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 the Bettersize Inc. to the Buyer, including but not limited to installation, maintenance, or support.
“Order”: a written instruction issued by the Buyer for the supply of Goods and/or Services, accepted by the 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.
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 delivery, 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 a contract, but it will not be binding on Bettersize Inc. unless and until it is accepted in accordance with clause 3.2.
3.2 If Bettersize Inc., at its sole discretion, agrees to the Buyer’s order, it will provide an Order Confirmation to the Buyer. The contract is considered finalized upon issuance of this Order Confirmation.
3.3 Unless separately stated by Bettersize Inc. in writing, the price of the Goods stated in the Order will include the cost of the Goods along with standard packaging, customs clearance, and import duties. Prices are calculated based on delivery FOB Destination (Buyer's facility) according to Incoterms® 2020 and include freight, insurance, and sales tax.
3.4 Unless otherwise agreed, 50% payment is due with the order, the remainder within thirty (30) days from the date of invoice.
3.5 Payments shall be made in U.S. Dollars via bank transfer to Bettersize Inc.'s designated account. All bank charges and transfer fees shall be borne by the Buyer.
3.6 Title to the Goods shall pass to the Buyer upon the point of delivery, provided that the Buyer has made full payment of all outstanding amounts owed to Bettersize Inc. by such date. In the event that any payment remains outstanding, title to the Goods shall remain with Bettersize Inc. until all amounts due have been paid in full.
3.7 In the event that the Buyer resells any Goods over which Bettersize Inc. retains title pursuant to clause 3.6, the Buyer hereby irrevocably assigns to Bettersize Inc. all claims and rights arising from such resale, including claims against third parties, as security for Bettersize Inc.’s rights. This assignment shall apply notwithstanding any forms of processing, transformation, or combination of the Goods with other products or materials.
3.8 Invoices paid via credit card will incur a 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 the agreed price after the quotation validity period has expired, considering any substantial changes in input costs, including but not limited to materials, manufacturing, logistics, customs duties, or as a reflection of the current market situation.
(b) Interest will accrue on any overdue amounts at an annual rate of 12%, compounded daily. Bettersize Inc. is further entitled to seek compensation for all costs arising due to the payment delay, including —but not limited to—legal fees, administrative expenses, and third-party collection charges.
(c) Bettersize Inc. reserves the right to unilaterally delay or suspend shipments, demand partial or full advance payments, or cancel pending orders if the Buyer’s creditworthiness or payment record raises reasonable concern regarding their ability to meet contractual obligations.
3.10 Buyer shall not withhold payment or offset any amounts without prior written agreement by Bettersize Inc.
4. Delivery
4.1 Delivery shall be FOB Customer's facility per Incoterms® 2020 unless agreed otherwise.
4.2 Any delivery schedule communicated by Bettersize Inc. shall be considered indicative and not legally binding unless expressly confirmed in writing as firm dates.
4.3 Partial shipments are permitted and may be invoiced separately.
4.4 Risk of loss or damage shall transfer to Buyer at the delivery point as defined in the delivery term.
4.5 Bettersize Inc. shall not be liable for any delay or failure in shipment or delivery caused by events of force majeure. For the purposes of this clause, force majeure includes, but is not limited to, natural disasters, fire, flood, earthquakes, war, terrorism, and other circumstances beyond Bettersize Inc.’s reasonable control.
4.6 Bettersize Inc. shall notify the Buyer without undue delay upon the occurrence of any such force majeure event and shall use commercially reasonable efforts to mitigate its effects and resume performance as soon as possible. Delivery timelines shall be extended accordingly.
5. Cancellation
5.1 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.
5.2 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.
5.3 No further remedies or compensation shall apply in connection with such cancellation, unless otherwise required by applicable law.
6. Service and Warranty
6.1 Bettersize Inc. warrants that all new instruments are free from defects in materials and workmanship for a period of thirty-six (36) months from the date of installation.
6.1a The thirty-six (36) month warranty applies solely to laboratory instruments (Bettersizer, BeNano, BeVision, PowderPro, BeScan, and the BetterPyc Series). Smaller equipment (BeDensi, HFlow Series) and non-laboratory instruments (BT-Online, DeepSizer) are warranted for twelve (12) months from the date of installation.
6.2 Bettersize Inc. warrants that all non-instrument goods and spare parts are free from defects in materials and workmanship for a period of twelve (12) months from the date of installation.
6.2a This warranty applies only to products and spare parts manufactured by Bettersize Inc. It does not extend to accessories wholly procured from third parties. Bettersize Inc. cannot guarantee the continued supply of such third-party accessories or their related components.
6.2b This warranty excludes consumables and other wear-and-tear items.
6.3 All warranties set forth in this Section are valid only if all maintenance and service activities are performed by Bettersize Inc. or an authorized representative designated by Bettersize Inc.
6.4 In the event of a valid warranty claim, Bettersize Inc., at its sole discretion, shall repair or replace the defective goods. Unless otherwise agreed in writing, the Buyer shall bear all ancillary costs associated with warranty service, including but not limited to freight charges, travel expenses, and accommodation costs.
6.5 The Buyer shall provide Bettersize Inc. or its authorized representatives with all necessary access, documentation, resources, and working conditions required to properly perform the requested services, including but not limited to physical access to equipment, utilities and personnel assistance as reasonably requested.
6.6 Risk associated with service work shall transfer to the Buyer upon completion of the service at the place of performance.
6.7 If, during service activities, the goods are determined to be in a condition requiring additional services beyond the original scope, Bettersize Inc. may carry out such necessary services without prior Buyer consent unless otherwise agreed, and such services will be invoiced separately unless covered by this warranty.
6.8 All warranty claims must be reported within ten (10) days of discovery.
6.9 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.
6.10 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.
6.11 This warranty is non-transferable and shall not extend to any third party without the prior written consent of Bettersize Inc.
7. Software
7.1 Buyer shall not copy, modify, reverse engineer, or distribute Software without Bettersize Inc.’s prior written consent.
7.2 For custom-developed software, Buyer may be granted IP rights and access to source code upon separate written agreement.
8. Copyright / Intellectual Property
8.1 All intellectual property rights, including but not limited to copyrights, trademarks, patents, and design rights, remain with Bettersize Inc. unless explicitly transferred.
8.2 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.
9. Export Control
9.1 Buyer agrees to comply with all applicable export laws and regulations.
9.2 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.
10. Insurance
10.1 Buyer assumes responsibility for insuring goods upon transfer of risk.
10.2 Bettersize Inc. maintains general commercial liability insurance and shall provide proof of coverage upon request.
11. Liability
11.1 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.
11.2 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:
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.
11.3 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.
11.4 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.
11.5 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.
12. Place of Jurisdiction, Governing Law and Arbitration
12.1 These Terms are governed by the laws of the State of California, without regard to conflict of laws.
12.2 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.
12.3 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.
12.4 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.
13. Confidentiality
13.1 Buyer shall keep confidential all technical, commercial, and pricing information received from Bettersize Inc.
13.2 Confidential information shall not be disclosed to third parties without prior written consent from Bettersize Inc.
13.3 Obligations under this clause survive the termination or expiration of any contract.