or failure to conform to any applicable recommendations of BRE, the OEM, or Government Regulation. The warranty does not cover (or as specified by the OEM supplied warranty), and BRE does not warrant, batteries of any type used in connection with other products furnished. To the extent that any product includes software or firmware, whether included in a product furnished hereunder or provided separately, BRE shall supply any OEM warranty which OEM organization may upon its own discretion warrant that such software/firmware will, at the time of delivery by BRE and for a period thereafter, conform in all material respects as provided within documentation relating to such software/firmware. BRE makes no warranty, either expressed or implied that any delivered products are, or will be acceptable by any utility company for interconnection purposes. If any product fails to meet the warranty, the Buyer must contact BRE and/or the OEM of the equipment or product, as the equipment or product OEM shall, at its option, correct any such failure by repairing any defective or damaged parts of damaged product, or make available, FOB shipping point, any necessary repaired or replacement parts, or otherwise as per its specific supplied warranty which shall govern. BRE will not be responsible for labor costs of removal or reinstallation of products. The repaired or replaced product is then warranted under the terms according to applicable limited warranty for the balance of the term of the warranty or for 90 days. For any warranty claim, Buyer should contact BRE and request authorization to return the product (see Returns). All equipment which is sold by BRE in “AS-IS” and/or “WHERE-IS” condition shall be subject to a warranty issued as to warranty the initial functional operation of such equipment only (this usually includes but not exclusive to, used, non-refurbished, equipment). The preceding subsections of this limited warranty set forth the exclusive remedies for claims based on any defect, failure, malfunction, or any other performance or nonperformance of any product, whether the claim is in contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, and however instituted. Upon expiration of the applicable limited warranty period, any liability of BRE in connection with such exclusive remedies shall terminate, and Buyer shall have 30 days after the warranty period to give written notice of any defects, failures, malfunctions, or other performance or non-performance issue that appeared during the warranty period. Except as set forth in the supplied warranty issued by the equipment OEM, which may or may not have warranty terms which are in accordance with the herein stated sections, in which case such warranty shall govern as supplied and executed by the OEM, the Buyer should contact the BRE and/or OEM for warranty terms and claims, these sections and the foregoing warranty is exclusive and in lieu of all other warranties (except as stated), whether written, oral, implied, or statutory. NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE SHALL APPLY. Advanced replacement. Advance replacement products are new or like-new refurbished products unless otherwise specified. BRE will send advance replacement product to replace defective equipment that has failed upon initial install and advance replacements will be invoiced at shipment and credited upon receipt of the defective product in accordance with the OEM warranty and according to the performance of such warranty provided by such OEM organization. Invoices will remain outstanding if the returned product does not qualify under the replacement terms. Non-warranty repair. Buyer will be charged on all repairs and shipping costs for non-warranty equipment. Payment is required at time of request and is accepted by purchase order or credit card. Charges may vary based on actual equipment and condition. Repair charges may be based on flat rate cost or parts and labor. The OEM warranty shall govern application of “non-warranty repair” of any equipment provided by BRE, except that equipment which is original equipment of BRE in which case shall include a BRE issued warranty. Insurance. Buyer is solely responsible for holding any necessary, required, or desired, insurances for all equipment and/or services included in any purchase, or for any improvements as a result of such purchases or any other eventuality which may occur directly or indirectly as a result of the Buyer’s purchase; the Buyer shall indemnify the Seller of any obligation or liability with regard to the stated herein. Software license. Any proprietary software provided by BRE and license of use thereof shall be governed by this section, any other software provided by OEM other than BRE shall have, inclusive of this agreement, that OEM’s organization official software license of use agreement which shall govern over that software. Software License as used in this document, the term “Software” means: a) machine-readable object code; or b) a computer program or compilation of data that is fixed in any tangible medium of expression or any storage medium from which the program may be perceived, reproduced, or otherwise communicated, only with the aid of a machine or device. Furthermore, the term “Software” shall include, without limitation, any proprietary software provided for the ordinary operation of the products, any optional software to enhance the operation of the Products, and any upgrades or revisions of this material BRE provides in fulfillment of a specific written commitment or otherwise. Nothing herein shall be deemed to create an obligation on the part of BRE to provide any support, upgrades, or revisions to any software other than pursuant to a separate written obligation to do so. Buyer is granted a limited license for any software and related user documentation delivered by BRE, as deemed granted by the OEM, whether as part of any product or provided separately. Buyer is not granted a license for any other software or documentation. This license allows Buyer to: a. use the Software and user documentation only on the products on which it is installed at the time of delivery or, if the Software is supplied separately, in connection with products supplied by any OEM. Buyer must obtain a supplementary license from that OEM before using the Software in connection with any other equipment or for any other purpose; and b. make one copy of the Software in machine-readable form solely for backup purposes, provided that Buyer reproduces on any such copy the copyright notice and any other proprietary lends that were on the original copy. Buyer shall have no other rights under this license. Buyer may not distribute copies of the Software or documentation to others or electronically transfer the Software from one computer to another over a network. The Software contains trade secrets of BRE. In order to protect such trade secrets, Buyer may not modify, decompile, reverse-engineer, disassemble, or otherwise reduce the Software to a human-perceivable form. Buyer may not modify, adapt, translate, rent, lease, loan, resell for profit or other purpose, distribute, network, or create derivative works based upon the Software or any part thereof. All Software and user documentation is protected by the copyright laws, works of authorship, and patents of the United States of America and by applicable international treaties. No license under such rights is transferred to Buyer, except as specifically provided above. All Software provided by the OEM remains OEM’s property. If Buyer receives any Software that renders other Software that Buyer then has redundant, Buyer must return the redundant Software to BRE. Patents. BRE warrants that products furnished hereunder shall be delivered free of any rightful claim of any third-party for infringement of any United States patent. If notified promptly in writing and given authority, information, and assistance, and contingent upon Buyer not taking any position adverse to BRE in connection with such claim, BRE shall defend, or may settle at its expense, any suit or proceeding against Buyer so far as based on a claimed infringement which would result in a breach of the warranty stated in this section, and BRE shall pay all damages and costs awarded therein against Buyer due to such breach. In case any product or part thereof is in such suit held to constitute such an infringement and the use for the purpose intended of said product or par is enjoined, BRE shall, at its expense and option, either procure for Buyer the right to continue using said product or part, or replace same with a non-infringing product or part, or modify same so it becomes non-infringing, or remove the product and refund the purchase price (less reasonable depreciation for any period of use) and any transportation costs separately paid by Buyer. The foregoing states the entire liability of BRE for patent infringement by the products or any part thereof. This does not apply to any product or part specified by Buyer or manufactured to Buyer’s design, or to the use of any product furnished hereunder in conjunction with any other product in a combination not furnished by BRE as a part of this transaction. As to any such product or part, or use in such combination, BRE assumes no liability whatsoever for patent infringement and Buyer will hold BRE harmless against any infringement claims arising therefrom, including by not exclusive to Buyer unauthorized mechanical or otherwise modification to product or equipment. Custom products. Intellectual property developed by BRE resulting from the development of custom products (including but not limited to hardware, software, and technical documentation) for a buyer are exclusively the property of BRE and may not be reproduced, redistributed, or resold by Buyer without prior written permission, or the proprietary rights therein are specifically transferred to Buyer from BRE. Limitation of liability. BRE’s liability to Buyer on any claim of any kind, whether as a result of breach of contract, warranty, indemnity, tort (including negligence), strict liability, or otherwise, for any loss or damage arising out of, connected with, or resulting from the transaction, or from BRE's performance or breach thereof, or from the design, manufacture, sale, resale, installation, repair, operation, or use of any products furnished herein, shall in no event (except as specifically provided for under the Patents section) exceed the price paid by Buyer for the products which give rise to the claim. Any such liability shall terminate upon the expiration of the applicable warranty period, provided, however, that Buyer’s rights to prove title in the products purchased from BRE shall not terminate. In no event, whether as a result of breach of contract, warranty, indemnity, tort (including negligence and strict liability), or otherwise, shall BRE or its suppliers be liable for any special, consequential, incidental, or penal damages, including but not limited to: loss of profit or revenues; loss of use of the products or any associated equipment; damage to associated equipment; cost of capital, substitute products, facilities, or services; downtime costs; or claims of Buyer’s customer for such damage. Unless otherwise agreed to in writing and signed by the CEO of BRE, products sold are not intended for use in connection with any nuclear facility or activity. If resold by Buyer for such use, BRE disclaims all liability for any nuclear damage, injury, or contamination, and Buyer shall indemnify BRE against any such liability, whether as a result of breach of contract, warranty, tort (including negligence and strict liability), or otherwise. Disclaimer. BRE does not make any claims or warranties of any kind regarding any product's potential, ability, or effectiveness to detect, minimize, or in any way prevent death, personal injury, property damage, or loss of any kind whatsoever. BRE is not responsible for any death, personal injury, damage, loss, or theft related to the product or its use or for any harm, whether physical or mental, related thereto. BRE does not represent that the product may not be compromised and/or circumvented, or that the product will prevent death, personal injury, bodily injury, and/or damage to property of purchaser or others resulting from burglary, robbery, fire, or otherwise, or that the product will in all cases provide adequate warning or protection. Buyer understands that a properly installed and maintained product may only reduce the risk of events such as burglary, robbery, fire, or similar events without warning, but it is not insurance or a guarantee that such events will not occur or that there will be no death, personal injury, and/or property damage as a result. BRE shall not be liable for any death, personal injury, property damage, or loss of any kind whatsoever to purchaser or others, whether directly, indirectly, incidentally, consequentially, or otherwise, caused by the operation, non-operation, functioning, malfunctioning, or misuse of the product. Absolute Right to Withdraw. BRE maintains a right to withdraw from any agreement prior to the installation of any facilities; Buyer shall be entitled to full refunds of any payments made upon a decision by BRE to withdraw from any agreement. BRE shall grant Buyer a 10-day notice of withdraw including reasoning. BRE shall make every reasonable effort to avoid or remedy any impedance to the completion and operation of the Purchase Order in good-faith. Confidentiality. Buyer agrees to keep information confidential if designated as such by BRE so long as such designation does not violate law. BRE hereby designates the following information confidential: amounts due under this Agreement; the calculation of amounts due under this Agreement; and any other relevant data pertaining to the calculation of amounts due under this Agreement, including, without limitation, statements, documents, records or other data, from third parties which verify price paid for, or quantity of, products and/or services entitled herein, and any contract relating to the purchase and/or sale of products and/or services from BRE. Forms. Any forms, applications, surveys, or other information gathering applications either hard-copy or electronic are provided for the conveyance of the user, and are subject to the provisions of the Privacy Policy (see; Section “Privacy Policy” within these terms). Proprietary information. Buyer agrees that BRE and/or its OEM suppliers has and claims various proprietary rights in the hardware, firmware, software, and the integration of ancillary materials, knowledge, and designs that constitute BRE and/or its OEM suppliers’ products, and that Buyer will not directly or indirectly cause any such proprietary rights to be violated. Design changes. BRE and/or its OEM suppliers’ reserves the right to make changes in design of any of its products without incurring any obligation to notify Buyer or to make the same change to units previously purchased. Export laws. Buyer agrees to comply with all applicable export laws, assurances, codes and license requirements, and controls of the United States and other applicable jurisdictions in connection with the use and resale of BRE and/or its OEM suppliers’ products including Buyer’s acceptance of responsibility for the payment of any relevant taxes or duties. Money laundering. BRE is firmly committed to avoid involvement with money laundering; to comply fully with all applicable anti-money-laundering, currency reporting, and record-keeping requirements; and to take affirmative steps to prevent, detect, and report to appropriate authorities any suspected violations. BRE will request information from suppliers to sufficiently determine that these suppliers are legitimate, trustworthy, and creditworthy entities. Binding Agreement. Except where expressly stated in writing and mutually agreed by both parties, this agreement represents a Binding Agreement as executed by and through an officially issued Purchase Order; and this agreement as issued by and through an officially issued Quote is a Binding Agreement only as much as the introducing “Disclaimer” accompanying an issued Quote Supplemental document or as stated here shall allow. Amendments. BRE will make modifications to this agreement from time to time. Notice. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of delivery, if delivered personally or by telecopy or similar transmittal (with receipt acknowledged), to the party to whom notice is to be given, or on the fifth business day after mailing if mailed by first class mail, registered or certified, postage prepaid, and properly addressed as follows:
Contact and Service Address.
Contact and Service Information for BUYER: (as provided by Invoice or Purchase Order)
Contact and Service information for SELLER: (as provided by Invoice or Purchase Order) Email Address: ContactTheOffice@Birdnecklace.com;
Severability of Provision. In the event that any portion of these Terms & Conditions is deemed unenforceable, all other provisions of this Terms & Conditions shall remain in full force and effect. Governing law. The internal substantive laws of the State of South Dakota shall govern this transaction.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.
Signature and Acceptance Clause. This agreement is in effect and enforce upon payment of the Buyer’s payment of the “Current Amount Due” as defined by the Invoice Agreement, and the Seller’s acceptance of this payment (also known as the “effective date”). Each party has 2 business days from the date of payment to dispute the entry of this agreement otherwise signature and entry of this Agreement, please see the Cancellation, Returns, and Absolute Right to Withdraw – clauses for more information on further acceptance and termination terms.
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