These terms and conditions govern the sale of Products (“Product or Products”) and provisions of services (“Services”) by Biological Innovation and Optimization Systems, LLC (BIOS) and its affiliates (“Seller”) as well as by third party vendors and/or service providers of Seller. These terms and conditions (“Agreement”) take precedence over Buyer’s supplemental or conflicting terms and conditions to which notice of objection is hereby given. Neither Seller’s commencement of performance or delivery shall be deemed or construed as acceptance of Buyer’s supplemental or conflicting terms and conditions. BIOS’ failure to object to conflicting or additional terms will not change or add to the terms of this agreement. Buyer’s acceptance of the Products and/or Services from Seller shall be deemed to constitute acceptance of the terms and conditions contained herein.
1. Orders:
All Purchase Orders placed by Buyer are subject to acceptance by Seller by issuance of a Sales Order and Deposit Invoice to Buyer and upon payment of deposit cannot be cancelled or rescheduled without Seller’s written consent. All orders must identify the products, unit quantities, part numbers, applicable prices and requested delivery dates of the Products being purchased. Seller may in its sole discretion allocate Product among its customers. Seller may designate certain Products and Services as non-cancelable, non-returnable (“NCNR”) for which payment may be due in full upon issuance of the Sales Order and Deposit Invoice, and the sale of such Products shall be subject to any special terms and conditions contained in Seller’s Customer Acknowledgement or NCNR Product Form, which shall prevail and supersede any inconsistent terms and conditions contained herein or elsewhere. Any Products to be specially manufactured for Buyer that are not suitable for resale to others in the ordinary course of business, including, without limitation, any Products from Voltserver, shall be NCNR with payment due in full for such Products and Services upon issuance of the Sales Order and Deposit Invoice.
2. Prices:
The prices of the Products are those prices specified on the front of the Sales Order and Deposit Invoice. Pricing for undelivered Products may be increased in the event of an increase in Seller’s cost, change in market conditions or any other causes beyond the Seller’s reasonable control. Price quotations shall automatically expire in thirty (30) days from the date issued, or as otherwise stated in the quotation.
3. Taxes:
Unless otherwise agreed to in writing by Seller, all prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including federal, state and local sales, excise and value added, goods and services taxes, and any other taxes. Buyer agrees to indemnify and hold Seller harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation and taxes shall appear as separate items on Seller’s Sales Order and Deposit Invoice.
4. Payment:
Payment may be made by check, money order, credit card, or wire transfer (all fees are borne by the Buyer). Where Seller has not extended credit to Buyer in writing and payment is not due in full upon issuance of the Sales Order and Deposit Invoice (such as for NCNR Products), terms of payment shall be as follows: 50% of total invoice plus an estimate for shipping costs is due and payable with placement of Purchase Order upon Seller’s issuance of a Sales Order and Deposit Invoice, the balance of the total invoice for such Products and Services is due and payable upon delivery, acceptance and receipt of such Products by Buyer at Seller’s place of shipment. Any payments due upon placement of the Purchase Order shall constitute a security deposit from the Buyer for such Purchase Order (the “Deposit”). Such Deposit shall be subject to setoff for any default by Buyer and is forfeited and non-refundable in the event of cancellation as set forth in Section 7(b) below. No interest shall be due or payable by Seller on the Deposit. Credit will not be extended on Buyer’s opening order or orders less than one hundred thousand dollars ($100,000), and shall only be extended by Buyer in writing. Where Seller has extended credit to Buyer, terms of payment shall be net thirty (30) days from date of invoice, without offset or deduction. On any past due invoice, Seller may impose interest at the rate of one and a half percent (1.5%) per month. If Buyer fails to make each payment when it is due, Seller reserves the right to change or withdraw credit and thereby suspend or cancel performance under any or all purchase orders or agreements in which Seller has extended credit to Buyer. Seller will issue a subsequent invoice if actual shipping costs exceed its estimate, and refund Buyer for payment of any excess, subject to any applicable offsets.
5. Energy Incentive / Rebate Payments
A Buyer’s project may qualify for an energy incentive or rebate based on certain criteria and specifications. The Seller is not liable for the energy incentive / rebate amount and the Buyer must make payment in full as defined in Section 4 above unless otherwise agreed to by both parties. If the Buyer and the Seller agree to defer the payment of the energy incentive /rebate amount, this amount must be paid within 45 days or when the Buyer receives the energy incentive / rebate from the utility or sponsoring organization, whichever comes first.
In addition, a three and a half percent (3.5%) service charge will be added to the total deferred amount. On any past due invoice for the deferred amount, Seller may also impose interest at the rate of one and a half percent (1.5%) per month. The Buyer is still responsible for making the payments on the non-deferred amount as defined in Section 4 above.
6. Delivery and Title:
Unless otherwise noted and documented on the Seller’s Sales Order and Deposit Invoice, all deliveries will be made “EXWORKS” place of shipment. Title and risk of loss pass to the Buyer upon delivery of the Product to the carrier. Seller’s delivery dates are estimates only and Seller is not liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of the Seller, nor shall the carrier be deemed an agent of the Seller. A delayed delivery of any part of an Order does not entitle Buyer to cancel other deliveries. Unless approved in writing in advance by Seller, if Buyer requests a delay in delivery of any Products following payment of the Deposit, Seller may invoice Buyer for, and Buyer agrees to pay, restocking or storage fees on each Product for which a delayed delivery is requested.
7. Remedies:
(a) In the event of default by Buyer (other than for cancellation as set forth below), Seller shall be entitled to costs, fees, and expenses, including but not limited to recovery of attorney fees, court costs and fees, and collections costs. This Agreement is made in the State of Florida and shall be governed by Florida law.
(b) In the event Buyer cancels the Purchase Order, whether in whole or in part on or before delivery and receipt of all such Products and Services, Seller shall waive any and all other remedies against Buyer, including without limitation incidental and consequential damages, except the following, which shall be Seller’s exclusive remedy: (i) termination of the Purchase Order with respect to the Products and Services cancelled by Buyer; and (ii) Buyer shall forfeit the Deposit for such Products and Services, subject to repayment of any unused shipping expenses. The parties agree that, as of the purchase date, the exact amount of damages in the event the Purchase Order is cancelled would be extremely difficult to ascertain, and that this amount constitutes a reasonable and fair approximation of such damages (including Seller’s lost profits and the costs of storage, overhead, repurposing and resale of such cancelled Product), and is not a penalty. If any provision hereof is found to be void or unenforceable, the unaffected provisions will remain in effect and the parties will negotiate a mutually acceptable replacement provision consistent with the parties’ original intent.
BIOLOGICAL INNOVATION AND OPTIMIZATION SYSTEMS, LLC.
2355 Camino Vida Roble, Carlsbad, CA 92011
(Last updated 073024)