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terms and conditions under which Bell Microproducts sells products to you

orders

Unless you and Bell Microproducts Inc., or one of its subsidiary companies, (hereafter “we”, “us”, etc.) have executed a separate sales agreement, then, unless such separate agreement is referenced in your order, these terms and conditions will govern our sale of products to you and by placing an order with us you agree to be bound by these terms with regard to that order. The preprinted terms of any documents, such as purchase orders, that you may submit to us in conjunction with an order for products will not alter, change or add to these terms, regardless of how we acknowledge or accept your order. All orders are subject to acceptance by us, and once accepted, an order cannot be cancelled, modified or rescheduled without our consent.

availability

Availability of our products is subject to change without notice. If a product is not in stock when you place your order, we will do our best to advise you when the product will be available.

prices

Prices shall be our published prices for the products or as otherwise quoted by us to you. Unless otherwise specified price quotes are good for seven (7) days. We reserve the right to increase the price for any product on at least thirty (30) days written notice to you prior to scheduled shipment. We are not responsible for any errors on our website. In the event a product is listed at an incorrect price due to typographical, photographic, or technical error or error in pricing information received from our suppliers, we reserve the right to refuse or cancel any orders placed for that product listed at the incorrect price.

taxes

All prices are net of any sales, use, excise, value added and similar taxes imposed by any governmental authority regardless of how denominated; and any international shipping charges, broker’s fees, consular fees and customs duties, which shall be your responsibility. You shall pay all such taxes or charges or provide us with a tax or levy exemption certificate acceptable to the taxing or levying authority. In the event we are required to pay any taxes or other charges for which you are responsible you shall promptly repay these to us upon receipt of our invoice.

payment terms

We accept payment by VISA, MasterCard, Discover, American Express, money order, wire transfer and cashiers check. We will not charge your credit card for a product until the product is shipped. We will accept your purchase order or payment by other means only upon approved credit. Unless we have agreed otherwise, payments on credit shall be due thirty (30) days from the date of our invoice. You agree not to withhold or offset any amount owing to us. In addition to our other rights, we reserve the right to cancel or suspend delivery of all or part of an order if you are delinquent in any payments owing to us. We shall retain a purchase money security interest in any products delivered to you until we have received payment in full. As a condition to extending you credit terms you consent to the filing of financing statements covering such products and their proceeds that we deem necessary to perfect our security interest. You agree to pay a late payment charge of 1½ percent per month, but not in excess of the lawful maximum, on any past due balance.

shipment

All products are shipped FOB our shipping point. You will be responsible for any loss or damage to a product once we give it to the common carrier for delivery to you. Unless you request a specific means of delivery which we are able to accommodate, we will select the common carrier. You are responsible for transportation and related shipping costs, the charges for which will be separately stated on our invoice to you. Shipping dates are approximate. We shall make every reasonable effort to meet your specified delivery date, but in no case shall we be liable to you if we are unable to meet such date. We may make deliveries in installments. Any delay in any one installment will not give you the right to cancel that or any other installment. You must submit any claim for shortages to us within ten days of the arrival of the products at your facility.

returns

You must first receive a Return Material Authorization (RMA) from us before completing a product return regardless of the reason for the return. This applies to all product returns permitted under this agreement. We may, but will not be obligated to, accept a return without the proper RMA. Unauthorized returns will be reshipped to you at your expense. We also reserve the right to impose reasonable handling charges in the event we either accept or reject an unauthorized return.

acceptance

It is your responsibility to inspect the products and notify us if you are not accepting them. You must promptly tell us specifically why you are rejecting the products and why you believe they are non-conforming. We will only accept properly rejected products pursuant to an RMA within thirty (30) days of their shipment to you. At our discretion, we will either exchange or repair the non-conforming products. Returned products must be in their original shipping cartons complete with all packing materials and shall be returned to our designated return location freight prepaid. The original manufacturer’s warranty will define your rights with respect to any products found to be defective beyond this thirty day period.

warranty

We agree to transfer to you, to the extent we are permitted to do so, any warranties that we have received from our suppliers or manufacturers with respect to the products. In that case we will have no product warranty obligations to you. As an accommodation to you, we will, in certain cases, provide reasonable assistance in the processing of product returns for which we have no warranty obligations hereunder. Where a product is warranted, but we are not permitted to transfer the warranty to you, we will warrant that upon delivery to you, the products purchased will conform to the applicable manufacturer’s specifications for such products under the same terms as warranted by the manufacturer to us. Except for this limited warranty which we make solely to you and to the extent permitted by law, WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR RESPECTING NON-INFRINGEMENT. Our warranty obligations with respect to products and your exclusive rights under our warranty are limited, at our option, to repair or replace the products pursuant to the Return Material Authorization procedure described above, or to refund the purchase price paid by you for the affected products. To the extent we may do so, we also agree to transfer the benefit of any indemnities we have received from the manufacturer or supplier of the products respecting intellectual property infringement. We, however, have no liability or obligation to indemnify you against any claims for intellectual property infringement.

reselling by you

We are not granting you further distribution rights. If you are reselling the products or incorporating them into your own products for sale to your customers, you are responsible for acquiring all authorizations that the manufacturer of the products may have independently established as being necessary to be an authorized reseller of the products. You shall be solely responsible for providing support to your resellers or customers. Except for claims for personal injury or damage to real or tangible personal property caused by our fault or negligence, you agree to indemnify and hold us harmless from any claims asserted by a third party, regardless of the theory under which such claim is asserted, arising out of the resale of the products by you. Also, you are not authorized to use any of our trademarks or trade names or those of our manufacturers or suppliers without ours or their consents, as the case may be.

unauthorized use of products

The products sold by us are not intended or authorized for use with any life saving or life sustaining systems, nuclear facilities or for any other real-time application in which failure of the products could create a situation where personal injury or death may occur. You agree that you will not to use or knowingly sell the products to your customers who intend to use the products in any such unauthorized applications. We and our suppliers shall have no liability when products are used in conjunction with such applications.

limitation of liability

NEITHER OF US SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR REVENUE, LOSS OF DATA, PROCUREMENT COSTS, OR BUSINESS INTERRUPTION COSTS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT FOR CLAIMS FOR PERSONAL INJURY OR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY DAMAGES IN EXCESS OF THE PURCHASE PRICE OF THE PRODUCTS GIVING RISE TO SUCH CLAIM REGARDLESS OF THE THEORY UNDER WHICH SUCH CLAIM IS ASSERTED.

The collective limitations on our liability under this agreement apply also to our suppliers who are intended beneficiaries of these limitations.

licensed material

If we are delivering software or other licensed materials (“Licensed Materials”) to you as part of an order, then the possession, use and further distribution of such Licensed Materials by you are subject to the terms of the license agreements accompanying such Licensed Materials. We are not the licensor of Licensed Materials and your license rights to the Licensed Materials are between you and our suppliers or their licensors. Nothing in these terms shall be construed as granting you any rights to Licensed Materials inconsistent with the terms of any such license agreements.

export control

You agree not to export or re-export any product or technical data except in full compliance with the export control laws and regulations of the United States government, its departments and agencies, or import or re-export any product or technical data except in full compliance of the laws of the jurisdiction into which, or from which, such product or technical data is being imported or re-exported.

force majeure

Except for payment obligations, neither of us shall be liable for any failure to perform due to causes beyond our reasonable control, respectively. In cases of material shortages we reserve the right to allocate the delivery of affected materials on a pro rata basis. The time for performance shall be extended by the period of the force majeure.

independent contractors

Neither of us shall be deemed to be the agent or legal representative of the other for any purpose whatsoever. We are independent contractors and neither of us shall represent or hold ourselves out in any other capacity.

compliance with laws

Each of us agrees to comply with all laws and regulations applicable to our respective performance under this agreement and in the conduct of our business operations and to be responsible for obtaining any approvals or licenses necessary to maintain such compliance.

assignment

You may not assign this agreement, by operation of law or otherwise, without our prior written consent. Any assignment attempted in violation of this provision shall be void and of no legal effect.

governing law

These terms and conditions shall be governed and construed in accordance with the laws of the state of California excluding its choice of law provisions. The United Nations Convention for the International Sale of Goods shall not apply.

arbitration

We agree to attempt to resolve any disputes amicably through our respective representatives. If, after sixty (60) days we are unable to do so, then we each agree that any claim or controversy of any sort relating to our agreement shall be determined by arbitration in San Jose, California, before one arbitrator. At the option of the first to commence an arbitration, the arbitration shall be administered either by JAMS pursuant to its Streamlined Arbitration Rules and Procedures, or by the American Arbitration Association pursuant to its Commercial Arbitration Rules. The arbitrator shall have no power to add to, delete from or modify this Agreement. Each of us shall have the right to conduct discovery to which we would be entitled had the dispute been resolved in a state court of general jurisdiction in California. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude either of us from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator may, as part of the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party.

entire agreement

These terms and conditions and the transaction specific terms of any order accepted by us represent our entire agreement with respect to your order. No modification or amendment or waiver of rights will be effective except in a written document signed by both of us. Waiver of any breach or default will not constitute a waiver of any other right hereunder or any subsequent breach or default. We reserve the right to alter or change these terms and conditions at any time with respect to future orders that you may place with us.