Terms & Conditions - BergesenAERO

Bergsen Metal’s Terms and Conditions

By accessing and using a website, mobile application, or any digital platform of, or by entering into a commercial transaction with or utilizing any other service of Bergsen Metal, you acknowledge that you have read, understand, and expressly agree to be bound by these Terms and Conditions. These Terms and Conditions are incorporated by reference into all Bergsen Metal Orders (including sales, quotes, purchase orders, and any other transaction carried out by Bergsen Metal). Bergsen Metal reserves the right to modify these Terms and Conditions at any time.

The sale of products and services by Bergsen Metal are made expressly subject to these Terms and Conditions. No amendments or additional terms and conditions, including preprinted terms and conditions included in Customer’s documentation, will be accepted or deemed to modify these Terms and Conditions unless they are agreed to in writing and signed by Bergsen Metal.

DEFINITIONS

For purposes of these Terms and Conditions, the following definitions apply:

“Article” means any material, part, component, process, or appliance sold or provided by Bergsen Metal.

“Bergsen Metal” means Bergsen Metal and all its business names, affiliates, divisions, and subsidiaries; including, but not limited to, the following sales sites: BergsenAero

“Customer” means any person or entity that is purchasing or receiving any Article from Bergsen Metal.

“End User Certificate” means a document provided by Bergsen Metal to the Customer to gather information necessary to ensure compliance with applicable laws and regulations.

“Order” means any sales transactions, accepted quotes, purchase orders, confirmations, or other documentation or communication between Bergsen Metal and Customer causing Bergsen Metal to sell, provide, or otherwise convey any Article or any service to the Customer.

“Substitute Article” means an Article identified in an Illustrated Parts Catalogue, Illustrated Parts List, or similar document that is a direct substitute for an Article that is the subject of an Order.

“Terms and Conditions” refers to these Bergsen Metal Terms and Conditions.

“Value-added” means any modifications, alterations, adjustments, improvements, or other work performed on an Article at the request of the Customer and in accordance with Customer instructions.

ORDERS

All Orders are fulfilled from the United States and subject to quantities of stock on hand. At its discretion, and consistent with its compliance obligations and these Terms and Conditions, Bergsen Metal may source Articles from outside the United States on an as-needed basis. All Orders are non-cancelable and non-returnable unless Customer is issued a return material authorization (“RMA”) in writing by Bergsen Metal. Articles may not be returned without an RMA issued by Bergsen Metal. Customer may not cancel or reschedule Orders without Bergsen Metal’s written consent.

CANCELED ORDERS

Customers will be subject to a cancellation fee for all canceled Orders, which may be waived at Bergsen Metal’s discretion. The cancellation fee is intended to reflect and protect Bergsen Metal’s reasonably expected damages and profits. Restocking fees will be determined in Bergsen Metal’s discretion and shall be a minimum of 50% of the total cost of the Order unless otherwise determined by Bergsen Metal. Restocking fees may exceed 50% of the total cost of the Order depending upon costs incurred by Bergsen Metal. Confirmed Orders canceled as a result of Customer identifying and contacting Bergsen Metal’s suppliers will be subject to a 100% cancellation fee. Customer agrees that the cancellation fees herein described are a reasonable estimation of Bergsen Metal’s anticipated profits and other costs and does not constitute a penalty.

Bergsen Metal may, in its discretion, require payment of a deposit prior to shipment of Articles. In the event of Order cancellation Bergsen Metal will deduct the cancellation fee—as determined in accordance with this section—from the deposit and refund the remainder of the deposit, if any, to the Customer.

PRICES

Quoted prices remain valid for 48 hours from the time the quote is issued, unless otherwise stated in writing. In the event prices to Bergsen Metal increase, or in the event of cost increases due to circumstances beyond its reasonable control, Bergsen Metal may increase prices to cover additional costs of Orders or cancel Orders at its discretion. Bergsen Metal will notify Customer of any such price increases and Customer will have 48 hours to accept revised price of Articles. Failure by Customer to respond to price increases within 48 hours will be deemed an Order cancellation. Orders cancelled or deemed cancelled as a result of price increases will be issued a full refund within 10 business days of provision by Customer to Bergsen Metal of necessary banking information to issue refund.

Prices are for Articles only and do not include taxes, impositions, or any other charges, fees, shipping costs or duties imposed by any intermediary or government authority, which shall be the responsibility of Customer.

LEAD TIMES

Quoted lead times are based on information provided to Bergsen Metal by its supplier sources. Quoted lead times are provided as an estimate only. Bergsen Metal will make every effort to provide Articles within the quoted lead times, however, lead times are subject to change without notice. All lead times shall be subject to the LIMITATION OF LIABILITY provisions of these Terms & Conditions.

TERMS OF PAYMENT

Payment of the total invoice amount, without offset or deduction, is due 30 days from the invoice date. Bergsen Metal reserves the right to charge interest on any past-due invoices from the payment due date to the date of payment (at 1% per month), plus reasonable attorney fees and collection costs. Bergsen Metal may change the terms of Customer’s credit at any time. In the event of past-due invoices, Bergsen Metal may, at its discretion, apply payments to oldest past-due accounts or Orders first.

Bergsen Metal, at its discretion, may require pre-payment to secure performance of Orders. In the event Bergsen Metal cannot satisfy Orders for which pre-payment was made in accordance with these Terms & Conditions, Customer will be entitled to a full refund of all pre-paid funds.

DELIVERY AND TITLE

Risk of Loss shall pass to Customer when the Article is delivered to the carrier who will be responsible for carriage from Bergsen Metal to the Customer, or when the Article is claimed by the Customer in the event the Article is picked up at Bergsen Metal by the Customer or the Customer’s agent. Carrier and method of payment to carrier shall be determined by Bergsen Metal and Customer during negotiation of Order.

Delivery dates are estimates only. Bergsen Metal is not liable for delays in delivery as a result of export compliance processes, quality protocols, shipping delays or interruptions, or circumstances beyond Bergsen Metal’s control. Bergsen Metal reserves the right to make partial shipments in fulfilment of an Order, and Customer will accept delivery and pay for the Articles delivered on a pro rata basis in accordance with the Order and these Terms and Conditions. Bergsen Metal is entitled to complete shipment of a full Order, regardless of any delays in whole or in part of the Order. A delayed delivery of any part of an Order does not entitle Customer to cancel or delay other deliveries arising out of the same Order unless authorized by Bergsen Metal in writing.

In the event that an Article is lost, stolen or destroyed before Risk of Loss has passed, the Customer must notify Bergsen Metal, in writing, within 5 days of the loss or else the Customer waives any right to compensation and remains responsible for the purchase price. In the event that Customer provides proper notice of loss, Bergsen Metal shall

(1) provide to Customer a replacement Article meeting the same standards as the original Article (excluding contract terms related to expected arrival), or (2) make a prompt refund to Customer of the purchase price with respect to the lost or stolen Article.

The choice of remedy will be at Bergsen Metal’s discretion; if Bergsen Metal notifies the customer that Bergsen Metal will provide to Customer a replacement Article, then Customer shall have 30 days from the date on which notification is sent to place a purchase order for the replacement article or else this right to a remedy shall be waived. In all events, Customer is expected to insure its articles against loss and if Customer fails to insure articles against loss then Customer does so at its own peril.

INSPECTION, ACCEPTANCE, AND RETURN OF ARTICLES

Customer shall have 7 calendar days after delivery in which to inspect the Article. Customer must notify Bergsen Metal of any discrepancies found during this inspection period. In the event that Customer discovers discrepancies during inspection, Customer must notify Bergsen Metal in writing during the inspection period. After the 7th day, Customer is deemed to have accepted the Articles and may not revoke acceptance.

In the event that a discrepancy is identified in writing to Bergsen Metal, Bergsen Metal will review the discrepancy and may issue a return material authorization (“RMA”). Customer cannot return Articles without an RMA number issued by Bergsen Metal. RMAs are only issued in cases in which Articles do not meet the condition identified in the documentation. Under no circumstances will a RMA issue for reasons related to the price of Articles or due to Customer error in ordering Articles.

RMAs shall remain valid only for the time specified on the RMA—in no case to exceed 30 days—and Articles must be returned to Bergsen Metal within the specified time. After the specified time period, the RMA will expire and returns will not be accepted. Articles will remain the property of the Customer if not received in the time specified in the RMA or if Articles are not in the same condition as sold by Bergsen Metal.

In response to a written notification of discrepancy under the inspection provisions of these Terms and Conditions, Bergsen Metal may either reject the claim if the claim is not authorized under the inspection provisions of these Terms and Conditions, or issue an RMA and accept the return of the Article (in such an event, the cost of return shipping shall be borne by Customer). For low-cost articles, Bergsen Metal may, at its discretion, issue a material mutilation authorization (“MMA”). Customers issued an MMA must provide to Bergsen Metal within 30 days of issuance a written certification certifying mutilation or destruction of discrepant articles.

Returned Articles must be in the original shipping packaging or equivalent thereof and must be returned in the original manufacturer’s packaging if shipped in the same. Returned Articles must be accompanied by all provided documentation, including but not limited to manufacturers Certificates of Conformity (“C of C”), FAA Form 8130-3 or equivalent, and all traceability documentation. Shipping charges and fees, including insurance as specified in the RMA, will be paid by Customer. Customer bears the Risk of Loss of the Article until received by Bergsen Metal. Returned Articles must be shipped signature upon delivery. In the event Returned Articles are shipped without signature upon delivery, Bergsen Metal reserves the right to cancel the RMA. Bergsen Metal bears no responsibility for returned Articles delivered to Bergsen Metal without a signature of receipt. Bergsen Metal bears no responsibility for returned Articles shipped without a valid RMA.

Customer must pay any restocking charges. Articles without a valid RMA will be returned to Customer at Customer’s expense. In the event Articles cannot be returned to Customer, Customer will have 90 days to arrange for the recovery of the Articles. If Customer does not arrange for recovery of the Articles within 90 days, the Articles will be deemed to be forfeited and returned to Bergsen Metal stock and Customer will not be entitled to a refund.

RESTOCKING FEES

Customers will be subject to a restocking fee for all returned Articles. The restocking fee is inclusive of Bergsen Metal’s costs, including but not limited to time, resource and human capital allocation, and use. Restocking fees will be determined in Bergsen Metal’s discretion and shall be a minimum of 25% of the total cost of the Order unless otherwise determined by Bergsen Metal. Restocking fees may exceed 25% of the total cost of the Order depending upon costs incurred by Bergsen Metal. Returns resulting from failure to provide accurate end-user information or providing misleading information on Orders for Articles destined outside of the United States will result in a restocking fee of 50% of the total cost of the Order. Articles returned as a result of Customer identifying and contacting Bergsen Metal’s suppliers will be subject to a 100% restocking fee.

Bergsen Metal may deduct the restocking fee as determined by this section from any deposit or other monies paid to Bergsen Metal by Customer.

ARTICLE INFORMATION

Article information, including information related to an Article’s specifications, export/import control classifications, hazardous materials and dangerous goods information, uses, or conformance with legal or other requirements, is obtained by Bergsen Metal from its suppliers or other sources. Bergsen Metal provides such information on an “AS IS” basis. All information is subject to change without notice and Bergsen Metal is not responsible for errors or omissions in Article information.

SUBSTITUTION, CONDITION, AND PMA

Although Bergsen Metal will make every effort to provide Articles in accordance with the original Order, Bergsen Metal reserves the right to make Article substitutions, provided the Substitute Articles have the same form, fit, and function as the Articles replaced. In the event of a Substitute Article, Bergsen Metal will notify Customer of the substitution, and Customer will have the option to accept the Substitute Article or cancel that part of the Order pertaining only to the Article to be substituted. Orders cancelled due to Substitute Articles will be entitled to a full refund only for those articles substituted; accepted Substitute Articles will be shipped upon receipt of written confirmation of acceptance of Substitute Article.

In the event that Bergsen Metal is only able to provide an Article that is of a different condition than originally quoted (e.g., New Surplus condition Article is no longer available but Overhauled condition Article is available), Bergsen Metal will notify Customer of the condition change and provide a new quote to the Customer. Customer will have the option to accept the Article at the new quote price or cancel the Order. Orders cancelled due to condition changes of Articles will be entitled to a full refund only for those articles for which a changed condition Article resulted in a new price quote; accepted Articles will be shipped upon receipt of written confirmation of acceptance of the new quote price for the changed condition Article. Any difference in price between the originally quoted Article and the new quote price for the changed condition Article will be refunded to Customer or applied to outstanding Customer account balances at Bergsen Metal’s discretion.

In the event that an Article in an Order is no longer available and Bergsen Metal is able to identify a Parts Manufacturer Approval (“PMA”) alternative part, Bergsen Metal will notify Customer of the PMA alternative and provide a new quote to the Customer. Customer will have the option to accept the Article at the new quote price or cancel the Order. Orders cancelled due to PMA Articles will be entitled to a full refund only for those articles for which a PMA Article resulted in a new price quote; accepted Articles will be shipped upon receipt of written confirmation of acceptance of the new quote price for the PMA Article. Any difference in price between the originally quoted Article and the new quote price for the PMA Article will be refunded to Customer or applied to outstanding Customer account balances at Bergsen Metal’s discretion.

Bergsen Metal EXPLICITY DISCLAIMS ANY WARRANTY AS TO FITNESS FOR A PARTICULAR PURPOSE OR INTERCHANGEABILITY OF PART NUMBERS AND CONDITIONS AND IT IS THE INSTALLER’S RESPONSIBILITY TO CONFIRM THAT THE PART PROVIDED IS SUITABLE FOR ITS PURPOSE AND IS INSTALLED IN ACCORDANCE WITH ALL APPLICABLE CIVIL AVIATION REGULATIONS.

WARRANTY

Bergsen Metal warrants that Articles will be in the condition identified in the documentation. Bergsen Metal will transfer to Customer any product warranties and indemnities authorized by the manufacturer, including any transferable warranties and indemnities for intellectual property infringement. Bergsen Metal warrants that Value-added work performed by Bergsen Metal on Articles will conform to Customer’s specifications. Bergsen Metal makes no warranties or representations that Value-added work performed to the Customer’s specifications will retain or enhance the ARTICLE’s functionality, merchantability, or fitness for a particular purpose.

If Articles do not meet the condition identified in the documentation or if Value-added work performed by Bergsen Metal does not meet Customer’s specifications, Bergsen Metal has the option to:

1) Repair the Articles;

2) Replace the Articles at no cost to Customer; or

3) Refund Customer’s purchase price.

Customer must return non-conforming Articles to Bergsen Metal, along with acceptable proof of purchase in accordance with Inspection, Acceptance, and Return of Articles provisions in these Terms and Conditions.

Bergsen Metal HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, SPECIFICALLY INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

Bergsen Metal EXPRESSLY AND SPECIFICALLY DISCLAIMS WARRANTY OF GOOD TITLE.

Bergsen Metal MAKES NO REPRESENTATION AS TO THE ACCURACY OR COMPLETENESS OF THE ARTICLE INFORMATION, AND DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, AND LIABILITIES UNDER ANY THEORY WITH RESPECT TO THE ARTICLE INFORMATION, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Bergsen Metal RECOMMENDS THAT CUSTOMER VALIDATE ANY ARTICLE INFORMATION BEFORE USING OR ACTING ON SUCH INFORMATION.

LIMITATION OF LIABILITY

Bergsen Metal is not liable for, and Customer is not entitled to, any indirect, special, incidental, consequential, or punitive damages (including, but not limited to, loss of profits or revenue, loss of data, loss of use, rework, manufacturing expense, damage to higher-level assemblies, injury to reputation, loss of customers, costs, or attorneys’ fees) arising out of this transaction. Customer’s recovery from Bergsen Metal for any direct damages will not exceed the price of the Article at issue.

Bergsen Metal is not liable, and Customer is not entitled to, any indirect, special, incidental, consequential, or punitive damages (including, but not limited to, loss of profits or revenue, loss of data, loss of use, rework, manufacturing expense, damage to higher-level assemblies, injury to reputation, loss of customers, costs, or attorneys’ fees) for failure of Bergsen Metal to fulfill its obligations for any Order or for delays in delivery due to causes beyond its reasonable control, including but not limited to acts of God, acts or omissions of the Customer, man-made or natural disasters, epidemic or medical crises, materials shortages, strikes, acts of terrorism, delays in transportation, delays of subcontractors or suppliers, or inability to obtain labor or materials through its regular sources.

INDEMNIFICATION

Customer agrees to defend, hold harmless, and indemnify Bergsen Metal, its affiliated companies, their directors, officers, employees, and agents from and against any and all present and future liabilities, damages, losses, demands, fines, penalties, and claims of any kind whatsoever (including all costs, expenses, and reasonable attorney’s fees incidental thereto) which are or may be suffered by, accrue against, be charged to, or be recoverable by reason of any loss or damage to property or injuries or death of any person arising from the Article that is the subject of these Terms and Conditions.

USE OF ARTICLES

Bergsen Metal is not liable for the use of Articles in any way, including use as intended by the original manufacturer. Bergsen Metal is not liable for any failure arising from the use of Articles in any way, including use as intended by the original manufacturer’s specifications, resulting in personal injury, loss of life, or catastrophic property damage. If Customer uses or sells the Articles, Customer acknowledges that such use or sale is at Customer’s sole risk. Customer will indemnify, defend, and hold harmless Bergsen Metal from and against any and all liabilities and costs arising out of or in connection with such use or sale. Bergsen Metal will not be held responsible or liable for any damages resulting from any design, manufacturing, or failure to warn defects inherent IN THE ARTICLE AND/OR attributable to the original manufacturer or its suppliers.

Bergsen Metal is not liable for personal injury, loss of life, or catastrophic property damage arising from AN ARTICLE’s design defect, manufacturing defect, or failure to warn defect. In the event of personal injury, loss of life or catastrophic property damage arising from AN ARTICLE defect, Customer will indemnify, defend, and hold harmless Bergsen Metal from and against any and all liabilities and costs arising out of or in connection with such defect.

COMPLIANCE

The Customer acknowledges that all international orders will be processed through Bergsen Metal’s export compliance system prior to shipment and in accordance with the Compliance requirements of these Terms and Conditions. Customer failure to provide complete end-user information as required by Bergsen Metal’s End User Certificate may result in Order delay or cancellation at Bergsen Metal’s discretion. End User Certificate information that cannot reasonably be ascertained or is not necessary to fulfilling Bergsen Metal’s particular compliance obligations may be waived at Bergsen Metal’s discretion. Bergsen Metal RESERVES THE RIGHT TO CANCEL ANY ORDER AT ANY TIME IF THE ORDER DOES NOT COMPLY WITH AND/OR CANNOT BE MADE TO COMPLY WITH UNITED STATES EXPORT LAWS AND REGULATIONS. All other terms and conditions of Bergsen Metal remain in full effect at any time of cancellation.

The Customer warrants that all Articles will be used in compliance with U.S. laws. The Customer warrants that Articles will not be subsequently used nor shipped in violation of U.S. laws, including U.S. export laws and U.S. hazardous materials laws. The Customer warrants that Articles will not be subsequently used nor shipped in violation of the laws of any jurisdiction through which or into which the Articles are shipped.

The Customer assumes full responsibility for compliance with any United States export laws and hazardous materials laws prior to any export or shipment from or within the United States of Articles received from Bergsen Metal and agrees to hold harmless Bergsen Metal for any violations of laws or regulations committed by Customer or its agents.

DISPUTES

Any claim, dispute, or controversy between Customer and Bergsen Metal relating in any way to the use of Bergsen Metal’s websites, the terms of this Agreement, Orders conducted by Bergsen Metal, or Articles distributed or serviced by Bergsen Metal will be resolved initially through non-binding arbitration. Arbitration will be administered by the American Arbitration Association (AAA) in accordance with its Commercial Arbitration Rules. If the AAA should become unavailable, an alternate forum will be chosen at Bergsen Metal’s discretion. Bergsen Metal reserves the right to select a panel of one or more knowledgeable and impartial arbitrators and judgment on the award may be entered in any court having jurisdiction thereof. If either party rejects the determination of the arbitrator, the dispute will be subject to the Jurisdiction provisions of these Terms and Conditions.

JURISDICTION

All agreements made by Bergsen Metal are made in California and shall be interpreted under the laws of California, not including the state’s conflict of laws provisions. Both parties agree that any suit brought in relation to this agreement, or to enforce any clause of this agreement, shall be brought in a trial court in closest proximity to Bergsen Metal’s headquarters. Both parties agree to be subject to the personal jurisdiction and venue of that court.

GENERAL

The laws of the State of California will exclusively govern any dispute between Bergsen Metal and Customer without regard to any conflict of laws principles. The United Nations Convention for the International Sale of Goods shall not apply to any transaction between Bergsen Metal and Customer. Customer may not assign Orders without the prior written consent of Bergsen Metal. These Terms and Conditions are binding on all successors and assigns. Bergsen Metal and Customer are independent business entities and agree that Orders subject to these Terms and Conditions do not establish a joint venture or partnership. Statements or advice (technical or otherwise) if given without charge, are an accommodation to Customer and Bergsen Metal has no responsibility or liability for the content or use of such statements or advice. Bergsen Metal EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, AND LIABILITIES UNDER ANY THEORY WITH RESPECT TO SUCH STATEMENTS OR ADVICE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DUTY TO WARN, AND NONINFRINGEMENT. The failure of Bergsen Metal to object to any document, communication, or act of Customer will not be deemed a waiver of any of these Terms and Conditions. The unenforceability of any provision of these Terms and Conditions will not affect the remainder of the Terms and Conditions. Articles, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights, and/or user licenses. Customer and Bergsen Metal will comply with applicable laws and regulations. The sale of Articles and the agreement of Orders are made expressly conditional upon the acceptance of these Terms and Conditions. No amendments or additions to the Terms and Conditions of the transaction will be accepted unless they are in writing and signed by authorized representatives of Bergsen Metal and Customer. Preprinted Terms and Conditions on any Customer document and/or the failure of Bergsen Metal to object to conflicting or additional terms will not alter, diminish, or modify the provisions of these Terms and Conditions, and any such conflict of terms are hereby deemed to be resolved in favor of the Bergsen Metal Terms and Conditions.

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Website: www.bergsen.com