Terms and Conditions

  1. Acceptance. These terms & conditions and any documents referenced herein represent the entire agreement between the parties.  These terms and conditions supercede any previous oral or written representation including any Purchase Order, Quotation or other similar document.  Any modification to these terms must be agreed to, in writing, by both parties.  Delivery by Bastian to Customer of the materials shall constitute acceptance of both the materials and the terms and conditions herein unless expressly disclaimed in writing by both parties. Customer’s acceptance of this order shall be deemed acceptance of all of its terms.  

  2. Delivery.  Delivery shall be FOB to the address specified by the customer.

  3. Conformance.  . All goods or materials are warranted by the manufacturer to the extent of the manufacturer’s express warranties to Bastian to be free from defects in material and workmanship under normal use and service.

  4. Inspection.  Bastian has the right to inspect, at any stage of manufacture or production, any goods or materials delivered. Customer agrees to inspect the goods/material upon delivery.

  5. Specifications.   Bastian reserves the right to make any changes to any drawings or specifications relating to any goods or materials being supplied to Customer.  In the event that such changes result in a change in the cost of goods ordered, the price of such goods shall be adjusted by mutual agreement.

  6. Payment.  Bastian has the right to apply any monies paid by Customer towards any outstanding sums which Customer or any of Customer’s affiliates owe to Bastian.  Payment by Customer of invoiced amount(s) shall be due fifteen (15) days from the order date. Bastian shall invoice Customer in arrears for all accepted modifications. The amount(s) owed are non-refundable, not subject to set-off and do not include any taxes, tariffs, duties or other governmental charges or expenses imposed in connection with this transaction. Orders over $5,000 paid via credit card will be charged a 3% handling fee where applicable.

  7. Late Payment.   Any payment or charge that is not paid when due, shall in addition to all other remedies available to Bastian, bear interest at a rate of one and one half (1½) percent (%) per month or the maximum rate permitted by law (whichever is less) for the number of days payment is delinquent.  Bastian may suspend or cancel performance if any payment is delinquent more than ten (10) days.  A reinstatement fee equal to the costs of mobilization plus any late payment shall be payable upfront in order to restart service after any such occurrence.  If Customer is more than ten (10) days late for payment, Bastian shall have the right to terminate. Termination fees may be assessed at Bastian’s sole discretion if Bastian terminates this order for late payment.
  8. Modification.  The functions and/or features provided by Bastian shall be determined by Bastian.  While Bastian may modify the goods or materials at its sole discretion, the goods or materials shall at all times provide the same core functionality specified by customer.

  9. Default Time is of the essence.  The occurrence of any of the following shall constitute a default: 1) non-payment or non-performance of any obligations; 2) any representation by customer which is untrue or misleading at the time it was made; 3) any substantial, uninsured loss, theft or damage to the equipment or materials while in the possession of the customer and not paid for.  Upon such event(s), Bastian shall have the right to terminate this order as a default, in Bastian’s sole discretion.

  10. Insolvency.  If Customer ceases to conduct business, becomes insolvent, is insecure, subject to a take-over, bankrupt (involuntary or voluntary), is part of an assignment, placed in receivership or other similar proceeding then this order may be terminated in Bastian’s sole discretion. Upon such termination, Customer shall immediately cease all use of any goods or materials not paid for and cooperate with Bastian so to return such goods or materials to Bastian. Which cooperation will include allowing Bastian to enter Customer’s premises on which the equipment or materials are located, in whole or part, and to remove same. Customer is to provide to Bastian prompt notice of the circumstances described herein. Bastian shall have all rights of recovery including but not limited to rights of self-help, lien or replevin. 

  11. Title.   Customer shall obtain title only to goods or materials paid for in whole.  Until Bastian receives payment, title will not pass to Customer.

  12. Warranties; Limitations.  The goods or materials supplied by Bastian are provided according to Customer’s specifications.  Any warranties, express or implied, including warranties of merchantability, fitness for a particular purpose are expressly disclaimed.  Neither party shall be liable to the other or to any third party under any contract, negligence, strict liability or other legal or equitable theory for (1) any loss of business; (2) any loss of goodwill; (3) any indirect, special, punitive, exemplary, incidental or consequential damages.  In no event shall any damages or liability be in excess of the total amount of this order.

  13.  Customer’s Remedies.  Upon written notice by Customer, Customer has the right to cancel within five (5) business days from date of Customer’s acknowledgement.  Upon receipt of such written notice by Bastian, Bastian will stop all work and this order will be terminated; however, Customer will be responsible for Bastian’s costs to date upon receipt of written notice of cancellation by Bastian upon which costs include allocated overhead and Bastian’s standard margin of profit. 

  14. Bastian’s Remedies. Should Customer be in default, Bastian shall have the right to terminate.  In such event, Bastian shall be entitled to either recover all amounts owed and/or to take possession of the goods or materials not paid for.  Should Bastian take possession, Bastian shall be entitled to collect the difference between its recovery and the amount(s) owed. Customer shall have no direct rights to resale. Bastian, at its sole option, may sue to recover monies owed, take possession of the goods or materials, place a lien on the property or other similar remedies. Bastian’s rights are cumulative and non-exclusive.  Bastian shall have the right to impose a termination fee. This fee will include allocated overhead costs, remaining amounts owed, Bastian’s standard margin of profit and any costs (including attorneys fees) to collect.

  15. Assignment. These terms & conditions shall be binding upon and inure to the benefit of the parties and their respective successors, transferees and assigns. Provided, however, any assignment shall be void unless written consent of the other party has been obtained.

  16. Force Majeure.  Bastian is not responsible for any delays, errors, acts, omissions, or interruptions caused by circumstances beyond either party’s reasonable control, including but not limited to: war, terrorism, natural disaster or act of God.  Should a force majeure event occur and last in excess of ninety (90) days, either party may terminate this agreement upon written notice with no penalty.

  17. Amendment. Any amendment to this Agreement must be in writing and signed by both parties.

  18. Notices.  Written notices required herein shall be sent to the address and person listed on the order and shall be deemed delivered upon mailing.

  19. Fees.  Each party is responsible for their own legal and accounting fees unless otherwise expressly provided for herein.

  20. Severability. If any provision of this order is held by a court of competent jurisdiction to be contrary to law or otherwise invalid, the remaining provisions shall remain in full force and effect.
  21. Party’s Relationship. Neither party’s a partner, joint venturer, or agent with the other party.

  22. Waiver.  The failure by a party to impose rights hereunder shall not act as a waiver of any subsequent rights.

  23. Governing Law. This order shall be governed by and construed and interpreted by the substantive and procedural laws of the State of Indiana regardless of any choice of law provisions.  The parties agree to and consent to the subject matter and personal jurisdiction of the courts sitting in Marion County, Indiana.