Terms & Conditions
Bearacade® product is a device intended to slow or prevent an interior door from being opened.
In order for Bearacade® to effectively deploy, intended doorways must be prepared correctly using the instructions provided by National School Control Systems, LLC.
National School Control Systems, LLC recommends that each user develop and follow their own Administrative Policies (school administration and local safety forces) or amend their Student Code of Conduct as to the following:
- When the device can be handled/deployed, i.e. lockdown drills and lockdowns
- Where the device is mounted, i.e. on the interior of a door, on a wall adjacent to a door, etc.
- The “All Clear” process, signalization, code word, or other communication that will be used for releasing/removing the Bearacade®
- The messaging system (colors, patterns, and/or words printed) for the Interior Guidance Panel and the Exterior Notification Panel on the Bearacade®.
- Other than classrooms, which other locations of possible shelter-in-place where the Bearacade® will be used
The mere presence and use of a Bearacade® does not guarantee safety. It is designed with every intent to slow an intruder and allow safety forces precious seconds/minutes to arrive to quell a situation.
Terms and Conditions
- Applicability. These terms and conditions (these “Terms”) are the only terms and conditions that govern the sale of the goods (“Goods”) by National School Control Systems, LLC (“Seller”) to the buyer (“Buyer”) named in the accompanying quotation/invoice (“Sales Confirmation”). The Sales Confirmation and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement prevails over any of Buyer’s terms and conditions regardless of whether or when Buyer has submitted its purchase order or such terms and conditions. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend this Agreement.
- Delivery. The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order or delivery of the Sales Confirmation, subject to availability of finished Goods. Seller shall deliver the Goods to the address of Buyer listed on the Sales Confirmation using Seller’s standard methods for packaging and shipping such Goods. Seller may, at its option, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order or the Sales Confirmation.
- Non-Delivery. The quantity of any installment of Goods as recorded on dispatch from the shipping point is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within five days of the date when the Goods would in the ordinary course of events have been received. Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
- Quantity. If Seller delivers to Buyer a quantity of Goods of up to 10% more or less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Sales Confirmation adjusted pro rata.
- Shipping Terms. Delivery shall be made FOB shipping point.
- Title and Risk of Loss. Title and risk of loss pass to Buyer upon delivery of the Goods at the shipping point. As collateral security for the payment of the Price, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Ohio Uniform Commercial Code.
- Amendment and Modification. This Agreement may only be amended or modified in a writing that specifically states that it amends this Agreement and is signed by an authorized representative of each party.
- Inspection and Rejection of Nonconforming Goods. Buyer shall inspect the Goods within 30 days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only the following: (a) product shipped is different than identified in the Sales Confirmation or (b) product’s label or packaging incorrectly identifies its contents. If Buyer timely notifies Seller in writing of any Nonconforming Goods, Seller shall, at is option, (i) replace such Nonconforming Goods with conforming Goods or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s place of business. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the address of Buyer listed on the Sales Confirmation. Buyer acknowledges and agrees that the remedies set forth in this Section 8 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under this Section 8, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased to Seller.
- Price. Buyer shall purchase the Goods from Seller at the price (“Price”) set forth in the Sales Confirmation. The Price is exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such taxes, duties and charges.
- Payment Terms. Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of the invoice. Buyer shall make all payments hereunder by check and in US dollars to “National School Control Systems, LLC” at National School Control Systems, LLC, 118 W. Streetsboro Road, Suite 173, Hudson, Ohio 44236. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
- Limited Warranty.
(a) Seller warrants to Buyer that for a period of one year from the date of shipment of the Goods (“Warranty Period”), that such Goods will be free from material defects in material and workmanship.
(b) NOTICE: THE WARRANTY SET FORTH IN SECTION 11(a) IS IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED, THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY (i) IMPLIED WARRANTY OF MERCHANTABILITY, (ii) IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR (iii) WARRANTY AGAINST INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
(c) Seller shall not be liable for a breach of the warranty set forth in Section 11(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.
(d) Seller shall not be liable for a breach of the warranty set forth in Section 11(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, preparation, installation, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
(e) Subject to Section 11(c) and Section 11(d), with respect to any such Goods verified by Seller to be defective during the Warranty Period, Seller shall, at Buyer’s option, either: (i) repair or replace such Goods (or the defective part); or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
- Limitation of Liability. THE REMEDIES SET FORTH IN SECTION 11(e) SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(a). IN NO EVENT SHALL SELLER BE LIABLE FOR ANY OTHER DAMAGE OR LOSS, INCLUDING, BUT NOT LIMITED TO, ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. SELLER SHALL NOT BE LIABLE FOR DAMAGE OR DEFECTS RESULTING FROM OR DUE TO CIRCUMSTANCES BEYOND SELLER’S CONTROL, INCLUDING, BUT NOT LIMITED TO, USE OF THE GOODS FOR PURPOSES OTHER THAN FOR WHICH THEY WERE INTENDED, FAILURE TO FOLLOW SELLER’S ORAL AND WRITTEN INSTRUCTIONS AS TO THE STORAGE, PREPARATION, INSTALLATION, USE AND MAINTENANCE OF THE GOODS, ABUSE OR MISUSE BY BUYER OR OTHER PARTIES, ACTS OF GOD, OR FIRE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
- Compliance with Law / Instructions. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all of Seller’s oral and written instructions as to the storage, preparation, installation, use or maintenance of the Goods. The BEARACADE Preparation & Installation Instructions are incorporated by reference into this Agreement.
- Indemnification. Buyer shall indemnify, defend, and hold harmless Seller and its affiliates and its and their respective equity holders, stockholders, members, directors, managers, officers, employees, agents, and contractors from and against any and all claims, damages, losses, expenses, costs, liabilities, suits, actions, and proceedings, including, without limitation, attorney’s fees, arising out of or related to (a) the storage, preparation, installation, use or maintenance of the Goods, (b) breach of this Agreement by Buyer, or (c) the performance of this Agreement by Buyer.
- Termination. In addition to any remedies that may be provided under this Agreement, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of the provisions of this Agreement, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
- Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Confidential Information. All non-public, confidential or proprietary information disclosed by Seller to Buyer is confidential, solely for the use of performing this Agreement, and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section.
- Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any of the terms of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
- Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Governing Law. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Ohio.
- Submission to Jurisdiction. Any suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Ohio in each case located in the City of Cleveland and County of Cuyahoga, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
- Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, without limitation, the following provisions: Compliance with Laws / Instructions, Indemnification, Confidential Information, Governing Law, Submission to Jurisdiction, and Survival.
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