The sale of product(s) (“Products”) by Brain Corporation, a California corporation, and/or any of its subsidiary or affiliated companies (“Brain”) to a buyer (“Buyer”) are subject to the terms and conditions in the following documents (listed in order of priority starting with the highest priority): (i) a mutually agreed and signed agreement by the Parties, if any, relating to the sale of Products; (ii) an invoice issued by Brain to Buyer; and/or (iii) these General Sale Order Terms and Conditions (collectively, as applicable, the “Contract”). In the event of any conflict between the terms and conditions of the documents of the Contract, the document with the higher priority shall prevail. Buyer and Supplier are individually referred to herein as a “Party” and collectively as “Parties”.
1. Supply of Products. Brain shall supply to Buyer the Products at the pricing and quantity, along with any additional requirements, listed in Brain’s parts order portal, price list, or if applicable, the Contract pursuant to the terms and conditions provided in the Contract. Customer shall order the supply of such Products through the parts order portal or a written purchase order (in each case, a “Purchase Order”).
2. Acceptance. Any of the following acts by Buyer will constitute acceptance of the Contract: (i) electronic acceptance; (ii) acknowledgment of the Contract; (iii) acceptance of the Products; or (iv) any payment for Products by Buyer (e.g., pursuant to an invoice provided by Brain). The Parties agree that the terms of the Contract shall prevail over any conflicting terms and conditions in any acknowledgment or other responsive document provided by Buyer. Any additional or different terms or conditions in any acknowledgment or other instrument or response of Buyer shall be deemed objected to by Brain without need of any further or additional notice of objection, and such additional or different terms shall be of no effect or in any way binding upon Brain. A Purchase Order shall be deemed accepted by Brain unless Brain provides written notice of rejection within five (5) business days of its receipt of the Purchase Order.
3. Invoices and Payment Terms. If Buyer orders Products through Brain’s parts order portal, payment shall be made as prompted therein. Otherwise, Brain shall send Buyer an invoice for each Product shipment. Each such invoice shall include (i) Buyer’s Purchase Order number, (ii) Brain’s part numbers, if applicable, (iii) Product pricing, and (iv) quantities shipped. Such invoices that are undisputed shall be due upon Buyer’s receipt of the invoice. Unless otherwise stated, hereunder, payments due shall be made, at Brain’s option, by wire transfer, certified check, bank check or such other method as may be agreed upon by the Parties.
4. Shipments of Products; Title and Risk of Loss. Unless otherwise agreed upon, shipment of Products within the U.S.A. shall be F.O.B. shipping point. For international, shipments of Products shall be EXW, Incoterms 2020. Each shipment shall be marked clearly and reflect the (i) Purchase Order number, (ii) ship date, and (iii) name of consignee and consigner. An itemized packing list shall be included in each shipment. Brain shall use its commercially reasonable best efforts to ship Products to Buyer on or before the requested receipt date designated in the Contract. Any expense for any special packaging or any special delivery requested by Buyer shall be borne by Buyer. Brain shall advise Buyer regarding any such extraordinary packaging or delivery expenses in advance and Buyer shall agree to same before incurring any liability for such expenses.
5. Warranty. Brain agrees to pass through to Buyer any warranties given by its third party vendors in connection with the Products to the extent permitted by the terms and conditions of such warranties.
6. Confidentiality. All confidential or proprietary information of Brain, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Brain to Buyer, whether disclosed orally, or visually, or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with the Contract is confidential, solely for the purpose of performing the Contract and may not be disclosed or copied or used for any purpose other than the fulfillment of Supplier’s obligations under the Contract unless authorized in advance by Brain in writing (which authorization may be granted or withheld by Brain in its sole discretion). Buyer shall not reverse engineer, disassemble, decompile, or otherwise analyze the physical construction of any Products. Notwithstanding the terms herein, if Brain has previously executed a non-disclosure contract with Buyer (the “NDA”) it shall remain in full-force and effect and in the event of any conflict between the terms of this Contract and the NDA, the terms and conditions of this Contract shall control.
7. Indemnification.
a. Brain’s Indemnity Obligations. Brain agrees to defend, indemnify and hold harmless Buyer from and against any and all third-party losses, damages, suits, expenses (including reasonable attorneys’ fees) and costs arising from Brain’s gross negligence or intentional misconduct in connection with its provision of Products to Buyer.
b. Buyer’s Indemnity Obligations. Buyer agrees to indemnify and hold harmless Brain from and against any and all third-party losses, damages, suits, expenses (including reasonable attorney’s fees) and costs arising from Buyer’s use or installation of the Products.
c. Procedures for Indemnification. Promptly after receipt of any written claim or notice of any action giving rise to a claim for indemnification as described in Section 7.a. and 7.b., the indemnified party will provide the indemnifying party with written notice of the claim or action. The indemnified party will provide the indemnifying party with reasonable cooperation and assistance in the defense or settlement of any claim, and grant the indemnifying party control over the defense and settlement of the same, provided that the indemnified party shall be entitled to participate in the defense of the claim and to employ counsel at its own expense to assist in the handling of the claim. The indemnifying party shall not agree to any settlement which results in an admission of liability by the indemnified party without the indemnified party’s prior written consent, which consent shall not be unreasonably withheld or delayed. If the indemnifying party fails to assume the defense of any claim, or does not diligently pursue such defense, the indemnified party may retain counsel and assume the defense of such claim at the cost of the indemnifying party, and in that case, the indemnifying party shall reimburse the indemnified party for all of its reasonable attorneys’ fees, costs and damages incurred in settling or defending such claims within thirty (30) days of each of the indemnified party’s written requests.
8. Limitation of Liability. All Products provided hereunder are provided to Buyer on an “as is” basis without warranty of any kind. Brain hereby expressly disclaims all warranties, express or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose, with respect to the Products. Brain’s total liability arising out of the supplying or use of Products, whether in contract, tort (including negligence), strict liability or otherwise shall not in any case exceed the cost of the Products sold for which any claim is made. In no case shall Brain be liable to Buyer or any third party for any incidental, consequential, punitive or special damages.
9. Insurance. During the term of the Contract and for a period of twelve months thereafter, Brain shall, at its own expense, maintain and carry insurance which includes, but is not limited to, commercial general liability (including Products liability), automotive, and employment liability in a sum no less than one million USD per occurrence and two million USD in aggregate, with financially sound and reputable insurers. Upon Buyer’s request, Supplier shall provide Buyer with a certificate of insurance from Supplier's insurer evidencing the insurance coverage specified in this paragraph.
10. Non-Solicitation. Buyer will not, during the performance of this Contract and for a period of one (1) year following any termination, solicit or in any manner encourage employees or consultants of Brain to leave its employment with Brain.
11. Termination. Brain may cancel any Contract, in whole or in part, at any time and for any reason. Cancellation of the Contract for any reason shall not discharge either Party's liability for obligations incurred hereunder and amounts unpaid at the time of such termination. Buyer shall be responsible for the payment of any delivered Products that were shipped by Brain prior to termination.
12. Rights in Intellectual Property. As between Buyer and Brain, all intellectual property rights in the Products provided to Buyer are vested solely and exclusively in Brain. No intellectual property rights in the Products are assigned, licensed or transferred hereunder.
13. General.
a. Force Majeure. Neither Party shall be liable hereunder for any failure or delay in the performance of its obligations under the Contract, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, acts of God, or other similar or different occurrences beyond the reasonable control of the Party so defaulting or delaying in the performance of the Contract, for so long as such force majeure event is in effect. Each Party shall use reasonable efforts to notify the other Party of the occurrence of such an event within five (5) business days of its occurrence. Should a Party experience a force majeure event, it shall take all reasonable measures to mitigate any impact that such event has on its performance of the Contract, and shall take all reasonable steps to perform despite such event. If Brain’s performance is delayed over thirty (30) days, Buyer may terminate the Contract.
b. Compliance with Laws. Brain represents, warrants and covenants that it shall comply with all applicable laws and regulations.
c. Feedback. Buyer may provide feedback and suggestions about the Products to Brain (“Feedback”). If Buyer provides Feedback, then Brain may use that Feedback without restriction and without obligation to Buyer.
d. Governing Law and Venue. The Contract shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any controversy or claim arising out of or relating to the Contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Claims shall be heard by a single arbitrator, unless the claim amount exceeds $500,000, in which case the dispute shall be heard by a panel of three arbitrators. The place of arbitration shall be San Diego, California. The arbitration shall be governed by the laws of the State of California. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings. The standard provisions of the Commercial Rules shall apply. Arbitrators will have the authority to allocate the costs of the arbitration process among the Parties, but will only have the authority to allocate attorneys' fees if a particular law permits them to do so. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties. The Parties agree that failure or refusal of a Party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that Party to present evidence or cross-examine witness. In such event, the other Party shall be required to present evidence and legal argument as the arbitrator(s) may require for the making of an award. Such waiver shall not allow for a default judgment against the non-paying Party in the absence of evidence presented as provided for above. Notwithstanding the foregoing, the Parties agree that each Party shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
e. Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly formed, duly organized, validly existing, and in good standing under the laws of the state of its corporate domicile and is authorized to do business in each jurisdiction in which it conducts its business; (ii) it has the full legal right, power, and authority to enter into and perform the Contract and that all requisite corporate and other approvals have been obtained; and (iii) there are no pending or threatened actions or proceedings or government investigations against it that may affect its performance of the Contract.
f. Assignment. Neither Party will transfer, assign, or sublicense any of its rights, obligations or interests under these terms and conditions without the other Party’s prior written consent.
g. Independent Contractors. The Parties are independent contractors to each other with respect to each and every aspect of the Contract. Neither Party shall incur any obligations for or in the name of the other Party, or have the authority to bind or obligate the other Party.
h. Severability. If any provision or portion of the Contract shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
i. Headings; Construction. The headings/captions appearing in the Contract have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain.
j. Survival. Each term and provision of the Contract that should by its sense and context survive any termination or expiration of the Contract, shall so survive regardless of the cause and even if resulting from the material breach of either Party to the Contract. Notwithstanding the foregoing, Sections 5, 6, 7, 8, 11, 12, and 13, together with any outstanding payment obligation, shall survive termination of the Contract.
k. Notice. All notices, requests, claims, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Contract or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier, facsimile, or certified or registered mail. Except as otherwise provided in the Contract, a Notice is effective only upon receipt of the receiving party.
l. Waiver. No waiver of any term or right in the Contract shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision of the Contract shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of the Contract thereafter.
m. Entire Contract; Modification. The Contract (including any attached Exhibits as applicable) is the entire contract between the Parties with respect to the subject matter hereof and supersedes any prior contract or communications between the Parties, whether written, oral, electronic, or otherwise. No change, modification, amendment, or addition of or to the Contract or any part thereof shall be valid unless in writing and signed by an authorized representative of the Parties. Each Party hereto has received independent legal advice regarding the Contract and their respective rights and obligations set forth herein. The Parties acknowledge and agree that they are not relying upon any representations or statements made by the other Party or the other Party’s employees, agents, representatives or attorneys regarding the Contract, except to the extent such representations are expressly set forth in the Contract.
Last updated: February 2024
