IDENTIFICATION OF PARTIES; ACCEPTANCE OF TERMS

All goods, equipment, products and services (hereinafter collectively called “Goods”) furnished by B.G.R., Inc., an Ohio corporation (“BGR”) are governed by these Terms and Conditions of Sale (“Terms”). As used herein “Customer” refers to the party who submits a Purchase Order to BGR and “Purchase Order” means the purchase order, electronic order, or any other order submitted by Customer. BGR agrees to supply the Goods only upon the Terms. BGR’s acceptance of Customer’s Purchase Order and its agreement to deliver Goods is expressly made conditional on Customer’s acceptance of the Terms. In the event Customer’s Purchase Order includes terms that differ from or are in addition to the Terms, such terms are expressly rejected by BGR and are null and void. Customer and BGR agree and it is their intent that the battle of the forms section of UCC § 2-207 (ORC §1302.10) shall not apply, and that the Terms govern.

PAYMENT TERMS; MODIFICATIONS

Unless otherwise agreed in writing, payment terms are net 30 days on approved open accounts from date of invoice. In addition to open accounts, we also accept most major credit cards. BGR has multiple payment/billing options. If an open account Customer fails to make full payment within the agreed upon time period from date of invoice, BGR may exercise any or all rights and remedies available under law, equity, or as provided herein, including, without limitation, assessing a monthly service charge for late payments and requiring immediate and full payment of all outstanding amounts due on Customer’s account. Customer will be liable for all costs and expenses BGR incurs in enforcing its rights hereunder.

BGR makes available certain payment processes through which Customer can provide payment information to BGR (our "Authorized Payment Processes"). Examples of our Authorized Payment Processes include providing payment information by telephone, through our website checkout page or using an established Electronic Data Interchange.

Quoted prices may include costs of imported products which are based upon quotes from suppliers. Such products may be subject to tariffs, duties, and other governmental charges (“Governmental Charges”) imposed from time to time. Although BGR will work with our suppliers to mitigate the impact of additional costs, pricing is subject to adjustments made by our suppliers in response to Governmental Charges or otherwise. BGR will provide prompt notice of any such adjustment.

CANCELLATION; CUSTOM GOODS

Customer may not cancel an order except with BGR’s express written consent and upon terms that compensate BGR against all direct, incidental and consequential losses incurred, or damages suffered, as a result of BGR’s commencement of performance and Customer’s subsequent cancellation. BGR may cancel any order if Customer has failed to make required payments, or if BGR, in its sole discretion, deems itself financially insecure in relation to Customer’s ability to pay for the Goods.

Absent a written agreement between Customer and BGR providing otherwise, if at Customer’s request BGR stocks any products which are custom in accordance with the specifications of Customer (“Custom Goods”), Customer agrees that it will purchase such Custom Goods within ninety (90) days of BGR’s procurement of such Custom Goods for Customer.

DELIVERY; TITLE; SECURITY OF INTEREST

All delivery dates are approximate and BGR shall not be responsible for damages of any kind resulting from any delay. Unless otherwise agreed to in writing, all deliveries of Goods are FOB point of shipment, freight prepaid or freight collect to destination. Title and risk of loss transfers to Customer upon delivery to the carrier. Customer agrees to accept partial or pro rata deliveries as full performance in the event BGR cannot fulfill an entire order. To secure payment for all monies due from Customer to BGR, BGR shall retain a security interest in the Goods delivered to Customer and the Terms shall be deemed a security agreement under the Uniform Commercial Code as adopted in the State of Ohio. Customer authorizes BGR as its attorney-in-fact to execute and file on Customer’s behalf all documents BGR deems necessary to perfect its security interest in the Goods delivered to Customer.

ACCEPTANCE; RETURNS

Goods other than equipment will be deemed accepted by Customer within thirty (30) business days after receipt by Customer, unless rightfully rejected within such period by written notice to BGR setting forth all of the defects or damages upon which the rejection is based. Equipment will be deemed to have been accepted within five (5) businesses days on the aforementioned terms. Returns for Goods other than equipment are subject to BGR’s Return Policy and prior authorization. Equipment returns are generally prohibited unless agreed to in writing by BGR.

WARRANTIES

Customer acknowledges that BGR is not the manufacturer of any Goods purchased hereunder. Any warranty with respect to the Goods must come from the manufacturer. BGR will provide reasonable assistance to Customer in obtaining the benefits of such warranties. BGR expressly disclaims all warranties either express or implied, related to the Goods including, without limitation, any warranty of merchantability or fitness for a particular purpose, or warranty of non-infringement.

FORCE MAJEURE

Customer acknowledges that delivery dates are approximate. BGR shall not be liable or responsible for non-shipment of the Goods or delays in delivery or performance, or any damages suffered by Customer by reason of such delay, and shall be excused from performance, when such non-shipment or delay is directly or indirectly caused by, or in any manner arises from, causes beyond BGR’s reasonable control, including, but not limited to, acts of God; acts of Customer; strikes or other labor disturbances; embargoes; wars; acts of terrorism; riots; delays in transportation; pandemics; epidemics; any existing or future laws or acts of any government (including specifically, but not exclusively, any orders, rules or regulations issued by any official or agency of any such government) affecting the conduct of BGR’s business; floods; fires; accidents; a contingency the non-occurrence of which was a basic assumption on which the sale of Goods was made; and/or any other cause or causes that renders such performance commercially impracticable.

LIMITATION OF LIABILITY; INDEMNIFICATION

BGR will not be liable to Customer for any indirect, special, incidental, or consequential damages, whether based on contract, tort or any other legal theory arising out of, or relating to the sale of Goods by BGR to Customer (including the Terms), and BGR’s total liability to Customer is limited to the replacement value of the Goods. Customer agrees to defend, indemnify and hold harmless BGR, its officers, directors, and employees, from all claims for bodily injury, death and property damage that may arise out of or in connection with the sale, shipment, delivery, installation or use of the Goods, including reasonable attorneys’ fees, costs and expenses, caused by Customer, its employees or agents.

ADDITIONAL TERMS AND CONDITIONS

Except as otherwise agreed in writing, the Terms constitutes the entire agreement between Customer and BGR with respect to the Goods. No modifications shall be binding upon BGR unless in writing signed by BGR’s duly authorized representative. These Terms are governed by the laws of the State of Ohio, without giving effect to its principles of conflicts of law. Customer and BGR each consent to the exclusive personal jurisdiction of the state or federal courts located in Hamilton County, Ohio over any action arising out of or relating to the sale of Goods by BGR to Customer (including the Terms) and Customer further agrees that any such action must be commenced within one (1) year after the cause of action has accrued. BGR shall be entitled to reimbursement of all costs and expenses, including reasonable attorneys’ fees and other litigation expenses, from Customer relating to any lawsuit or other proceeding arising from or relating to the sale of Goods by BGR to Customer (including the Terms) or any agreement entered hereafter, in which BGR prevails.