Seller’s Terms & Conditions of Sale (“Terms & Conditions”)
1. ACCEPTANCE: Acceptance of any order is subject to credit approval by Seller, acceptance of the order by Seller and, when applicable, Seller’s Vendor (i.e. manufacturers, vendors, or other third parties that provide goods to Seller for resale to Buyer). If Seller, in its sole discretion, determines that Buyer’s ability to pay or credit becomes unsatisfactory or it has reasonable grounds for insecurity, Seller reserves the right, upon notice to Buyer, to demand adequate assurance of due performance from Buyer and/to terminate this agreement with no liability to Seller. BY REQUESTING A QUOTE FROM SELLER OR PRESENTING AN ORDER TO SELLER, BUYER CONFIRMS THAT THESE TERMS & CONDITIONS SHALL GOVERN ALL PURCHASES OF GOODS, MATERIALS AND/OR SERVICES PROVIDED TO BUYER BY SELLER (COLLECTIVELY “GOODS’) BY BUYER FROM SELLER. SELLER OBJECTS TO AND REJECTS ANY CHANGES OR ADDITIONAL OR DIFFERENT TERMS (CONTAINED IN A PURCHASE ORDER ACCEPTED BY SELLER, OR OTHERWISE) AND NO SUCH TERMS WILL CHANGE THESE TERMS & CONDITIONS UNLESS ACKNOWLEDGED IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER. NO SELLER EMPLOYEE OR AGENT HAS THE AUTHORITY TO MODIFY THESE TERMS & CONDITIONS VERBALLY. SELLER OBJECTS TO AND REJECTS ANY TERMS BETWEEN BUYER AND ANY OTHER PARTY, AND NO SUCH TERMS, INCLUDING BY NOT LIMITED TO ANY GOVERNMENT REGULATIONS OR “FLOWDOWN” TERMS, SHALL BE A PART OF OR INCORPORATED INTO ANY ORDER FROM BUYER TO SELLER, UNLESS AGREED TO IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF SELLER. 2. PRICES AND TAXES: Buyer agrees to pay the prices quoted by Seller and is responsible for additional applicable shipping and handling charges, taxes and duties. Seller shall collect applicable taxes unless Buyer submits a valid tax exemption certificate, and indicates which Goods are covered by it. Prices on special‐order Goods may be subject to change before Seller’s acceptance of such order, Seller shall notify Buyer of any change, and Buyer may at its discretion cancel the special‐order Goods if the revised prices are unacceptable, without charge. 3. PAYMENT: 50% deposit of material cost due upon order, balance upon delivery date of product. Retainage shall not apply, and Buyer shall not hold back any retainage from Seller, even if ability to collect funds from any other party. Credit card sales are billed at the time of purchase. Buyer expressly represents it is solvent at the time it places any purchase order with Seller. Seller, in its sole discretion, may determine that Buyer’s financial condition requires full or partial payment prior to manufacture or shipment. Seller may obtain and use your credit history for credit evaluation purposes. Seller may apply payments to any outstanding invoices unless Buyer provides specific payment direction. 4. REMEDIES FOR NON‐PAYMENT: If Buyer fails to make any payment due, Seller reserves the right to suspend performance. Buyer agrees to pay a charge on all amounts past due at the rate of 1 1⁄2 per month (18% per year) of the maximum lawful rate, whichever is less. In the event of non‐ payment, Buyer agrees to pay Seller’s reasonable attorney fees and court costs, if any, incurred by Seller to collect payment and all applicable interest charges. Buyer acknowledges that transactions to which these terms relate are commercial transactions. 5. TITLE AND RISK OF LOSS OR DAMAGE: As to Goods delivered by Seller’s truck, title passes upon delivery at the place Buyer receives possession; and, thereafter, all risk of loss or damage shall be on Buyer. Claims for Goods damage in transit to Buyer from Seller, or Seller’s Vendor (i.e. manufacturers, vendors, or other third parties that provide goods to Seller for resale to Buyer) shall be the Seller’s sole responsibility. 6. QUOTATIONS: All quotations expire thirty (30) days from the date of the quotation unless otherwise part of the Buyer Pricing List which expires 1 year from acceptance of Buyer application by Seller. This time limit applies even if Buyer uses the quotation to submit a job or project bid to any other party. 7. ASSIGNMENT: An order shall not be assigned by Buyer without the express written consent of Seller. Consent will not be required, however, for internal transfers and assignments as between either party and its affiliates, and nothing herein shall limit either party’s right to factor of sell receivables. 8. RETURN OF PRODUCTS AND ORDER CANCELLATION: Seller shall accept returns of normal stock Goods for a period of thirty (30) days following shipment for exchange or refund of the purchase price; provided, that Goods must be in their original cartons, unopened and unused and are subject to appropriate restocking/cancellation fees equal to 10% of purchase price. Any Goods, stock or direct, order by Seller as Buyer‐specific and/or non‐returnable to its Vendor are subject to a restocking/cancellation fee of 100% of the cost of the Goods. 9. TERMINATION: Either party may terminate the whole or any part of the other party’s performance under a purchase order if there is a material breach of these Terms & Conditions. In the event of any such breach, the non‐breaching party will provide the breaching party with written notice of the nature of the breach and the non‐breaching party’s intention to terminate for default. In the event the breaching party does not cure such failure within ten (10) days of such notice, the non‐breaching party may, by written notice, terminate the order, provided, that the breaching party shall continue its performance to the extent not terminated. 10. INTERPRETATION RESPONSIBILITY; PRODUCT USE AND SAFETY: Seller does not guarantee that the Goods it sells conform to any plans and specifications or intended use. When plans and specifications are involved, Buyer is solely responsible for verifying Seller’s interpretations of such plans and specifications, and it is Buyer’s sole responsibility to assure that Seller’s Goods will be accepted on any specific job. When Seller offers substitute Goods on any proposal, Buyer is solely responsible for confirming their acceptability. BEFORE BUYER USES OR INSTALLS ELECTRICAL PRODUCTS, IT IS BUYERS RESPONSIBILITY TO CONSULT THE NATIONAL ELECTRIC CODE AND ANY PERTINENT LOCAL, STATE OR NATIONAL CODES, RULES REGULATIONS FOR APPROVED INSTALLATION PROCEDURES AND PRECAUTIONS. 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. 11. DELIVERY: Seller shall deliver the Product for each order by a mutually agreed upon project delivery date. Upon notification to Buyer from Seller of a delay beyond the mutually agreed upon delivery date, Buyer has the option to accept such delay or cancel the order with 100% refund of any deposits made toward that order. 12. EXCUSABLE DELAYS: Seller shall have no liability if its performance is delayed or prevented by any acts of nature. In the event of any such delay, the date of delivery or performance shall be extended for a period equal to the time lost by reason of delay. Should shipments be held or stored beyond the delivery date for convenience of Buyer, Seller may, at its option, assess reasonable charges for any expense incident to such delay. 13. CLAIMS: Claims for any nonconforming Goods must be made by Buyer, in writing, within ten (10) days of Buyer’s receipt of such Goods and must state with particularity all material facts concerning the claim then known to Buyer. Failure by Buyer to give notice within such ten (10) day period shall constitute an unqualified acceptance of such Good by Buyer, and a waiver of any right to reject or revoke acceptance of such Good. 14WARRANTIES. (a) SELLER’S WARRANTIES: Seller warrants that all Goods sold are new and free from defects, and upon payment in full by Buyer, the Goods will be clear of any security interest leans. Seller is a Seller and not a manufacturer and makes no independent Warranties other than those set forth herein. (b) VENDORS WARRANTIES: Seller, upon Buyer’s request, shall effectuate the Vendor Warranties and or remedies provided to Seller by its Vendor which shall be incorporated as part of these Terms & Conditions as set forth below: Energex Inc., and or its subsidiaries and its affiliates, (the “manufacturer”) warrants itsproducts hereinafter referred to as “the product” or “products” to be in conformance with its own plans and specifications and to be free of defects in materials and workmanship under normal use in service for a period of one (1) years from the date of installation by a qualified electrical, mechanical , or controls company. The manufacturer obligation shall be limited within the warranty period, at its option, to repair or replace the product or any part thereof. This warranty does not apply in the following cases: misuse, failure to follow operating and maintenance instructions, alterations, abuse, accident or tampering and repair by anyone other than the manufacturer. This warranty is exclusive and expressly in lieu of all other warranties, obligations or liabilities whether written, oral, expressed or implied, including any warranties of merchantability or fitness for a particular purpose, or otherwise. In no case shall the manufacturer be liable to anyone for any consequence or incidental damages for breach of this warranty or any other warranty.Energex Inc. represents and warrants that the products sold and serviced by its Authorized Sellers, the equipment and the documentation, or any part of any of the foregoing, will not infringe or constitute a misappropriation of any right of any third party, including any copyrights, mask work rights, patent rights, trademark rights, trade secret rights or confidentiality rights. All patents, rights, control logic and artificial intelligence (AI) functions are exclusively owned by Energex Inc.
(c) INTELLECTUAL PROPERTY INFRINGEMENT: SELLER DISCLAIMS ANY AND ALL WARRANTIES AND OR INDEMNIFICATIONS AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY NATURE. SELLERS SHALL, CAUSE MANUFACTURER TO GRANT FOR THE BUYER SUCH WARRANTY OR INDEMNITY RIGHTS AS A MANUFACTURER MAY CUSTOMARILY GIVE WITH RESPECT TO SUCH GOODS. (d) LIMITATIONS: THERE ARE NO OTHER WARRANTIES WRITTEN OR ORAL, EXPRESS, IMPLIED OR BY STATUTE. NO IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES. NO REPAIRS OF GOODS ARE OTHER COSTS ARE ASSUMED BY SELLER UNLESS AGREED TO, IN ADVANCE, IN WRITING. 15. LIMITATIONS OF LIABILITY: UNLESS APPLICABLE LAW OTHERWISE REQUIRES, SELLER AND ANY VENDOR’S TOTAL LIABILITY TO BUYER, BUYER’S CUSTOMERS OR TO ANY OTHER PERSON, RELATING TO ANY PURCHASES GOVERNED BY THESE TERMS & CONDITIONS, FROM THE USE OF THE GOODS FURNISHED OR FROM ANY ADVICE, INFORMATION OR ASSISTANCE PROVIDED BY SELLER (BY ANY METHOD, INCLUDING A WEB SITE), IS LIMITED TO “TOTAL PRICE” VALUE OF THE ORDER GIVING RISE TO THE CLAIM. NEITHER SELLER NOR ITS VENDORS SHALL BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, INCIDENTAL, DIRECT CONSEQUENTIAL OR PENAL DAMAGES (INCLUDING, BUT NO LIMITED TO BACK-CHARGES, LABOR COSTS, COST OF REMOVAL, REPLACEMENT, TESTING OR INSTALLATION, LOSS OF EFFICIENCY, LOSS OF PROFITS OR REVENUES, LOSS OF USE OF THE GOODS OR ANY ASSOCIATED GOODS, DAMAGE TO ASSOCIATED GOODS, LATENESS OR DELAYS IN DELIVERY, UNAVAILABILITY OF GOODS, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES OR SERVICES, DOWNTIME, OR CLAIMS FROM BUYER’S CUSTOMER OR OTHER PARTIES). IF SELLER FURNISHES BUYER WITH ADVICE OR OTHER ASSISTANCE WHICH CONCERNS ANY GOODS SUPPLIES HEREUNDER, OR ANY SYSTEM OR EQUIPMENT IN WHICH ANY SUCH GOODS MAY BE INSTALLED, AND WHICH IS NOT REQUIRED PURSUANT TO THESE TERMS & CONDITIONS, THE FURNISHING OF SUCH ADVISE OR ASSISTANCE WILL NOT SUBJECT SELLER TO ANY LIABILITY, WHETHER BASED CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHER GROUNDS. 16. MISCELLANEOUS (a) EXPORTS: If Goods are sold for export, Sellers standard terms and conditions for export sales apply. Acceptance of export orders is not valid unless confirmed in writing by Seller. Buyer, not Seller, is responsible for compliance with all United States export control rules and regulations. Buyer shall not name Seller as shipper or exporter of record in connection with the export of any Goods purchased from Seller. (b) ANTI‐MONEY LAUNDERING RESTRICTIONS: Seller rejects questionable orders and payments. Except for preapproved credit arrangements, Seller rejects third‐party payments, cashier’s checks, money orders and bank drafts. Seller accepts only checks imprinted with Buyers name, Wire transfers originated in Buyer’s account, and credit or debit cards in Buyers name. All payments must be by single instrument in the amount of invoice, less credits, from banks acceptable to Seller. (c) GOVERNING LAW: These terms and conditions and all disputes related to it shall be governed by the laws of the state of Florida, United States of America, without giving affect too it’s conflict of law rules. (d) SELLER PARTIES: For the purpose of these Terms and Conditions, the term Seller show mean the Seller party set forth on the quotation or other sales agreement to which these Terms and Conditions are attached or in which they are incorporated by reference. Seller’s Terms & Conditions of Sale (“Terms & Conditions”) Hotel Service Corporation USA & Caribbean Authorized ENERGEX Distributor www.hotelservicecorp.com |800‐523‐1829 Ext. 101 HSC T&CS Revision Date 10/18