USA - General Terms and Conditions
1. Interpretation
1.1 In these General Terms of Delivery ("Terms"), the following expressions shall have the following meanings unless the context requires otherwise:
“Buyer”: the entity purchasing Goods and/or Services from Bettersize Inc.
“Goods”: any products, equipment, components, software, or related materials delivered or to be delivered by Bettersize Inc.
“Services”: any services provided or to be provided by Bettersize Inc. to the Buyer, including but not limited to installation, maintenance, training, or support.
“Order”: a written instruction issued by the Buyer for the supply of Goods and/or Services, accepted by Bettersize Inc.
“Software”: any computer programs, applications, firmware, or related digital products provided or to be provided by Bettersize Inc. to the Buyer, whether delivered physically or electronically.
“Shipment”: the tender of Goods by Bettersize Inc. to a common carrier at Bettersize Inc.’s shipping facility.
“Delivery”: delivery shall be deemed to occur upon Shipment.
2. Scope
2.1 These Terms apply to all quotations, sales, deliveries, and services rendered by Bettersize Inc. to any Buyer unless otherwise agreed to in writing. By placing an Order or accepting Shipment of Goods, the Buyer agrees to be bound by these Terms.
2.2 These Terms shall prevail over any conflicting terms proposed by the Buyer unless such conflicting terms are expressly accepted by Bettersize Inc. in writing.
3. Price and Payment
3.1 When the Buyer intends to purchase Goods, Software, or Services from Bettersize Inc., it must submit a formal Order to Bettersize Inc. This Order constitutes an offer by the Buyer to enter into a contract, but it shall not be binding on Bettersize Inc. unless and until accepted in accordance with clause 3.2.
3.2 If Bettersize Inc., at its sole discretion, agrees to the Buyer’s Order, it will issue an Order Confirmation. The contract shall be deemed finalized upon issuance of such Order Confirmation.
3.3 Unless separately stated by Bettersize Inc. in writing, prices for the Goods include standard packaging but exclude freight, insurance, and sales tax. All sales are FOB Origin (Bettersize Inc.’s facility) pursuant to Incoterms® 2020, unless otherwise expressly agreed in writing.
3.4 Unless otherwise agreed, fifty percent (50%) of the purchase price is due with the Order, and the remaining balance shall be payable within thirty (30) days from the date of invoice.
3.5 Invoices shall be issued upon Shipment of the Goods from Bettersize Inc.’s facility.
3.6 Title to the Goods and risk of loss or damage shall pass to the Buyer upon Shipment from Bettersize Inc.’s facility, regardless of the shipping method, freight payment terms, or the date of receipt by the Buyer.
3.7 Any retention of title for security purposes notwithstanding, the Buyer shall bear all risks associated with the Goods after Shipment. Any resale or use of the Goods by the Buyer shall not affect Bettersize Inc.’s rights to payment.
3.8 Invoices paid via credit card will incur a three percent (3%) processing fee.
3.9 In the case of late payments or where payment has not been received in accordance with the terms specified in the Order:
(a) Bettersize Inc. reserves the right to revise quoted prices after the quotation validity period has expired to reflect changes in materials, manufacturing, logistics, customs duties, or market conditions.
(b) Interest shall accrue on overdue amounts at an annual rate of twelve percent (12%), compounded daily. Bettersize Inc. may recover all reasonable costs incurred due to payment delay, including legal and collection costs.
(c) Bettersize Inc. reserves the right to delay or suspend further Shipments, require advance payment, or cancel pending Orders if the Buyer’s payment ability raises reasonable concern.
3.10 The Buyer shall not withhold or offset payments without Bettersize Inc.’s prior written consent.
4. Delivery
4.1 Delivery shall be deemed to occur upon Shipment of the Goods from Bettersize Inc.’s facility and shall be FOB Origin (Incoterms® 2020), unless otherwise expressly agreed in writing.
4.2 Any delivery or Shipment schedule communicated by Bettersize Inc. is indicative only and shall not be binding unless expressly confirmed in writing.
4.3 Partial Shipments are permitted and may be invoiced separately.
4.4 Risk of loss or damage shall transfer to the Buyer upon Shipment, as defined in Section 1.
4.5 Bettersize Inc. shall not be liable for any delay or failure in Shipment or delivery caused by force majeure events, including but not limited to natural disasters, war, terrorism, labor disputes, governmental actions, or other events beyond Bettersize Inc.’s reasonable control.
4.6 Bettersize Inc. shall notify the Buyer without undue delay upon the occurrence of a force majeure event and shall use commercially reasonable efforts to resume performance. Shipment timelines shall be extended accordingly.
5. Acceptance
5.1 The Goods shall be deemed accepted by the Buyer upon Shipment from Bettersize Inc.’s facility.
5.2 The Buyer may inspect the Goods after receipt solely to identify material non-conformities. Such inspection rights shall not delay acceptance, transfer of title, risk of loss, or payment obligations.
6. Cancellation
6.1 Unless otherwise expressly agreed in writing, the Buyer may cancel a purchase contract only if delivery has been unreasonably delayed due to Bettersize Inc.’s gross fault and a reasonable cure period set by the Buyer has expired without remedy. Any such cancellation must be submitted in writing via registered mail. Bettersize Inc. shall be entitled to invoice the Buyer for all goods delivered, services performed, and preparatory work undertaken prior to the cancellation.
6.2 Without prejudice to other rights, Bettersize Inc. may cancel a contract, in whole or in part, without liability to the Buyer if:
(a) delivery or performance becomes impossible or is delayed beyond a reasonable period due to Buyer-related causes.
(b) Bettersize Inc. has reasonable concerns about the Buyer’s financial stability and the Buyer fails to provide requested advance payment or sufficient security.
(c) the Buyer becomes or is deemed insolvent; or
(d) delivery is delayed for more than six (6) months due to force majeure or other causes referenced in Section 4.5.
6.3 No further remedies or compensation shall apply in connection with such cancellation, unless otherwise required by applicable law.
7. Service and Warranty
7.1 Bettersize Inc. warrants that all new instruments are free from defects in materials and workmanship for thirty-six (36) months from the date of installation. The thirty-six (36) month warranty applies solely to laboratory instruments (Bettersizer, BeNano, BeVision, PowderPro, BeScan, and BetterPyc Series). Smaller equipment and non-laboratory instruments are warranted for twelve (12) months from installation.
7.2 Non-instrument goods and spare parts are warranted for twelve (12) months from installation, subject to the limitations stated herein.
7.3 All warranties apply only if services and maintenance are performed by Bettersize Inc. or its authorized representatives.
7.4 In the event of a valid warranty claim, Bettersize Inc. shall, at its sole discretion, repair or replace the defective Goods. Ancillary costs shall be borne by the Buyer unless otherwise agreed.
7.5 The Buyer shall provide all necessary access and cooperation for service performance.
7.6 Risk associated with Services shall transfer to the Buyer upon completion of such Services at the place of performance.
7.7 Services, including installation, commissioning, training, or support, are separate from the sale of Goods and do not constitute a condition to Delivery, acceptance, or transfer of title of the Goods, unless expressly agreed in a separate written agreement.
7.8 Warranty claims must be reported within ten (10) days of discovery.
7.9 The warranty shall be deemed void in the event of:
(a) Misuse, abuse, or negligent handling of the Goods;
(b) Installation, operation, or maintenance that is not in accordance with Bettersize Inc.’s written instructions or is performed by an unauthorized party;
(c) Any modification, alteration, or repair not expressly approved in writing by Bettersize Inc.
7.10 In cases where, upon mutual written agreement, Bettersize Inc. manufactures a Good pursuant to Buyer-provided design data, drawings, or other specifications as part of a special modification, Bettersize Inc.’s warranty obligation shall be strictly limited to conformity with the Buyer’s specifications. No warranty shall apply to the suitability, performance, or fitness for purpose of the design, nor to any material or components supplied directly by the Buyer.
7.11 This warranty is non-transferable and shall not extend to any third party without the prior written consent of Bettersize Inc.
8. Software
8.1 Buyer shall not copy, modify, reverse engineer, or distribute Software without Bettersize Inc.’s prior written consent.
8.2 For custom-developed software, Buyer may be granted IP rights and access to source code upon separate written agreement.
9. Copyright / Intellectual Property
9.1 All intellectual property rights, including but not limited to copyrights, trademarks, patents, and design rights, remain with Bettersize Inc. unless explicitly transferred.
9.2 Buyer agrees not to infringe upon Bettersize Inc.'s IP rights and shall indemnify Bettersize Inc. against claims arising from Buyer-provided specifications or misuse.
10. Export Control
10.1 Buyer agrees to comply with all applicable export laws and regulations.
10.2 Buyer shall not resell, re-export, or transfer goods in violation of export control laws and shall indemnify Bettersize Inc. against any resulting claims or penalties.
11. Insurance
11.1 The Buyer shall be responsible for insuring the Goods from the time risk of loss transfers upon Shipment.
11.2 Bettersize Inc. maintains general commercial liability insurance.
12. Liability
12.1 Bettersize Inc. shall be liable only for damages that result from gross negligence or willful misconduct, subject to applicable legal limits. Bettersize Inc. shall not be responsible for damages arising from ordinary negligence.
12.2 Bettersize Inc. disclaims any liability and warranty obligations for damages or losses caused by the Buyer’s or any third party’s misuse or improper use of the Goods and/or Services, including but not limited to:Bettersize Inc. disclaims any liability and warranty obligations for damages or losses caused by the Buyer’s or any third party’s misuse or improper use of the Goods and/or Services, including but not limited to:
a) Normal wear and tear;
b) Operating conditions outside those specified for the Goods, such as environmental factors, electrical surges, or chemical exposure;
c) Negligence or intentional misconduct by the Buyer, end users, their agents, or employees, or failure to follow Bettersize Inc.’s usage instructions dated in the User Manual;
d) Assembly, installation, modification, repair, or servicing performed by anyone other than Bettersize Inc. or its authorized representatives;
e) Failure to comply with applicable licensing or regulatory requirements.
12.3 The total aggregate liability of Bettersize Inc. for all claims arising from or related to any order, whether based in contract, tort, statute, or otherwise, shall not exceed the total value of that order. Any claims exceeding this amount are expressly excluded.
12.4 Under no circumstances shall Bettersize Inc. be liable for indirect, incidental, consequential, special, punitive, or exemplary damages, including but not limited to loss of profits, business interruption, loss of data, loss of goodwill, or economic loss, regardless of the cause or theory of liability.
12.5 To the extent permitted by law, all claims under or related to orders shall be governed and handled according to the applicable liability insurance coverage of the parties involved.
13. Place of Jurisdiction, Governing Law and Arbitration
13.1 These Terms are governed by the laws of the State of California, without regard to conflict of laws.
13.2 Any dispute, controversy, or claim arising out of or in connection with these Terms, including the breach, termination, or validity thereof, shall first be submitted to binding arbitration administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules in effect at the time the arbitration is initiated. The arbitration shall take place in Orange County, California, and shall be conducted in English by a single arbitrator mutually agreed upon by the parties or, failing such agreement, appointed in accordance with the AAA rules.
13.3 Notwithstanding the foregoing, either party may seek interim or injunctive relief from any court of competent jurisdiction to prevent immediate and irreparable harm, pending final resolution of the dispute through arbitration.
13.4 Subject to Section 12.3, any dispute not resolved through arbitration, or any action to enforce or challenge an arbitration award, shall be brought exclusively before the state or federal courts located in Orange County, California, and both parties hereby consent to the jurisdiction and venue of such courts.
14. Confidentiality
14.1 Buyer shall keep confidential all technical, commercial, and pricing information received from Bettersize Inc.
14.2 Confidential information shall not be disclosed to third parties without prior written consent from Bettersize Inc.
14.3 Obligations under this clause survive the termination or expiration of any contract.