General Terms and Conditions of Sale
GENERAL . These General Terms and Conditions of Sale (these “Terms”) govern the sale of goods by Electrical Equipment Company, a North Carolina corporation (“Seller”). These Terms apply to any purchase order, order acknowledgment (together with the corresponding quote), or any other order submitted via electronic transmission, e-commerce or other digital platform, or other means of communication issued by the buyer identified therein (the “Buyer”) and accepted by Seller (collectively, the “Accepted Order”). An Accepted Order and these Terms (collectively, this “Agreement”), together with any Bill & Hold Agreement (as defined below), comprise the entire agreement between Buyer and Seller regarding the sale of the goods described in the Accepted Order (the “Products”) and, unless otherwise agreed by Buyer and Seller, supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its order or such general terms and conditions; any general terms and conditions submitted by Buyer (including those attached to or included in the Accepted Order or purportedly incorporated therein by reference to an external website hosting such general terms and conditions) are hereby rejected by Seller and shall not become part of this Agreement. Fulfillment of the Accepted Order by Seller does not constitute acceptance of any of Buyer’s general terms and conditions and does not serve to modify or amend these Terms. In the event of any conflict between an Accepted Order and these Terms, these Terms shall control, unless the Accepted Order expressly includes acknowledgement from both Buyer and Seller that a specific provision of the Accepted Order should supersede these Terms.
CREDIT APPROVAL. Seller’s obligations under this Agreement are conditioned on Seller’s and, if applicable, its suppliers’, approval of Buyer’s creditworthiness. If at any point during the term of this Agreement, Buyer’s credit becomes unsatisfactory to Seller or its suppliers, Seller may (in addition to any other remedies available hereunder or at law or equity) terminate this Agreement upon notice to Buyer and without liability to Buyer.
PRICES. Unless otherwise agreed in writing by Buyer and Seller, the prices (“Prices”) for Products shall be as set forth in the Accepted Order. If an Accepted Order does not indicate a price, then the Price for the Products listed in such Accepted Order shall be Seller’s then standard list price. All Prices are exclusive of all sales, use, and excise taxes, and any other taxes, duties, charges, or tariffs of any kind imposed by any governmental authority on any amounts payable by Buyer (collectively, “Taxes”). Seller may, at any time, upon notice to Buyer (where reasonably practicable), increase the Prices due to any increase in any new or existing Taxes. Buyer shall pay any and all such Taxes. Any claimed tax exemption must be supported by proper documentary evidence delivered to Seller prior to Seller issuing its invoice. Prepaid shipping (if applicable) and storage fees (applicable to Bill and Hold Arrangements (as defined below)) will be billed to Buyer as a separate invoice item. All Prices and other monetary amounts referred to in this Agreement are in US Dollars ($), and all payments shall be made in that currency.
PAYMENT TERMS. Unless otherwise agreed, payment of the Prices for Products shall be due in full in advance of shipment. Seller may, in its sole and absolute discretion, extend trade credit terms to Buyer. Where Seller has extended credit to Buyer, terms of payment will be net 30 days from the date of invoice, unless otherwise agreed. The amount of credit extended to Buyer and/or terms of payment, may be changed, or credit suspended or withdrawn by Seller at any time upon written notice to Buyer. In any event, Seller may render partial invoices and require progressive payments or other forms of payment security. Seller may render invoices electronically. Payment must be made by ACH transfer, wire transfer, check, or other immediately available funds, unless otherwise agreed by Seller. If payment by credit card is permitted by Seller, payment by such method is subject to credit card validation and authorization, and Seller reserves the right to require Buyer to pay any credit card processing fees or similar expenses incurred by Seller to accept payment by credit card. Past due balances will bear interest, starting from the date payment was due, at a monthly rate of 1.5% or the maximum rate permitted by law (whichever is less). If Buyer fails to make full payment of amounts due under an Accepted Order by the applicate due date, Seller may (in addition to any other remedies available hereunder or at law or equity): (a) suspend performance in whole or in part; (b) terminate the applicable Accepted Order; and/or (c) terminate this Agreement. All payments due hereunder will be made without setoff or deduction of any kind. If Buyer’s account is placed with an attorney for collection, Buyer agrees to pay all costs of collection, including attorneys’ fees. If a judgment is obtained, interest shall continue at the maximum rate allowed by law until paid in full.
PURCHASE MONEY SECURITY INTEREST. As collateral security for the payment of the Price, Buyer hereby pledges and 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 all Products, 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 as such term is defined in the Uniform Commercial Code.
TITLE AND RISK OF LOSS; BILL AND HOLD ARRANGEMENTS. Notwithstanding anything in this Agreement to the contrary, title and risk of loss to the Products passes to Buyer upon either: (a) receipt of the Products by the first carrier for transport to Buyer, or (b) in the case of a Bill and Hold Arrangement (as defined below), upon the later of (i) Seller’s receipt of the Products at Seller’s facility or (ii) the full execution of the applicable Bill & Hold Agreement (as defined below). A “Bill and Hold Arrangement” is a separate arrangement pursuant to which Seller agrees to store the Products for a period of time at a Seller facility. A Bill and Hold Arrangement must be documented by a separate agreement to be entered into by Buyer and Seller (the “Bill & Hold Agreement”). In the event of any conflict between the terms and provisions of the Bill & Hold Agreement and those of any portion of this Agreement, the following descending order of precedence shall apply: (1) these Terms, (2) the Bill & Hold Agreement, and (3) the Accepted Order.
DELIVERY. Unless otherwise agreed by Seller in writing, all shipments will be FOB Seller’s facility (or Seller’s supplier’s facility in the event of a direct factory shipment). Subject to Section 20, the Products will be delivered within a reasonable time. Scheduled or stipulated shipping dates are approximate and based upon prompt receipt of all necessary information from Buyer and Product availability. Seller will not be liable for any loss or expense incurred by Buyer if Seller fails to meet the specified estimated delivery dates. Seller may, without liability or penalty, make partial shipments of the Products 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 the Accepted Order. Seller is not responsible for obtaining any authorization for the export or re-export of any Product or associated technology. In the event that the authorization for the export or re-export of any Product or associated technology is denied, Seller (and Seller’s supplier, if applicable) will be relieved of any further obligation to the sale or delivery of the Products.
ACCEPTANCE OF DELIVERIES. All shipments of Products shall be deemed accepted by Buyer unless Seller delivers Products that do not conform with this Agreement and Buyer provides Seller with written notice specifying such non-conformance (including shortages or defects) within five (5) days after Buyer’s receipt of the Products. If Seller delivers nonconforming Products to Buyer and Buyer notifies Seller within such five (5) day period, Part 6 of Article 2 of the Uniform Commercial Code as adopted in North Carolina shall govern the rights and obligations of the parties with respect to such nonconforming Products, subject to any separate agreement between the parties regarding the return or replacement of such nonconforming Products.
NO INSTALLATION OR MAINTENANCE. Buyer is fully responsible for installation and maintenance of all Products sold under this Agreement, including payment of all costs incurred in connection with any installation or maintenance. Seller shall have no obligation to install, maintain, support, or repair any Products unless otherwise agreed.
SUBSTITUTIONS AND CHANGES. Seller shall have the right to, without penalty, substitute Products using the latest superseding revision or series or equivalent Product having comparable form, fit and function. If Buyer wishes Seller to customize Products subject to an Accepted Order, Buyer may request customization to the Products by providing a written request to Seller. Seller (and its supplier) may, in its (or their) sole discretion, approve or reject such request. If Seller is willing to accept such request, Seller shall provide a written proposal to Buyer documenting any changes needed to the Accepted Order in order for Seller to achieve such customization, such as adjustment to Prices and changes to delivery timelines. If Buyer wishes to proceed, Buyer must accept such proposal in writing within five (5) business days after receipt. If Buyer accepts, the Accepted Order will be deemed amended to reflect the terms included in Seller’s proposal. Any such proposal that is not accepted by Buyer in writing within such five (5) business day period will be deemed rejected by Buyer; in such case, the Accepted Order shall remain binding on Buyer and Seller without amendment.
CANCELLATION. Buyer has no right to change or cancel an Accepted Order without the written consent of Seller. For the avoidance of doubt, Buyer may withdraw any purchase order or other order it issues to Seller at any time before such order is accepted by Seller. If Seller, in its sole discretion, permits Buyer to cancel an Accepted Order or a shipment of Products under an Accepted Order, Buyer shall pay to Seller on demand cancellation and restocking fees determined by Seller in its reasonable discretion, including reimbursement for incurred direct costs (“Cancellation Fees”). Cancellation Fees for custom Products, Products specifically manufactured or sourced to Buyer’s specification, or Accepted Orders requiring a commitment to obtain raw materials may be up to or equal the Price of the canceled Products. Seller may cancel any Accepted Order at any time by providing written notice to Buyer. Upon any such cancellation by Seller, Seller shall promptly return to Buyer any payment received by Buyer regarding the applicable Accepted Order.
REMEDY FOR BREACH. In addition to any other rights or remedies available to Seller at law or in equity, if Buyer breaches this Agreement, Seller may (a) cancel any open Accepted Orders and return to Buyer any amounts received by Seller for Products not delivered, less a reasonable administrative charge, or (b) refuse to deliver any Products that Buyer has ordered but that have not yet been shipped to Buyer (in which case Seller shall return to Buyer any amounts paid by Buyer for Products not shipped by Seller or its supplier, less a reasonable administrative charge).
RETURNS. Seller is an independent enterprise, purchasing and reselling the Products for Seller’s own account, and not as an agent of any product manufacturer or third-party supplier. As such, Seller is not authorized to commit or bind any product manufacturer or third-party supplier in any way, nor is any product manufacturer or third-party supplier authorized to commit or bind Seller in any way. Seller is not a general contractor regarding the sale of third-party branded services, acting only in the capacity of a permitted reseller of those services. Seller may, in Seller’s sole discretion, elect to assist Buyer in processing warranty claims and returns. Seller will notify Buyer of its election to assist with warranty claims by issuing Buyer a return material authorization (“RMA”). Seller has no responsibility for assisting Buyer without an RMA, and an RMA may be revoked at any time. Warranty claims and returns shall, at all times, remain subject to the original manufacturer’s warranties and policies. Buyer shall pay Seller all applicable fees and costs associated with the RMA.
WARRANTY. Buyer acknowledges that that Seller is a distributor and reseller of the Products and that Seller makes no warranties or representations to Buyer concerning the Products. Seller’s only responsibility to Buyer with regard to any Product sold by Seller to Buyer is Seller’s agreement hereby to pass through to Buyer all warranties provided by the manufacturers of the Products, if any, to the extent permitted by the applicable manufacturer. EXCEPT AS SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE, THE PRODUCTS ARE PROVIDED BY SELLER “AS IS” AND SELLER HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS OR TERMS, WHETHER EXPRESS OR IMPLIED BY STATUTE, TRADE USAGE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF SATISFACTORY QUALITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER INDIVIDUAL OR ENTITY ON SELLER’S BEHALF.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR INDIRECT DAMAGES, OR LOSS OF PROFITS, LOSS OF SALES OR BUSINESS, OR LOSS OF OR DAMAGE TO GOODWILL, IN EACH CASE HOWSOEVER ARISING IN CONNECTION WITH THIS AGREEMENT OR THE USE, OR INABILITY TO USE, ANY PRODUCT, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SELLER’S AGGREGATE CUMULATIVE LIABILITY FOR DAMAGES (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE) TO BUYER, OR TO ANY PERSON WHOMSOEVER, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS, EXCEED THE PRICE PAID BY BUYER TO SELLER FOR THE PRODUCTS ALLEGED TO GIVE RISE TO SUCH LIABILITY. ANY ACTION AGAINST SELLER MUST BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. THIS SECTION 15 SHALL EXTEND TO THE BENEFIT OF SELLER’S SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES AND SUPPLIERS AS THIRD-PARTY BENEFICIARIES.
INDEMNIFICATION. Buyer will indemnify, defend, and hold Seller and its respective directors, officers, employees and agents harmless against any and all damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by any of them in connection with any third-party suit, action, claim or proceeding arising out of or in connection with: (a) Buyer’s failure to comply with applicable laws, rules, or regulations, (b) Buyer’s breach of this Agreement or Buyer’s breach or alleged breach of any agreement between Buyer and any third party (including Buyer’s customers, if applicable), (c) the negligence or intentional misconduct of Buyer or its employees and agents, and (d) Buyer’s or its employees’, agents’, or customers’ misuse of the Products.
COMPLIANCE WITH LAW. 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 export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products by Buyer. Buyer assumes all responsibility for shipments of Products requiring any government import clearance.
CONFIDENTIAL INFORMATION. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, designs, plans, drawings, documents, data, customer lists, or information regarding pricing, discounts, rebates, or similar matters disclosed by Seller to Buyer in connection with the sale of the Products, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” is the confidential information of Seller, and may not be disclosed or copied by Buyer 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. This Section does not apply to information that: (a) was already in the public domain at the time of disclosure by Seller to Buyer; (b) was already known to Buyer at the time of disclosure, as shown by written evidence; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
INTELLECTUAL PROPERTY RIGHTS. The sale of Products hereunder does not convey any express or implied license under any patent, copyright, trademark or other proprietary rights owned or controlled by Seller or any of its suppliers, whether relating to the Products sold, the manufacturing process thereof, or any other matter. All rights under any such patent, copyright, trademark or other proprietary rights are expressly reserved by Seller. Furthermore, Buyer agrees not to infringe, directly or indirectly, any intellectual property rights of Seller or its suppliers with any combination or system incorporating a Product sold hereunder. Buyer will not challenge Seller’s or its suppliers’ title to such intellectual property including, without limitation, their trademarks, service marks, trade names, logos, designs, or slogans (collectively, the “Marks”), oppose any registration thereof, or challenge the validity or enforceability of this Agreement. Furthermore, Buyer will not register, or attempt to register, any trade name, trademark, service mark, design or domain name which, in whole or in part, incorporates or is confusingly similar to any of the Marks, without the prior written consent of Seller.
FORCE MAJEURE. Seller will have no liability under this Agreement to the extent that it or its suppliers are delayed, prevented or hindered in performing any of their obligations as a result of a Force Majeure Event (as defined below). In the event of delay, Seller’s performance date(s) (or that of Seller’s supplier, as the case may be) will be extended for a length of time as may be reasonably necessary to compensate for the Force Majeure Event. “Force Majeure Event” means any circumstance or occurrence beyond the reasonable control of Seller or its suppliers or impracticable under the law, regardless of whether such circumstance or occurrence was foreseeable, including without limitation and without limiting the generality of the foregoing, acts of God, acts, omissions, or orders by a governmental or public authority or requirements of law, acts or omissions of Buyer or other parties not under Seller’s or its suppliers’ direction and control, strikes, blockades, acts of terrorism, wars, riots, storms, earthquakes, explosions, fires, floods, epidemics, pandemics, natural disasters, manmade disasters, quarantine restrictions, supply chain shortages, delays in transportation, transportation embargoes, substantial increases in demand for the Products, substantial decreases in Seller’s suppliers’ production levels, or any other events, regardless of their dissimilarity to the foregoing, deemed to be impracticable under the law or beyond the reasonable control of Seller.
NO RELIANCE. Each party acknowledges that in entering into and performing this Agreement it does not do so on the basis of, and does not rely on, any statement or representation or warranty or understanding other than as expressly contained in this Agreement.
AMENDMENTS. Amendments and supplements to this Agreement must be made in writing and signed by both parties.
WAIVER. In no event will any delay, failure or omission of a party in enforcing, exercising or pursuing any right, claim or remedy under this Agreement be deemed as a waiver thereof, unless such right, claim or remedy has been expressly waived in writing.
GOVERNING LAW. This Agreement will, in all respects, including all matters of construction, validity and performance, be governed by the laws of the State of North Carolina, United States (excluding the United Nations Convention on Contracts for the International Sale of Goods), without regard to any conflicts of law principles which may result in the application of the laws of another jurisdiction.
VENUE. Any suit, action or proceeding arising in connection with this Agreement will be brought only in the state or federal courts sitting in Raleigh, North Carolina and the parties hereby expressly submit to the exclusive jurisdiction of such courts for the purpose of any such suit, action, or proceeding. Each party hereby irrevocably waives any objections which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement if brought in a state or federal court sitting in Raleigh, North Carolina, and hereby further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
ASSIGNMENT. Buyer may not assign, or delegate or subcontract its rights or obligations under this Agreement, either in whole or in part, without the prior written consent of Seller. Any attempted assignment, delegation or subcontract by Buyer in violation of this Section will be null and void and will constitute a material breach of this Agreement.
NOTICES. Notices and other communications given or made pursuant to this Agreement will be in writing and addressed to the parties at the addresses set forth on the Accepted Order or to such other addresses that may be designated by the receiving party in writing. All notices will be deemed effectively delivered: (i) if sent by certified or registered mail, on the date received, (ii) if sent by courier, on the date delivered, and (iii) if sent by email or other electronic means (with confirmation of receipt), on the date of receipt. If any term or provision of this Agreement is determined to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement.
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 Agreement including, but not limited to, the following provisions: Limitation of Liability; Indemnification; Governing Law; Venue and Survival.
