1. Sales:
All sales are expressly conditional on Buyer’s agreement to the standard terms and conditions
herein. Any of the terms and provisions of Buyer’s order which are inconsistent with or in
addition to the terms and conditions hereof shall not be binding on Seller and shall not be
considered applicable to the sale or shipment of the merchandise referred to herein. Unless Buyer
shall notify Seller in writing to the contrary as soon as practicable after Buyer’s receipt hereof,
acceptance of the terms and conditions hereof by Buyer shall be indicated, and, in the absence of
such notification, the sale and shipment by Seller of the merchandise covered hereby shall be
conclusively deemed to be subject to the terms and conditions hereof.
2. Third Party Contract Obligations:
In the event that Buyer has contracted for or otherwise assumed with any other party any
obligation or liability to an owner, contractor, construction manager, governmental entity, or any
other person or entity responsible for the completion of any portion of any project in which
Seller’s goods will be used, the parties agree that Seller is not a party to such contract.
Therefore, Seller does not assume any liability or obligation – including but not limited to any
liability or obligation related to governmental regulations or flowdown terms – under any such
contract or agreement. Absent a written agreement to the contrary, signed by an authorized
representative of Seller, Buyer releases and agrees to defend, indemnify and hold Seller harmless
for any claims of any nature whatsoever related to any obligation, risk, liability or responsibility
which was Buyer’s under any contract or which was assumed by Buyer towards any owner,
contractor, construction manager, governmental entity, or other party involving the goods or
work supplied by Seller to fulfill any contractual requirement.
3. Important Notice to Federal Customers or Contractors Regarding Country of Origin:
It is Buyer’s responsibility to advise Seller in writing whether there are any requirements
regarding country of origin for the goods supplied by Seller. Upon request, Seller will provide
country of origin information so that Buyer may determine compliance with any applicable
governmental requirements or regulations. By purchasing goods without advising Seller of any
country of origin requirements, Buyer represents that it has authority to make such purchase and
has complied with all applicable procurement regulations.
4. Warranties:
The goods sold by Seller are products of recognized manufacturers sold under their respective
brand or trade name in accordance with their terms and conditions. Seller shall use its best efforts
to obtain from each manufacturer, in accordance with the manufacturer’s warranty (copies of
which will be furnished upon request) or customary practice, the repair or replacement of goods
that may prove defective in material, design, or workmanship. The foregoing shall constitute the
exclusive remedy of Buyer and the sole obligation of Seller. Except as to title, SELLER GIVES
NO WARRANTY, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR
ANY PARTICULAR PURPOSE, OR OTHERWISE. Seller shall not, under any circumstances
be liable for any special, direct, indirect, incidental, exemplary, liquidated, or consequential
damages to persons or property arising out of or connected with the transactions contemplated
hereby or the design, manufacture, subsequent sale or use of the goods, including, but not limited
to, loss of profit or revenues, loss of use of the products, or any associated equipment, cost of
capital, cost of substitute products, facilities, service, or replacement power, down time costs, or
claims of Buyer’s customers for such damages. Seller’s maximum cumulative liability relative to
all other claims and liabilities, including that with respect to direct damages and obligations
under any indemnity, whether or not insured, will not exceed the cost of the goods or services
giving rise to the claim of liability. Seller disclaims all liability relative to gratuitous information
or services provided by, but not required of seller hereunder. If Buyer transfers title to or leases
the products sold hereunder to any third party, Buyer shall indemnify and defend Seller and its
suppliers against any such damages.
5. Product Compliance and Suitability:
Jurisdictions have varying laws, codes and regulations governing construction, installation,
and/or use of goods for a particular purpose. Certain goods may not be available for sale in all
areas. Seller does not guarantee compliance or suitability of the goods it sells with any laws,
codes or regulations, nor does Seller accept responsibility for construction, installation and/or use
of goods. It is Buyer’s responsibility to review the product application and all applicable laws,
codes and regulations for each relevant jurisdiction to be sure that the construction, installation,
and/or use involving the goods are compliant. ABSENT ADVANCE WRITTEN SELLER
ACKNOWLEDGEMENT NOTHING SELLER SELLS IS FOR USE IN CONNECTION WITH
SAFETY-RELATED APPLICATIONS OF A NUCLEAR FACILITY OR ANY HAZARDOUS
ACTIVITY WHERE FAILURE OF A SINGLE COMPONENT COULD CAUSE
SUBSTANTIAL HARM TO PERSONS OR PROPERTY.
6. Intellectual Property
Upon prompt notice by Buyer of any claim of U.S. patent, copyright, or trademark infringement
with respect to any goods, Seller will use its reasonable efforts to secure for Buyer such
indemnity rights as the manufacturer may customarily give with respect to such goods. This
section sets forth Buyer’s sole and exclusive remedy against Seller regarding the infringement by
any goods of any third party intellectual property rights, including, without limitation, any
patents or trademarks.
7. Export Controls and Anti-Corruption:
Buyer acknowledges that this order and the performance thereof are subject to compliance with
any and all applicable United States laws, regulations, or orders. Buyer agrees to comply with all
such laws, regulations, and orders, including, if applicable, all requirements of the International
Traffic in Arms Regulations and/or the Export Administration Act, as may be amended. Buyer
further agrees that if the export laws are applicable, it will not disclose or re-export any technical
data received under this order to any countries for which the United States government requires
an export license or other supporting documentation at the time of export or transfer, unless
Buyer has obtained prior written authorization from the United States Office of Export Control
or other authority responsible for such matters. Buyer shall also comply with applicable laws
and regulations relating to anti-corruption, including, without limitation, the United States
Foreign Corrupt Practices Act (15 U.S.C. §§78dd-1, et. seq.) irrespective of the place of
performance and laws in Buyer’s country or any country where performance of this agreement or
delivery of goods will occur.
8. Delivery, Title and Risk of Loss:
Delivery dates are approximate and based upon receipt of all necessary information from Buyer.
Unless otherwise specified by Seller, delivery will be made and title and risk of loss or damage
will pass F.O.B. point of shipment to Buyer and each shipment or delivery shall be considered a
separate and independent transaction.
9. Excusable Delays:
Seller will notify Buyer promptly of any material delay and will specify the revised delivery as
soon as practicable. Seller shall not be liable for delays in delivery or performance, or for failure
to manufacture, deliver or perform as a result of acts of God, fire, acts of civil or military
authority, governmental priorities, strikes or other disturbances, floods, epidemics, war, riots,
delays in transportation or car shortages, or inability on account of causes beyond the reasonable
control of Seller to obtain necessary materials, components, services or facilities, or any other
cause beyond Seller’s reasonable control. In the event of any such delay there will be no
termination and the date of delivery or performance shall be extended for a period equal to the
time lost by the reason of the delay.
10. Cancellation:
Unless the cancellation is due to a default by Seller, once an order is placed with and accepted by
Seller, the order cannot be cancelled, unless Seller consents in writing. If an order is cancelled,
Buyer shall reimburse Seller for any cost it incurs as a result of such cancellation, including but
not limited to cancellation or restocking fees.
11. Returns:
Merchandise is not returnable without the written consent of Seller. Requests for permission to
return must be made within thirty days after receipt of shipment. Seller will assign an authorized
number for approved returns which must appear on both the customer’s shipping container and
the related debit memo. Only current items in their original cartons standard package quantities
are subject to return. All unauthorized returns will be sent back to Buyer at Buyer’s expense.
Return shipments must be pre-paid and shipped in accordance with the instructions set forth on
the return authorization form. Credit will be issued, less any transportation charges and service
charges, to cover handling, inspection, counting, repacking, etc.
12. Payments and Financial Conditions:
Unless otherwise provided, deduct percentage cash discount shown in C/D column from total
due (which is intended to include sales tax, if any is charged) if paid by 10th of the month
following purchase, otherwise net payment is due by the 15th of the month following purchase.
A service charge of 1 1/2% per month, but not to exceed the highest amount allowed by
applicable state law, shall be made on all sums due Seller that have not been paid within thirty
(30) days from the invoice date, and Buyer agrees to promptly pay said service charge. If Seller
commences litigation or employs attorneys to collect payment of any amounts due it from Buyer,
Buyer agrees to pay reasonable attorney’s sums which may be due.
Except to the extent otherwise specified by Seller in its quotation, pro rata payments shall
become due without setoff as shipments are made. If Seller consents to delay shipment after
receipt of any specially ordered products, payment shall become due on the date when Seller is
prepared to make shipment. In the event of any such delay, products shall be held at Buyer’s risk
and expense.
Any order for products by Buyer shall constitute a representation that Buyer is solvent and has
the ability to pay its obligations as they become due. In addition, upon Seller’s request, Buyer
will furnish a written representation concerning its solvency at anytime prior to shipment.
If Buyer’s financial condition at any time does not justify continuance of the work to be
performed by Seller hereunder on the agreed terms of payment, Seller may require full or partial
payment in advance. In the event of Buyer’s bankruptcy or insolvency, or in the event any
proceeding is brought against Buyer, voluntary or involuntary, under any bankruptcy or
insolvency laws, Seller shall be entitled to cancel any order then outstanding at any time during
the period allowed for filing claims against the estate, and shall receive reimbursement for its
proper cancellation charges. Seller’s rights under this article are in addition to all rights as they
are available to it at law or in equity.
13. Disclosure of Information:
Any information, suggestions or ideas transmitted by Buyer to Seller in performance hereunder
are not to be regarded as secret or submitted in confidence except as may be otherwise provided
in writing and signed by a duly authorized representative of Seller.
14. Electronic Interchange of Data:
If Buyer and Seller mutually agree to use an electronic method or system to facilitate purchase
and sale transactions, Buyer agrees that it will not contest: (i) any contract of sale resulting from
such electronic means of data exchange under the provisions of any law relating to whether
agreements must be in writing or signed by the party to be bound thereby; or (ii) the
admissibility of copies of electronic records under the business records exception to the hearsay
rule, the best evidence rule or any other similar rule, on the basis that such records were not
originated or maintained in documentary form. Buyer and Seller will negotiate and agree on
technical standards and methods to use in making electronic purchases, and will use reasonable
security procedures to protect electronic records from improper access. In the event of a conflict,
the business records maintained by Seller regarding electronic purchases made by customer shall
be deemed to be conclusive.
15. Taxes:
In addition to any price specified herein, Buyer shall pay the gross amount of any present or
future sales, use, excise, value-added or other similar tax applicable to the price, sale, or delivery
of any product or services furnished hereunder, or to their use by Seller or Buyer, or Buyer shall
furnish Seller with a tax exemption certificate acceptable to the taxing authorities.
16. Claims Against Seller:
In order to give Seller a reasonable opportunity for investigation, any claim by Buyer against
Seller based wholly or in part upon, or any manner related to this agreement and/or merchandise
sold hereunder, shall be made in writing and delivered to Seller within (30) days after the date of
sale or occurrence giving rise to the claim, whichever shall be later; otherwise such claims shall
be waived. Each notice of claims shall set forth fully the facts on which the claim is based. Any
action based on such claim, or otherwise arising hereunder, must be commenced and prosecuted
within two years after the cause of action has accrued.
17. General:
Any products delivered by Seller hereunder will be produced in compliance with the Fair Labor
Standards Act of 1938 as amended and applicable. Seller will comply with applicable Federal,
State, and local laws and regulations as of the date of any quotation, which relate to (i) nonsegregated
facilities and Equal Employment Opportunity (including the seven paragraphs
appearing in Section 202 of Executive Order 11246 as amended) and (ii) Worker’s
Compensation. Price and, if necessary, delivery will be equitably adjusted to compensate Seller
for the cost of compliance with any other laws and regulations.
The delegation or assignment by Buyer of any or all of its duties or rights hereunder without
Seller’s prior written consent shall be void. Any representation, promise, course of dealing, or
trade usage not contained or referred to herein, will not be binding on Seller. No modification,
amendment, rescission, waiver or other change shall be binding on Seller unless assented to in
writing by Seller’s authorized representative. The validity, performance and all matters relating
to the interpretation and effect of this agreement or any amendment hereto shall be governed by
the Uniform Commercial Code as in effect in the state in which Seller’s place of business is
located. Waiver by Seller of any default by Buyer hereunder shall not be deemed a waiver by
Seller of any default by Buyer which may thereafter occur.
18. Paragraph Headings:
Paragraph headings are inserted for convenience only and shall not be deemed to limit or affect
the scope of the provisions contained therein.