The following Terms and Conditions of Sale (“Terms and Conditions”) shall apply to all sales made by WH Brady NV (“Supplier”) to a Purchaser of Supplier’s goods (“Purchaser”), and every agreement or other undertaking by Supplier is expressly conditioned on Purchaser’s assent to these Terms and Conditions.
1. ACCEPTANCE OF ORDERS
A quotation or tender addressed to the Purchaser from Supplier does not constitute an offer to sell, and in no circumstances shall any contract arise unless and until the Purchaser submits an order to the Supplier, and the Supplier issues a written acknowledgment of the order to the Purchaser.
2.1. Unless otherwise stated in writing, prices are quoted Ex Works Brady Zele with the exception of Switzerland (DDP), in each case as defined in Incoterms 2010.
2.2. The Supplier reserves the right to vary its prices without notice to the Purchaser and the price payable by the Purchaser shall be the price ruling at the date of delivery.
2.3. Prices in relation to a given quantity apply only to a continuous production run of that quantity unless specifically otherwise stated, such continuous run being at the Supplier’s sole discretion. If quantities are reduced or shipping instructions necessitate runs of lesser quantities, the price applicable to the lesser quantity will apply. If a lesser quantity is not covered by a quotation, a price adjustment will be made under a formula regularly used by the Supplier.
2.4. Discounts given to the Purchaser may not be applicable in the event of future price reductions. Discounts may only be used in conjunction with other sales promotions or discount offerings with the Supplier’s consent.
3.1. Unless otherwise stated in writing, payment terms are net thirty (30) days from the date of the invoice.
3.2. In the European Union interest shall be charged on outstanding balances at the maximum rate set under national regulations enacting European Union directives governing late payment in commercial transactions. Outside of the European Union, interest will be charged at the lesser of 10% per annum and the maximum permitted by law.
3.3. This agreement shall be subject to the provision that if at any time thereafter the Supplier is advised of circumstances casting doubt on the Purchasers creditworthiness or satisfactory security for payment is not given on request or the Purchaser is in default in payment for other goods, the Supplier may require payment of the whole or part of the purchase price from the Purchaser in advance and of the full price of all other goods sold to the Purchaser by the Supplier and pending such payments this agreement shall be suspended. In the event of such payments not being made within a reasonable period stipulated by the Supplier, the Supplier may cancel the Purchasers order without liability and the Purchaser shall be responsible for any resulting loss to the Supplier.
3.4. The Supplier may require new customers to pay under a bank letter of credit.
3.5. The Purchaser may not deduct or offset any amount due or to become due to Purchaser against any claim the Supplier has against the Purchaser.
3.6. The Supplier is entitled to adjust prices adequately after the agreement was entered into in the event that production costs have increased/decreased, particularly that labor costs have changed due to conclusions of labor agreements or price changes of production material. Relevant changes shall be presented to the Purchaser.
4. DELIVERY TERMS
4.1. The Supplier will choose means of delivery and organize transportation to the site of the customer.
4.2. At the option of the Supplier, goods sold to the Purchaser may be delivered in two or more installments and, in that event, each installment shall be deemed to form a separate contract and failure to deliver or defective delivery of any one installment shall not constitute a breach of contract in respect of other installments.
4.3. Delivery dates given in the agreement shall constitute estimates of expectation only and shall not be binding. If the Supplier fails to deliver the goods by such date, such failure shall not constitute a breach of the contract and the Purchaser shall not be entitled to claim compensation for such failure or for any consequential loss or damage resulting therefrom.
4.4. On custom orders, Brady reserves the right to ship 5% over and under the quantity ordered, and to invoice for the full quantity delivered.
4.5. Where despatch or delivery or completion of the work is delayed by more than thirty (30) days beyond the date given in the agreement, the Purchaser shall grant the Supplier a reasonable extension period and, if upon the expiry of the extension period, the goods have not been despatched or delivered or the work has not been completed, the Purchaser may forthwith by notice in writing terminate the agreement and in such circumstances the Purchaser shall pay at the contract rate for all goods sold or work done by the Supplier to the actual date of termination. Neither party shall have any further liability to the other in respect of the goods undelivered or work not completed.
4.6. If at the date on which the Supplier is ready to dispatch or deliver the goods, the Purchaser delays acceptance thereof for any reason whatsoever, the goods will be stored by the Supplier but Purchaser shall pay to the Supplier an amount equivalent to what the Purchaser would be liable to pay if the goods had in fact been despatched or delivered together with reasonable storage charges for the period of delay and the cost of any additional handling and transporting incurred. If on the expiry of thirty (30) days after the date on which Supplier is ready to despatch or deliver the goods the Purchaser has not accepted the goods, Supplier reserves the right immediately to cancel the Purchasers order. This cancellation shall entitle the Supplier to dispose of the goods and obtain from the Purchaser compensation for loss of profit in addition to any other sums due to the Supplier under these conditions.
4.7. The Supplier reserves the right to modify, change, supplement or discontinue product offerings at any time without notice.
Title of the goods shall transfer to the Purchaser upon delivery.
6. INSPECTION / ACCEPTANCE / RETURNS
6.1. When deficiency in quantity or quality of the goods is discovered upon delivery, notice of deficiency must be promptly reported to the Supplier in writing. In the absence of an appropriate written notice, including full particulars of any deficiency in the quality or quantity of the goods, sent to the Supplier after the Purchaser’s inspection of the goods, the Purchaser shall be conclusively deemed to have inspected and accepted the goods within thirty (30) days after receipt. Upon acceptance, the Supplier shall not be liable for patent defects. The Purchaser shall lodge with the Supplier any claims in respect of defects which are apparent upon such inspection in writing within seven (7) days after the conclusion of the said inspection. After acceptance of the goods, the Supplier shall not be liable for patent defects.
6.2. The Purchaser’s sole remedy for rejection of goods is replacement or repair of defective goods (at the Supplier’s discretion).
6.3. No goods are to be returned for exchange or credit without prior written authorization from WH Brady NV, Lindestraat 20, Zele, B-9240, België.
6.3.1. Returned items direct shipped from the Supplier’s own supplier (with the exception of faulty or incorrect goods) will be subject to a restocking fee depending on carriage cost incurred to deliver and to uplift goods.
6.3.2. Any credits or refunds will be made only after receipt and inspection of the goods.
6.3.3. No credit will be given by the Supplier in respect of delivery, postage or transit charges levied by the Supplier, or incurred by the Purchaser.
6.3.4. The Supplier may require the Purchaser to make a replacement order with the same value as the returned goods. The Supplier reserves the right to levy a 15% handling charge on any goods returned for credit.
7. LIMITED WARRANTY
7.1. Supplier warrants that all goods will be free from defects in workmanship and materials for a period of twelve (12) months from the date of delivery of original goods (not replacement goods) by Supplier (“Limited Warranty”).
7.2. The Limited Warranty does not apply if (A) the defect is the result of use or handling of the goods in a manner, circumstances or purposes other than those approved or instructed by Supplier; or (B) the goods are misused or abused or there is evidence of tampering, mishandling, alteration, neglect, accidental damages, modification or repair without the approval of the Supplier. Further, warranty claims are not permitted for natural wear and tear.
7.3. THE LIMITED WARRANTY PROVIDED ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE. THE LIMITED WARRANTY IS IN LIEU OF ANY OTHER LIABILITY OR OBLIGATION OF THE SUPPLIER FOR LOSSES, EXPENSES, INCONVENIENCES OR DAMAGES (WHETHER SPECIAL, INDIRECT, SECONDARY, OR CONSEQUENTIAL) ARISING FROM OWNERSHIP OR USE OF THE GOODS. REPAIR, REPLACEMENT, OR CREDIT, LESS REASONABLE WEAR AND DEPRECIATION, (AT SUPPLIER’S OPTION) UPON RETURN OF THE GOODS, IS PURCHASER’S SOLE REMEDY FOR ANY SUCH LOSSES, EXPENSES, INCONVENIENCES OR DAMAGES. PURCHASER RECOGNIZES THE PURCHASE PRICE HAS BEEN NEGOTIATED TO REFLECT THIS ASSUMPTION OF RISK, AND WAIVES ANY RIGHTS THAT IT MIGHT OTHERWISE BE ENTITLED TO IN CONNECTION WITH THE MATTERS COVERED IN THIS PARAGRAPH.
7.4. The Purchaser may not return any goods, under warranty claim or otherwise, without first reporting to the Supplier the reasons for such return and first obtaining and then observing such reasonable instructions as the Supplier may give in authorizing any return.
8. LIMITATION ON LIABILITY
8.1. Under no circumstances whatsoever shall the Supplier be liable for any indirect, special, or consequential damages, whether actual notice of harm is provided, foreseeable or unforeseeable, and whether based upon loss of resale profits, loss of business opportunity, loss of anticipated savings, loss of goodwill, loss of use of money, work stoppage, impairment of other assets, or otherwise and whether arising out of breach of warranty, breach of contract, strict liability in tort, negligence, misrepresentation, or otherwise, except where applicable law requires such liability.
8.2. The Supplier’s total aggregate liability for any and all claims, liabilities, expenses, and all other damages or remedies arising under this agreement (collectively “claims”), whether such claims are based on contract, negligence, or other tort, strict liability, warranty, indemnity, or any other type of liability, shall in no event exceed the amount paid for goods by the Purchaser to the Supplier in the current transaction that is the basis for these Terms and Conditions.
9. PATENT, COPYRIGHT AND TRADEMARK INDEMNITY
9.1. In the event that a good supplied by the Supplier is claimed to directly infringe a patent, copyright or trademark, copyright or trademark corresponding thereto in effect at the time the Supplier issues its invoice or written acknowledgment of the order, then the Purchaser shall permit the Supplier, at its option and expense, either to (A) procure the right to continue to use such good, (B) replace or modify such good so that the good supplied becomes non-infringing, or (C) accept return of such good and reimburse the Purchaser for the purchase price, less a charge for reasonable wear and depreciation.
9.2. The Supplier shall, at its expense, defend any action against the Purchaser based on a claim that a good infringes a patent, copyright or trademark corresponding thereto, provided that the Purchaser: (A) notifies the Supplier promptly in writing of such action, and furnishes copies of all demands, process and pleadings; (B) gives the Supplier sole control of the defense thereof (and any negotiations for settlement or compromise thereof); and (C) cooperates in the defense thereof at the Supplier’s expense.
9.3. THE FOREGOING STATES THE ENTIRE LIABILITY OF THE SUPPLIER FOR INFRINGEMENT CLAIMS AND ACTIONS, AND THE PURCHASER HEREBY WAIVES ANY RIGHTS THAT IT MIGHT OTHERWISE BE ENTITLED TO IN CONNECTION WITH THE FOREGOING.
9.4. The Supplier shall have no liability to Purchaser for any action or claim alleging infringement based upon any conduct involving: (A) the use of any good in a manner other than as specified by the Supplier; (B) the use of any good in combination with other products, equipment, or devices not supplied by the Supplier; or (C) the alteration, modification or customization of any good by any person other than the Supplier, or by the Supplier based on the Purchaser’s specifications or otherwise at the Purchaser’s direction (regardless of whether such alteration, modification or customization occurs before or after the good is originally shipped by the Supplier to the Purchaser). In the event of an infringement action or claim against the Supplier which is based on any conduct described in the preceding sentence, the Purchaser shall indemnify and hold the Supplier harmless against all damages, costs or expenses, including, without limitation, attorneys’ fees paid or incurred by the Supplier in connection with such action or claim.
10. EXPORT CONTROL
In the event of an infringement action or claim against the Supplier based on this section, the Purchaser shall indemnify and hold the Supplier harmless against all damages, costs or expenses, including without limitation, attorneys’ fees paid or incurred by the Supplier in connection with such action or claim.
11. TOOLING AND ARTWORK
11.1. If the Purchaser pays for tooling, negatives or plates (collectively “tooling”), then such tooling will be the property of the Purchaser and will be maintained free of charge by the Supplier while being used in production. Upon the termination of production, the Purchaser shall arrange for removal of such tooling at the Purchaser’s cost. Upon sixty (60) days notice upon production termination, the Supplier may dispose of such tooling, unless otherwise agreed in writing. If the Purchaser does not pay for tooling, then any such tooling will be the property of the Supplier.
11.2. All artwork submitted by the Purchaser is subject to the approval of the Supplier. The Supplier will notify the Purchaser of any additional charges for retouching or reworking of artwork (notice in the Supplier’s invoice to the Purchaser is sufficient) and will bill the Purchaser at cost for same. The Supplier will provide Purchaser with one photo proof, which shall be subject to approval by the Purchaser.
12.1. For purposes of this agreement “Confidential Information” is any information which (A) has been marked confidential, (B) is identified as confidential at the time of disclosure either orally or in writing, or (C) due to its character and nature, a reasonable person under similar circumstances would understand to be confidential. In no event shall this section supersede any Non Disclosure Agreements entered into between the parties prior to or after this Agreement. In the event this section conflicts with a Non Disclosure Agreement currently or subsequently in effect between the parties, the Non Disclosure Agreement shall prevail.
12.2. The parties agree that: (A) the receiving party may use Confidential Information solely for the purposes of this agreement; (B) receiving party shall instruct and require all of its employees, agents, and representatives who have access to the Confidential Information of the disclosing party to maintain the confidentiality of the Confidential Information; (C) the receiving party shall exercise at least the same degree of care, but not less than reasonable care, to safeguard the confidentiality of the Confidential Information as the receiving party would exercise to safeguard receiving party’s own Confidential Information; and (D) the receiving party shall only disclose the Confidential Information to employees, agents, or representatives (collectively “representatives”) on a “need to know basis.”
12.3. Confidential Information shall not include information which (A) the receiving party possessed before this agreement, (B) subsequently becomes publicly available without the receiving party’s breach of any obligation owed to the disclosing party; (C) is disclosed to the receiving party by a third party who has the right to disclose such information, or (D) receiving party can demonstrate the information was independently developed without reliance on any Confidential Information of the disclosing party.
12.4. The receiving party may disclose Confidential Information if required by law; however, the receiving party must promptly notify the disclosing party so that the disclosing party may have reasonable opportunity to object to such disclosure.
12.5. Promptly upon written request of the disclosing party, the receiving party shall, and shall cause its representatives to, return to the disclosing party, or at the disclosing party’s option destroy, all Confidential Information. If the receiving party destroys the Confidential Information, it shall certify that it has done so in writing and promptly deliver that certificate to the disclosing party.
13. FREE GIFTS
13.1. Qualification for gifts and promotions are based on net order and excludes VAT and delivery charges. Offer valid only while stocks last. Offers must be requested at time of order and cannot be redeemed against existing orders. Only one free gift may be claimed per order or per customer. We reserve the right to withdraw the offer at any time. Gifts have no alternate cash value. We reserve the right to offer alternate gifts of equal or greater value in the event the advertised item is no longer available.
13.2.For the avoidance of doubt, all promotional gifts will be the property of the corporate purchaser and not its employees or representatives. The Purchaser agrees to cooperate with the Supplier to ensure compliance by the Purchaser's employees and other representatives with the Supplier's gift policy. Prior to delivering promotional gifts, we may require an appropriate representative of the Purchaser to confirm in writing that the Purchaser will comply with our promotional gifts policy. Notwithstanding the foregoing, the Purchaser acknowledges and agrees that Purchaser assumes full responsibility for compliance with applicable law relating to promotional gifts by its employees and other representatives. Government agencies are not eligible for promotional gifts.
14. DATA PROTECTION
14.1. Each party shall comply with its respective obligations under relevant data protection laws, particularly with respect to personal data (as defined by applicable law), that is processed by it in the course of performing its obligations under this agreement.
14.2. Without prejudice to the generality of Section 14.1, the Purchaser shall maintain sufficient technical and organisational measures to prevent unauthorised or unlawful processing of personal data and to prevent any loss, destruction or unauthorized disclosure of personal data.
All notices under these Terms and Conditions shall be given in writing and shall use one of the following methods of delivery: personal delivery, Registered or Certified Mail (in each case, return receipt requested and postage prepaid), nationally recognized overnight courier, (with all fees prepaid), facsimile or email. A notice is only effective if the party giving notice has complied with this section. Notice is deemed received: (A) on the date of delivery if delivered in person; (B) on the fifth business day after the date of mailing if sent by Registered or Certified Mail; (C) on the first business day after the date of delivery if delivered using a nationally recognized overnight courier; or (4) upon receipt during normal business hours, at the location notice is received, of facsimile or email.
16. FORCE MAJEURE
The Supplier shall not be responsible for any failure to fulfill its obligations here under due to causes beyond its reasonable control, even if they occur at our suppliers, including without limitation, acts or omissions of government or military authority, terrorist actions, acts of God, shortages of materials, transportation delays, fires, floods, labor disturbances, riots or wars.
The invalidity or unenforceability (in whole or in part) of any provision, term or condition hereof, will not affect in any way the validity and enforceability of the remainder of such provision, term or condition, or any other provision, term or condition: provided, if the invalid provision is of such essential importance that it is to be reasonably assumed the parties would not have entered into this agreement without such provision, then the parties must negotiate in good faith to replace any invalidated provision with a provision as close in meaning to the original provision as legally possible.
18. AMENDMENTS, MODIFICATIONS, AND ENTIRE AGREEMENT
18.1. These Terms and Conditions constitute the final and complete agreement between the parties, and may not be modified, terminated or repudiated, in whole or in part, except in a writing executed and mutually agreed upon by the authorized representatives of the Supplier and the Purchaser. The Supplier may, at its sole option, treat any attempted modification, termination, or repudiation to which it does not assent in writing, as a material breach of these Terms and Conditions.
18.2. Any quotation, order acceptance, or invoice is subject to these Terms and Conditions. It is expressly agreed if the Purchaser issues a purchase order or other document for the products and services provided under these Terms and Conditions, such documents will be deemed to be for the Purchaser’s internal use only, and shall in no event be binding on the Supplier.
18.3. These Terms and Conditions supersede any prior understanding or agreement among the parties respecting the subject matter included in these Terms and Conditions, except Non Disclosure Agreements as referenced above. No representations, arrangements, understandings or agreements relating to the subject matter, oral or written, exist among the parties except as expressly referenced in these Terms and Conditions. The Purchaser’s terms and conditions are expressly excluded.
The Purchaser shall not assign, transfer, or delegate any of its rights, duties, interests, or obligations under these Terms and Conditions without the prior written consent of the Supplier. Any such assignment, transfer, or delegation without the Supplier’s prior written consent shall be void and cause for termination of any rights or obligations under these Terms and Conditions.
The Supplier will not be deemed to have waived any provision of these Terms and Conditions or any breach by the Purchaser of any provision hereof, unless specifically set forth in writing and executed by an authorized representative of the Supplier. No such waiver by the Supplier will constitute a waiver of any other provision or of such provision or breach on any other occasion.
21.1. Upon any breach by the Purchaser, or failure by the Purchaser to comply with any of these Terms and Conditions, or if the Purchaser becomes unable to conduct its normal business operations (including without limitation inability to meet its obligations as they mature), or if Purchaser becomes the subject of any proceeding under any bankruptcy law or criminal law, ceases to carry on business, or makes any assignment for the benefit of creditors, the Supplier will have the right to immediately cancel or terminate any and all agreements without obligations to the Purchaser relating to sales of the goods, in whole or in such part, which may result in the non-shipment or cancellation of the Purchaser’s pending or future order(s) and/or termination of the Purchaser’s relationship with the Supplier, and to recover from the Purchaser damages for breach, and any unpaid balance due shall become immediately due and payable.
21.2. All remedies in these Terms and Conditions will be cumulative, and not alternative or exclusive, and will be in addition to all other rights and remedies provided by applicable law. The exercise or failure to exercise any remedy by the Supplier will not preclude the exercise of the same or other remedies under these Terms and Conditions.
21.3. The parties to these Terms and Conditions are independent contractors and nothing contained in these Terms and Conditions shall be construed to place the parties in the relationship of employer and employee, partners, principal and agent, or joint ventures. Neither party shall have the power to bind or obligate the other party.
21.4. These Terms and Conditions, and the transactions contemplated hereby, will be governed by, and construed and interpreted in accordance with, the laws of Belgium.
Any and all disputes arising under or relating to these Terms and Conditions and the transactions contemplated hereby shall be determined by binding arbitration based on the law of the jurisdiction where the Supplier’s sales office responsible for the sale to Purchaser of goods considered by these Terms and Conditions is located. Any controversy or claim arising out of or relating to this contract shall be determined by arbitration in accordance with the International Arbitration Rules of the International Centre for Dispute Resolution. Arbitration shall be held in Gent (Belgium).
23. ETHICS POLICY
The Supplier has a global Code of Ethics Policy (the “Policy”), which governs the behavior and relationships between the Supplier’s employees and its customers and suppliers. The Policy can be viewed at www.bradycorp.com, under the Investors tab, in Corporate Governance section, under the Ethics Guide link. The Purchaser agrees to comply with this policy. If the Purchaser believes the conduct of any Supplier employee's violates the terms of this Policy, the Purchaser shall report the violation by using the confidential website (www.bradyethics.com), telephone number or fax line as outlined on page 5 of the Policy.
Each of the Purchaser and the Supplier hereby agrees and certifies that neither it, nor any of its directors, officers, agents, affiliates or employees will (i) use any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to political activity, (ii) make any unlawful payment or offer or provide anything of value to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns, (iii) make any other unlawful payment, or (iv) violate any applicable export control, money laundering or antiterrorism law or regulation of the European Union or any other jurisdiction; nor will any of them otherwise take any action which would cause either party to be in violation of any laws, including without limitation the U.S. Foreign Corrupt Practices Act, the United Kingdom Bribery Act of 2010 or laws, regulations, codes or national conventions or any related international conventions relating to bribery of foreign or domestic officials. The Purchaser will, and will causes its employees and representatives, to comply with the U.S. Foreign Corrupt Practices Act, the United Kingdom Bribery Act of 2010 and other applicable antibribery laws.