TERMS AND CONDITIONS OF SALE
1. Agreement. These terms and conditions of sale ("Terms and Conditions") apply to all sales of products and services ("Products") by BalCon Enterprises, Inc., a South Dakota business corporation ("BalCon"), to a customer of any product provided by BalCon ("Customer"). Except as expressly set forth in these Terms and Conditions, in the event of any conflict between an separate written agreement between BalCon and Customer and these Terms and Conditions, the separate written agreement shall control.
2. Acceptance. Any purchase order from Customer shall constitute an offer to purchase the Products identified on such order in accordance with these Terms and Conditions; and any quotation provided by BalCon to Customer shall constitute an offer to sell the Products identified on such quotation in accordance with these Terms and Conditions; which, when accepted by the parties, together with any separate written agreement, if any, shall collectively constitute a single comprehensive and binding agreement between the parties (the "Agreement"). Any terms and conditions proposed by Customer in any document that are different from, conflict with, or add to the Agreement are hereby rejected by BalCon, unless approved in a writing signed by BalCon. The Agreement shall be deemed accepted by BalCon upon the earliest to occur of: (a) Customer’s execution of a separate written agreement; (b) receipt by BalCon of a purchase order from Customer; (c) receipt by Customer of the Products; or (d) receipt by BalCon of payment in full or in part for the Products.
3. Purchase Price. Customer shall pay BalCon the purchase price for the Products as set forth in the Agreement, written quote, or if not so specified, in accordance with BalCon’s standard fee schedule. BalCon’s prices are exclusive of insurance, shipping, handling, and taxes. Customer shall have the sole responsibility for payment of all such insurance, shipping, handling, and taxes with respect to the purchase of any Products. If Customer is a tax-exempt entity, Customer shall present all appropriate documentation for any tax exemption to BalCon prior to placing its order.
4. Payment Terms. Customer shall abide by the payment terms in accordance with Section 3. Customers not required to pay in advance shall pay all invoices within thirty (30) days from the date on the invoice, unless otherwise specified on the invoice. If Customer fails to make any payments when due, Customer will be charged interest of one and one half percent (1.5%) per month (Eighteen percent (18%) per annum) or the maximum rate permitted by applicable law, whichever is less, on any overdue balance. Customer has no rights to set off against amounts due BalCon for the Products. All Customer account balances and payment history is reported monthly to Cortera credit reporting agency.
5. No Obligation to Extend Credit. BalCon may elect, but is not obligated to extend credit or financing terms to Customer. BalCon may, in its sole discretion, revoke any credit extended to Customer and require payment in full prior to BalCon’s delivery of Products. BalCon may retain possession of any Products until Customer has paid in advance all amounts due to BalCon. If BalCon retains a collection agency or legal counsel or incurs any out-of-pocket expenses to collect payments from Customer, all such costs will be added to the sums due, will bear interest at the rate set forth above, and will be the responsibility of Customer. Customer agrees that, other than BalCon’s delivery of the Products, payment to BalCon is not contingent on any other occurrence, matter or event, including, without limitation, Customer’s receipt of payment from any third party.
6. Shipment and Delivery. All orders will be shipped to you via Best Carrier. However, manner of shipping and routing of shipments is at the discretion of BalCon and may change as necessary, unless directed otherwise in writing by Customer and agreed to in writing by BalCon.All freight and shipping charges are the responsibility of and shall be paid by Customer.
7. Title and Risk of Loss. If the Products are shipped to Customer via third party common carrier, title and risk of loss shall pass to Customer upon delivery of the Products to the carrier. If BalCon delivers the Products to Customer, title and risk of loss shall pass to Customer upon delivery of the Products to Customer’s facility. If Customer or its agent or representative picks up the Products at BalCon’s facility, title and risk of loss shall pass to Customer upon Customer’s pickup of the Products at BalCon’s facility. With regard to Products that are returned to BalCon, title and risk of loss remains with Customer until receipt and acceptance of the Products by BalCon. All claims for damage and shortage in transit shall be made by Customer directly with and to the carrier.
8. Inspection and Acceptance. To receive credit for damaged product, damage must be noted on the bill of lading at time of delivery and put aside for freight carrier review. Customer shall have seven (7) days from receipt of the Products to inspect the Products for conformance with the applicable purchase order. All rejections shall be made in writing to BalCon and shall provide sufficient detail as to the reason for such rejection. The Products shall be deemed accepted by Customer upon the earliest to occur of: (a) written notice of satisfactory completion of inspection to BalCon by Customer; or (b) the expiration of the 7-day inspection period set forth in this Section 8.
9. Returns. Only "stock" Products in "as sold" condition are eligible for return; custom-manufactured Products will not be accepted for return. To return Products, Customer shall contact BalCon for a Return Material Authorization (RMA) number. No returns will be accepted without an RMA number. All Products accepted for return will be subject to a twenty-five percent (25%) or $50.00 restocking charge, whichever is greater. BalCon may decline a return that has been open, cut or damaged in any way. BalCon has sole discretion to determine, after examination, whether returned Products are defective, and BalCon’s determination shall be binding on Customer. Customer’s sole remedy for returned Products that have been found to be defective shall be either, in BalCon’s sole discretion: (a) replacement of the returned Products; or (b) reimbursement of the amount paid by Customer for the returned Products, subject to the restocking fee.
10. Samples. A reasonable amount of samples of most items will be available for pick-up from our distribution centers as determined and provided at the discretion of BalCon. Certain items are not available as samples. Customer shall be solely responsible for all freight charges incurred for shipping samples.
11. Minimum Orders. BalCon imposes no minimum dollar order; however, BalCon does impose minimum quantity sellable units (bundle or case minimums, etc.).
12. Used Products. If Customer has purchased used boxes or other items as part of the Products purchased under the Agreement, Customer acknowledges that such used boxes or items may contain trace amounts or residue of allergens (including, but not limited to peanuts, sugar, raw grains, and milk powder) and chemicals. Customer acknowledges that BalCon may not have knowledge of all allergens or chemicals to which the used Products may have been exposed. Customer acknowledges that exposure to allergens or chemicals to which Customer, its agents, or employees may be sensitive may be dangerous or even deadly. Customer acknowledges that such exposure does not render the used Products defective and damaged and accepts the risk of purchasing used Products that may contain such allergens and chemicals, known or unknown. Customer waives and releases BalCon Enterprises, Inc. from all current and future claims and liability whatsoever, including, but not limited to bodily injury and death, resulting from exposure to allergens or chemicals, known or unknown, from the used Products. Customer further hereby agrees to indemnify, defend, and hold Balcon Enterprise, Inc. totally harmless from and against any current or future claims and liability whatsoever, including, but not limited to bodily injury and death, resulting from exposure to allergens or chemicals, known or unknown, from the used Products.
13. Limited Warranty; Disclaimer of Warranties. BalCon warrants that all delivered Products shall materially conform to the published specifications. All warranty claims must be submitted directly to the manufacturer. Except as expressly set forth in the Agreement, BalCon hereby disclaims, and Customer hereby waives, all other warranties, whether express or implied (including, without limitation, warranties of merchantability, and fitness for a particular purpose).
14. Limitation of Liability. BalCon shall not be liable for any special, exemplary, indirect, incidental, punitive, or consequential damages, including, without limitation, lost profits, loss of use, loss of income, arising out of the Agreement or the use or possession of the Products, however caused and under any theory of liability, whether based in contract, tort, or otherwise. Notwithstanding anything contained in the Agreement to the contrary, BalCon’s liability to Customer for actual direct damages arising out of the Agreement shall not exceed the total amount paid by Customer to BalCon in the twelve-month period immediately preceding the event giving rise to the liability.
15. Indemnity. Customer shall indemnify, defend and hold harmless BalCon, its directors, officers, agents, employees, and contractors against any and all losses, expenses (including, without limitation, attorneys’ fees, other professionals’ fees and court costs), costs, damages (including, without limitation, consequential, exemplary and special damages), lost profits, demands, liabilities, suits and claims in connection with or arising, directly or indirectly, out of: (a) a breach of the Agreement by Customer or its employees, agents, or contractors; (b) any act, error or omission, whether negligent or not, of Customer or its employees, agents, or contractors, including, without limitation, personal injury (including, without limitation, death) and property damage; and (c) any disputes with regard to the title or possession of any Products.
16. Force Majeure. BalCon will be excused from any delay or failure in its performance of its obligations under the Agreement where the delay or failure is due, in whole or in part, directly or indirectly, to a cause beyond BalCon’s reasonable control including, without limitation, labor slow-down or stopage, riots, fire, weather, casualty, accidents, acts of God, acts of terrorism, civil disorder, war, shortage of labor or materials or governmental acts or restrictions. Upon any of the above events, BalCon will have the additional right to extend the time to provide the Products under the Agreement or to cancel any open purchase orders without any resulting liability to BalCon.
17. Confidentiality. Customer shall not disclose or cause to be disclosed to any third party, nor will Customer use, except in connection with its performance under the Agreement, financial information, projections, business plans, specifications, operation methods, know-how, techniques, manuals, intellectual property, customer lists or any other confidential property (collectively, "Confidential Information"), that may be given or shown to Customer, or to which Customer may be granted access by BalCon; provided, however, that Confidential Information will not include any information that: (a) is already known to Customer; (b) is or becomes publicly known through no act of Customer; (c) is rightfully received by Customer from a third party without restriction and without breach of the Agreement; (d) is independently developed by Customer; (e) is approved for release by written authorization of BalCon; or (f) is disclosed pursuant to compulsory statutory obligations, subpoena or order of court after written notice to BalCon at least ten (10) days prior to disclosure.
18. Attorneys’ Fees. In the event of a dispute between the parties with regard to the Agreement which results in litigation, BalCon, if the prevailing party, shall have its attorneys’ fees, professionals’ fees, and costs paid by Customer, and such sum may be added to any judgment entered in the litigation. BalCon’s right to the foregoing shall not merge with but shall survive the entry of judgment, and shall extend to appeals and collection.
19. Assignment. Customer shall not assign, delegate or otherwise transfer any of its rights or obligations under the Agreement without the prior written approval of BalCon. Any such assignment, delegation or transfer without BalCon’s prior written consent shall be void.
20. Severability. If one or more of the provisions of the Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such provision shall be modified or amended to the extent necessary to remove the invalidity, illegality, or unenforceability. If the amendment or modification of such provision is impossible, the Agreement shall be construed as if they never contained the invalid, illegal, or unenforceable provision, and such provision shall not affect any other provision of the Agreement.
21. Governing Law and Jurisdiction. The Agreement shall be construed and enforced in accordance with the substantive and procedural laws of the State of South Dakota, without regard to principles of conflicts of law. Customer consents to the exclusive jurisdiction and venue of the courts of the State of South Dakota, Union County with respect to the enforcement of the Agreement, and Customer waives any objections to such jurisdiction and venue, including objection as to an inconvenient forum.
22. Waiver. No claim or right arising out of a breach of the Agreement by Customer may be discharged in whole or in part by a waiver of the claim or right, unless the waiver is in writing signed by an authorized representative of BalCon. BalCon’s waiver or acceptance of any breach by Customer of any provisions of the Agreement shall not constitute a waiver of or an excuse for nonperformance as to any other provision nor as to any prior or subsequent breach of the same provision.
23. Entire Agreement and Modification. The Agreement constitutes the complete and exclusive statement of the terms of the contract between the parties and the final expression of the terms of such contract, and shall supersede all prior and contemporaneous agreements, inducements or conditions, express or implied, oral or written. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any term in the Agreement. BalCon’s acceptance or acquiescence in a course of performance rendered by Customer pursuant to the Agreement shall not be relevant to determine the meaning of this contract even though BalCon has knowledge of the nature of the performance and opportunity for objection. No amendment or modification of the Agreement shall be effective unless in writing and signed by both parties.
24. Commercial Transaction. The parties acknowledge and agree that the transactions contemplated by the Agreement are commercial transactions and not for personal, family, consumer or household use.
25. Discontinuation of Products; Design and Material Changes. BalCon may at any time discontinue offering or providing any or all of the Products without notice to Customer and without incurring any liability to Customer. BalCon may change designs, materials, and specifications of any Products without notice to Customer and without incurring any liability to Customer.
26. Waiver of Jury Trial. The parties expressly waive the right to a trial by jury in any action or proceeding brought relating to the Agreement, the parties preferring that such dispute be resolved through a trial to the Court (trial by judge) or through alternative dispute resolution by an arbitrator having jurisdiction with respect to such dispute.