BDC, Inc. (“BDC”) will provide services (“Services”) and/or products (“Products”) selected by you (“Customer”). By utilizing the Services and/or accepting the Products, Customer agrees to be bound by these additional terms and conditions, as may be amended from time to time, that are incorporated into your contract.
1. Term and Termination
a. Term. For Services, the initial Term of the Agreement shall be as agreed upon and stated in the applicable BDC contract. Unless BDC or Customer provides written notice to terminate the Agreement at least 30 days prior to the end of the initial Term, the Agreement will automatically renew for successive one-year periods at the same terms and conditions.
b. Termination without cause. For Services, either Party may terminate any BDC contract without cause upon thirty (30) days prior written notice to the other Party. In such event, BDC shall upon receipt of such termination notice immediately discontinue its Services under any BDC contract, and submit a final Invoice to Customer for all Services performed and expenses incurred by BDC up through the date of termination. Customer agrees to pay such Invoice by the applicable Due Date stated on the Invoice.
c. Termination for cause. Either Party may terminate any BDC contract for cause in the event of a material breach if the breaching Party does not cure the alleged material breach within thirty (30) days of receiving notice from the non-breaching Party specifying the cause for such termination. In such event, BDC shall submit a final Invoice to Customer for all Services performed and expenses incurred by BDC up through the date of termination. Customer agrees to pay such Invoice by the applicable Due Date stated on the Invoice.
2. Independent Contractor
The relationship created by any BDC contract with Customer shall be that of independent contractor and not of employer and employee or partners. As independent contractors, the Parties shall not have, or hold themselves out as having, the power or authority to bind or create liability for the other by their intentional or negligent acts. BDC shall be solely responsible for and shall pay all its expenses incurred in connection with the performance of its Services under any applicable contract and shall not be entitled to receive any fringe benefits or other benefits of any kind provided by Customer to its employees. BDC shall be solely responsible for the payment of all taxes (including estimated taxes) payable with respect to compensation earned pursuant to any BDC contract.
These Additional Terms and Conditions apply to all Services and/or Products selected by you and provided by BDC. Any material changes to the original Services and/or Products that are requested by you and approved by BDC in writing (“Change Orders”) may result in price adjustments for such Services and/or Products.
4. Indemnification and Limitation of Liability
a. Customer shall indemnify, defend, and hold harmless BDC and its employees, officers, and directors from and against any and all third-party claims, losses, damages, costs, and expenses (including reasonable attorney’s fees) (collectively “Claims”) arising out of or alleged to have been caused by (i) Customer’s breach of any BDC contract, (ii) the use, ownership, operation, maintenance, handling, resale, transfer, storage or abandonment of any Products purchased by Customer, (iii) Customer’s failure to comply with applicable federal, state or local laws, statutes, regulations or governmental directives, including but not limited to, those which regulate the handling, transportation, storage or disposal of any material, substance or compound regulated under any environmental laws that related to any pollutant, hazardous waste, contaminant, hazardous or poisonous substance or material or (iv) Customer’s acts, omissions or negligent or willful misconduct related to any patent, copyright or trademark infringement owned by a third party.
b. BDC shall indemnify, defend and hold harmless Customer and its employees, officers and directors from all third-party Claims arising out of or alleged to have been caused by BDC’s breach of any BDC contract.
c. In no event shall either Party be liable to the other for any indirect, special, incidental, or consequential damages, including without limitation, loss profits, business, goodwill, or opportunity, for any reason whatsoever. In no event shall BDC be liable for any damages, including without limitation, indirect, incidental, special or consequential damages arising out of or in connection in any way with the sale, use or performance of any Products purchased by Customer.
d. Under all circumstances, the total liability of BDC and the Customer’s sole and executive remedy for a claim of damage to real or tangible personal property or any other claim whatsoever, including but not limited to claims based on contract, warranty, negligence or strict liability in tort, that arises out of or in connection with any BDC contract for Services and/or Products provided hereunder shall be limited to proven direct damages caused by BDC’s sole negligence in an amount not to exceed the amount paid to BDC by Customer in the three month period immediately preceding the basis for any Claim.
5. Payment Terms
a. For Products, Customer shall pay fifty percent (50%) of the purchase price prior to shipping plus the remaining fifty percent (50%) within 30 days of receipt of the Products. For Services, Customer agrees to pay the monthly service fees in advance, BDC shall provide invoices per the terms stated in the BDC contract and Customer shall timely remit full payment by the Invoice Due Date.
b. All payments owed by Customer shall be made via ACH deposit into a BDC-designated account or via a check payable and delivered to BDG at the following address: BDG Group, Attn: Accounts Payable, 1936 51st Street, NE, Cedar Rapids, IA 52402.
c. Invoices shall be emailed to Customer and payment is due on the Due Date listed on the invoice. Unless Customer reasonably disputes any invoice within three (3) business days upon receipt, BDC may assess a monthly service charge on the unpaid balance of any delinquent invoice at the lesser of one and one-half (1.5%) percent per month or the maximum lawful rate. BDC may charge a reasonable service fee as permitted by law for all returned checks.
d. Notwithstanding anything to the contrary in any BDC contract, Customer agrees that BDC reserves the right to discontinue providing its Services to the Customer in the event of nonpayment by Customer of undisputed fees for Services, provided that BDC notifies Customer in writing of such nonpayment and Customer does not cure such nonpayment within three (3) business days after such notice. In such event, BDC shall have no liability for any indirect damages, lost profits, incidental or consequential damages arising out of such discontinuance of Services.
e. Customer shall be solely liable for all expenses, including without limitation, reasonable attorney’s fees and collection costs, incurred by BDC in collecting any unpaid amounts due.
f. Customer shall be responsible for the payment of all federal, state or local sales, use, or other like taxes (but not including state or federal income taxes of BDC) of any nature that may apply from any BDC contract or Services provided by BDC.
g. Shipping of any Product ordered by Customer is a service coordinated by BDC and Customer agrees that BDC is not responsible for additional fuel surcharges and additional costs incurred due to weather or any unforeseen delays. Customer acknowledges additional charges may apply in addition to the Purchase Price and will be payable by Customer upon receipt of the Product. Products shall be delivered F.O.B. Destination, freight charges paid by BDC. Risk of loss shall pass from BDC to Customer immediately upon delivery of the Product to Customer. Customer is solely responsible for all costs associated with off-loading the Product at Customer’s designated location. Customer is responsible for any additional permits, taxes or any other associated costs required to complete delivery. Shipping and craning or other methods of up-load/off-load pricing shall be subject to fuel surcharges, and additional pricing will be submitted to Customer in advance. Craning or other methods of up-load/off-load shall be the sole responsibility of the Customer.
a. Both Parties acknowledge that each may receive Confidential or Proprietary Information of the other Party. “Confidential or Proprietary Information” is defined as (i) all trade secrets, personnel information, materials, data and documents, in whatever form, relating to either Party which is not generally available to the public which has been made available to the other and (ii) any information or materials specifically marked as “confidential” or “proprietary” by either Party. The obligations concerning Confidential or Proprietary Information shall apply to verbal information as well as specific portions of the information that are disclosed in writing or other tangible form and marked to indicate the confidential nature thereof. Notwithstanding the foregoing, “Confidential or Proprietary Information” does not include any information which: (iii) was known to the receiving party prior to receipt under any BDC contract, as demonstrated by the receiving party’s records; or (iv) was publicly known or available prior to receipt under any BDC contract, or later becomes publicly known or available through no fault of the receiving party; or (v) has been or is disclosed, without restrictions on disclosure, to the receiving party by a third party having the legal right to disclose the same or to a third party by the disclosing party; or (vi) is independently developed by an employee, consultant, or agent of the receiving party without access to the information as received under any BDC contract; or (vii) the receiving party is obligated to produce as a result of a court or administrative order, provided that the disclosing party has been given notice thereof and an opportunity to waive its rights or to seek a protective order or other appropriate remedy.
b. Covenants of Confidentiality and Nondisclosure. Upon written request of a disclosing party, the receiving party shall return all information disclosed in written or tangible form, and the receiving party shall destroy all of its copies, excerpts or notes made by it which contain any portions of the information unless otherwise provided for by the Parties. All rights and responsibilities under this Section 6 shall survive indefinitely after termination of any BDC contract. The Parties agree to use their commercially reasonable efforts to maintain the confidentiality of such material, but in no event lesser than is used by the receiving party with its own Confidential or Proprietary Information. Except as required by any BDC contract or to perform any BDC contract, both Parties will not (i) make any use of such material that is Confidential or Proprietary Information, or (ii) disclose such information to any third party without prior written authorization from the disclosing party.
Each Party shall (i) limit dissemination of Confidential or Proprietary Information received by it to those employees, agents and consultants whose duties reasonably justify the need for access to such information and who are subject to obligations of secrecy, and (ii) take appropriate measures to assure that its employees, agents and consultants who receive or have access to such information, as contemplated above, observe and comply with all of the terms and provisions of, and each such party’s obligations under, any BDC contract. No other right or license to use the information is granted under any BDC contract, except as required by any BDC contract or to perform any BDC contract.
c. Customer agrees that BDC’s methodology, service processes, trade secrets, scope of services and pricing is the sole and exclusive property of BDC, and shall treat such information as Confidential and Proprietary Information.
While any BDC contract for Services remains in effect and for a period of one (1) year, following termination for any reason, both Parties agree not to (a) induce, solicit or attempt to persuade any employee of the other Party to terminate his or her employment and/or (b) hire any employee of the other Party. Notwithstanding the foregoing, either Party may hire an employee of the other Party who applies for employment in response to a general advertisement for employment.
8. Ownership of Intellectual Property
Customer agrees that BDC shall exclusively own all rights, title and interest, including but not limited to, any copyright, patent, trademarks, trade secrets, and all other intellectual property rights in any and all records, documentation, creative Services, concepts, residual knowledge or data, written, oral or otherwise arising out of, related to or resulting from any Services provided to Customer. BDC also agrees that any Services provided by BDC are expressly being developed for Customer as Services “made for hire.” If, for any reason, Customer is deemed to be the owner of any intellectual property rights in such Services, Customer hereby irrevocably assigns to BDC all such rights, title and interest and agrees to execute all document necessary to implement and confirm the letter and intent of this Section 8. To the extent that any intellectual property owned by Customer is incorporated into any Services, then Customer hereby grants an irrevocable, nonexclusive, fully paid-up license to BDC for the use of said intellectual property. If Customer first conceives, reduces to practice, makes or develops in the course of Services performed under any BDC contract, any inventions, discoveries or improvements (collectively, “Inventions”), Customer hereby agrees to assign to BDC all of Customer’s entire rights, title and interest in and to such Inventions.
9. Limited Warranty
a. For Services, BDC warrants that such Services shall (a) be performed in a professional manner by personnel who are adequately skilled and trained to industry standards and (b) be provided in a professional, timely and diligent manner. Except as noted in this section 9, BDC expressly disclaims any and all warranties, express or implied, written or oral, by operation of law or otherwise, including, but not limited to, any implied warranty of merchant ability or fitness for a particular purpose, with respect to the Services rendered under any BDC contract.
b. For Products, BDC shall pass through any applicable manufacturer’s warranties to the Customer.
c. No oral or written representation made by BDC employees or otherwise, shall create a warranty for any purpose or give rise to any liability of BDC whatsoever unless expressly stated in any BDC contract.
BDC shall keep in full force and effect insurance coverage with a reputable insurer with respect to BDC’s obligations and potential liabilities under any BDC contract, including Comprehensive General Liability Insurance. Within ten (10) calendar days of the Effective Date of any BDC contract, BDC shall provide to Customer upon request details of such insurance coverage in the form of a certificate of insurance.
All notices under any BDC contract shall be in writing and shall be given by personal delivery, or by registered or certified mail or overnight courier, return receipt requested, to the address provided by the parties and shall be deemed given upon receipt.
12. Modification of Agreement
Any BDC contract may only be amended, modified, or supplemented by a separate written document duly executed by authorized representatives of both Parties.
No term or provision of any BDC contract shall be waived, and no breach or default excused, unless such waiver or excuse is in writing and signed by the Party to which it is attributed. No consent by a Party to, or waiver of, a breach or default, by the other, whether expressed or implied, shall constitute a consent to or waiver of any subsequent breach or default.
14. Partial Invalidity
If any provision of any BDC contract shall be held to be invalid or unenforceable, the validity or enforceability of the remaining provisions shall not in any way be affected or impaired thereby, but rather any BDC contract shall be construed as if not containing the invalid or unenforceable provision. However, if such provision is an essential element of any BDC contract, the Parties shall promptly attempt to negotiate a substitute therefor.
15. Governing Law
The laws of the State of Iowa shall govern any BDC contract, without reference to conflict of law principles.
16. Rules of Construction
No rule of construction requiring interpretation against the draftsman shall apply in the interpretation of any BDC contract.
Any provisions of any BDC contract relating to confidentiality, intellectual property, indemnification, limitation of liability, and non-solicitation shall survive any termination of any BDC contract.
18. Entire Agreement
Any BDC contract represents the entire agreement of the Parties with respect to the subject matter hereof and supersedes all other agreements, written or oral, between the Parties with respect to its subject matter.
19. Attorney’s Fees and Costs
In the event BDC takes legal action to enforce the terms of any BDC contract, if the Customer is determined to be in violation of any BDC contract, Customer agrees to pay the reasonable attorney fees and other costs and expenses incurred by BDC.
20. Force Majeure
BDC shall not be responsible for any failure to perform any Services or deliver any Products due to causes beyond its reasonable control, including, but not limited to, acts of God, terrorism, war, riot, embargoes, fire, floods, earthquakes, or strikes (each a “Force Majeure Event”) provided that BDC gives prompt written notice to Customer of such Force Majeure Event. The time for performance will be extended for a period equal to the duration of the Force Majeure Event.
21. Dispute Resolution
The Parties will make good-faith efforts to resolve any dispute between the Parties. Upon written notice of such dispute, each Party will appoint a senior level executive who does not donate substantially all of his or her performance under any BDC contract to meet and resolve the dispute. If the dispute is not resolved within ten (10) business days after such written notice, or a longer period as agreed to in writing by the Parties, both Parties agree to participate in mandatory arbitration administered by the American Arbitration Association under its Commercial Arbitration rules. Any Arbitration judgment may be entered in any court of competent jurisdiction. Each Party is responsible for its own arbitration costs, and the Parties agree to equally share the costs of the arbitrator(s). Exclusive venue for any arbitration shall be Cedar Rapids, Iowa.
22. Title to Products
Title to any Products provided by BDC to Customer shall remain at all times with BDC until Customer pays the full Purchase Price. Title to the Products will be delivered free and clear of all liens, claims and encumbrances created by or through BDC and shall vest in Customer upon payment of the full Purchase Price and delivery of an executed Bill of Sale as required herein. While any such Products are in the possession of Customer, Customer shall accept all risk of loss or damage to the Products. From and after such full payment, any insurance and/or applicable storage fees on the Products shall be the sole responsibility of Customer.
BDC does not make any covenants, representations or warranties as to the condition of the Products and does not permit a refund should the condition of the Products be different from that expected. BDC will provide storage of any Products purchased by Customer at no charge until 60 day from approved contract date. A fee for storage will be charged thereafter, and will be included as part of the Purchase Price, at a rate of $150.00 per month for the first 2 months, and $350.00 per month thereafter.
24. “AS IS”
THE PRODUCTS SOLD HEREUNDER ARE SOLD “AS IS”, “WHERE IS” AND WITH ALL FAULTS. BDC MAKES NO, AND AFFIRMATIVELY DISCLAIMS ALL, WARRANTIES OF ANY TYPE OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY THAT THE PRODUCTS IS/ARE NEW OR UNUSED OR IS/ARE IN ANY PARTICULAR CONDITION. BDC FURTHERMORE EXPRESSLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY AGAINST INFRINGEMENT. BDC DISCLAIMS ANY WARRANTY AS TO FORM, FIT OR FUNCTION, OR THAT THE PRODUCTS CONFORM WITH ANY STANDARDS ESTABLISHED BY COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OF TRADE OR STANDARD-SETTING BODIES, OR THAT THE PRODUCTS COMPLY WITH ANY GOVERNMENTAL REGULATIONS. THERE ARE NO WARRANTIES EITHER EXPRESSED OR IMPLIED OR ANY AFFIRMATIONS OF FACT OR REPRESENTATIONS BEYOND THE FACE HEREOF.
25. Conflict in Terms
Any BDC contract supersedes all proposals and prior agreements (oral or written) between the parties relating to the sale of the Products or Services and prevails over any conflicting or additional terms of any purchase order, acknowledgment, or other between the parties. No amendment or modification of any BDC contract shall be valid or binding on the parties unless made in writing and executed on behalf of each party by its duly authorized representative.
26. No Presumption
Customer and BDC acknowledge and agree that no arbitrator in construing these terms and conditions shall construe it more stringently against one party than against the other party.
27. Website Terms
Notwithstanding anything to the contrary in this Agreement, BDC may modify these additional terms, which shall be effective upon posting and incorporated into all BDC contracts.