1. Orders.Seller’sproposals to Buyer are valid for 30 days from issuance unless otherwise agreed to by Seller in writing. Orders may not be cancelled or modified, either in whole or part, without Seller’s express written consent. If Seller consents to any order modification or cancellation, it may impose an order modification or cancellation fee. All prices are as stated in Seller’s quote and specifically override any prices referenced in Buyer’s purchase order. Due to the volatility of the copper market and its direct impact on cost, Seller may withdraw these proposals if not accepted within ten days.The prices stated in this Agreement are in U.S. dollars and do not include transportation, insurance or any sales, use, excise or other taxes, duties, fees or assessments imposed by any jurisdiction.
2. Title, Risk of Loss and Acceptance of Goods. Subject to the security interest reserved to Seller, possession and risk of loss for all goods shall pass to Buyer upon Seller’s delivery of such goods to any carrier, common or otherwise. Title to such goods shall not pass until they have been fully paid for by Buyer. Buyer shall inspect all goods immediately upon delivery for concealed damage. Buyer shall have been deemed to have accepted the goods and services as delivered within fifteen (15) business days of delivery unless Buyer shall notify Seller of any deficiency in writing. Confiscation or destruction of or damage to products shall not release, reduce or in any way affect the liability of Buyer. Notwithstanding the foregoing, any use of a product by Buyer, its agents, employees, contractors or licensees, for any purpose, after delivery thereof, shall constitute acceptance of that product by Buyer. In the event Buyer rejects or revokes acceptance of any products for any reason, all risk of loss and/or damage to such products shall nonetheless remain with Buyer unless and until the same are returned undamaged (or in the condition received by Buyer) at Buyer’s expense to such place as Seller may designate in writing. Cancellation or suspension of orders will be accepted by Seller only upon terms that will indemnify the Seller for liabilities and expenses incurred by Seller regarding such order and commitments made by Seller and which will provide for profit on work in process and for the contract value of goods completed and ready for shipment. Postponement of deliveries at Buyer’s request, if for a period of more than thirty (30) days, will not be made without Seller’s approval first being obtained. All postponements are subject to storage and handling charges. Delivery of goods shall be considered complete if final delivered quantities are within +/- 10% of order quantities. Seller has the option of either replacing defective goods or crediting Buyer for the purchase price of such goods. A new Purchase Order is required for replacement orders.
3. Invoices and Payment. Buyer agrees to pay Seller, upon receipt, the full amount of the invoice unless otherwise expressly agreed in writing. Buyer agrees to pay for all labor, materials, supplies, equipment, consumables, additional costs of bonds, insurance premiums, permits, fees, taxes, and any costs related to additional supervision, field, and/or office services provided by Seller to Buyer, Buyer’s representative or to any party at Buyer’s request. Buyer agrees further to pay, upon demand, a monthly finance charge of 1.5% (A.P.R. 18%) for unpaid invoiced amounts outstanding after thirty (30) days from the invoice date. Payment for projects involving paying time and materials will be Cash on Delivery (“COD”) or by Mastercard, VISA, American Express or Discover. A minimum restocking fee of 25% will be charged on all non-stock or special order items.
4. Limited Commercial Warranty. Seller shall provide to the original purchaser a limited warranty for each of Seller’s commercial grade products provided under this Agreement. Seller reserves the right to modify its limited warranty at any time in its sole discretion. Subject to exclusions noted below, Seller warrants that all products sold and services provided by Seller will be free of defects in material or workmanship. This warranty is expressly limited to the repair or replacement of product with the same or functionally equivalent product or component at Seller’s discretion, within a period of five (5) years from the date of delivery to Buyer. THIS WARRANTY IS VOID IN ANY CASE WHERE PRODUCTS ARE USED/INSTALLED IN A MANNER NOT CONSISTENT WITH THEIR DESIGNED USE.This warranty does not cover willful and malicious damage, damages inadvertently caused by the customer, damages caused by Acts of God or other Casualty. This protection plan shall begin upon final inspection date of such said specific project.Warranty service calls, to include troubleshooting and repairs to be completed Monday through Friday 9a.m. to 5p.m. EST. Warranty service calls outside of the normal service hours listed may be subject to emergency service call rates.The process to inspect and replace products under this Warranty shall take about five to seven weeks to complete. The Buyer will be responsible for the shipping costs related to the replacement; the depreciation of products and the electrician hourly rate (if the defect is not related to workmanship). The warranty start date for replaced products will be the original purchase date. This warranty does not cover lost or stolen products.
5. Limitation of Liability and Claims. SELLER’S AGGREGATE LIABILITY IN DAMAGES OR OTHERWISE SHALL IN NO EVENT EXCEED THE AMOUNT, IF ANY, RECEIVED BY SELLER HEREUNDER. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL LOSS OR DAMAGES OF ANY KIND, HOWEVER CAUSED, OR ANY PUNITIVE, EXEMPLARY OR OTHER DAMAGES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR PRODUCTS OR SERVICES FURNISHED BY SELLER MAY BE BROUGHT BY BUYER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUED.
6. Intellectual Property Rights. Except with respect to any product that Buyer has specifically contracted in writing with Seller to design or develop (and with regard to which such contract specifically provides that the Buyer is the owner of the related intellectual property rights), nothing herein shall be deemed to grant to Buyer any right, title or interest in or to any intellectual property rights (including any patent, copyright, trademark or other proprietary rights) and all such patent, copyright, trademark or other proprietary rights are expressly reserved by Seller.
7. Performance. Seller will make a reasonable effort to observe the dates specified herein or such later dates as may be agreed to by Buyer for delivery or other performance, but Seller shall not be liable for any delay in delivery or failure to perform due to acceptance of prior orders, strike, lockout, riot, war, fire, acts of God, accident, delays caused by any subcontractor or supplier or by Buyer, technical difficulties, failure or breakdown of machinery or components necessary for order completion, inability to obtain or substantial rises in the price of labor or materials or manufacturing facilities, curtailment of or failure to obtain sufficient electrical or other energy supplies, or compliance with any law, regulation, order or direction, whether valid or invalid, of any governmental authority or instrumentality thereof, or due to any circumstances or any causes beyond its reasonable control, whether similar or dissimilar to the foregoing and whether or not foreseen. As used herein, “performance” shall include, without limitation, fabrication, shipment, delivery, assembly, installation, testing and warranty repair and replacement, as applicable.
Buyer agrees that any delay in delivery or failure to deliver or perform any part of this Agreement shall not be grounds for Buyer to terminate or refuse to comply with any provisions hereof and no claim or penalty of any kind shall be effective against Seller for such delay or failure; provided, however, that if the delay or failure extends beyond six (6) months from the originally scheduled date either party may, with written notice to the other, terminate this Agreement without further liability for the unperformed part of this Agreement
8. Entire Agreement. This Agreement constitutes the entire agreement of the parties and supersedes all prior negotiations, proposals, agreements and understandings, whether oral or written, relating to the products to be purchased hereunder or otherwise relating to the subject matter of this Agreement. Any representation, warranty, course of dealing or trade usage not expressly contained or referenced herein shall not be binding on Seller.
9. Attorney’s Fees. In the event of default in payment of the purchase price or any part thereof, Buyer agrees to pay Seller’s expenses, including collection agency fees, reasonable attorney’s fees and other expenses incurred by Seller in enforcing payment thereof, including all expenses incurred in connection with any arbitration and/or judicial proceeding.
10. Jurisdiction, Venue and Waive of Jury Trial. This Agreement shall be construed, enforced and governed by and in accordance with the laws of the State of Florida. The parties hereby agree that all actions or proceedings arising directly or indirectly, from thisAgreement shall be litigated in courts having a situs within the State of Florida, County of Broward and the Buyer and Seller hereby consent and agree to such courts having exclusive jurisdiction of such litigation. Buyer and Seller knowingly, voluntarily and intentionally waive any right to trial by jury in any action or other legal proceeding arising out of this Agreement.
10. Arbitration. Any controversy or claim arising out of this Agreement or any alleged breach of this Agreement shall be resolved by means of binding arbitration before a single arbitrator in accordance with the then existing Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be held in Broward or Dade County, Florida. The arbitrator shall issue a reasoned award. Judgment upon the arbitrator’s award may be entered in any court having jurisdiction. The arbitration proceedings and arbitrator’s award shall be maintained by the parties as strictly confidential, except as is otherwise required by court order or as is necessary to confirm, vacate or enforce the award and for disclosure in confidence to the parties’ respective attorneys, tax advisors and senior management and to family members of a party who is an individual.
11. Assignment. Buyer shall not assign or transfer any rights or claims under this Agreement without the prior written consent of Seller, and any purported assignment made without such consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of the successors and permitted
12. Product Safety. Buyer shall comply fully with all applicable safety-related laws, rules and regulations of any governmental body having jurisdiction to regulate the manufacture, distribution or sale of items incorporating the products supplied by Seller. Buyer shall obligate all persons and entities buying such products from Buyer (other than end users) to comply with such industry standards, laws, rules or regulations applicable to such person or entity. Buyer shall defend and hold Seller harmless against any expense, loss, costs or damages relating to any claimed failure by Buyer to comply with such industry standards, laws, rules or regulations or from any bodily injury, illness or property damage resulting from products manufactured by Buyer which incorporate the products supplied by Seller.
13. Default and Termination. Buyer shall be deemed In material default if Buyer fails to pay any amounts when due hereunder, cancels or attempts to cancel this Agreement prior to delivery or refuses delivery or otherwise violates, fails or refuses to abide by or acknowledge thisAgreement, or threatens any of the foregoing or fails to pay Seller any sums due under any other agreement or otherwise. In the event of a material default by Buyer, Seller may, upon written notice to Buyer, (1) suspend its performance and withhold shipments, in whole or in part, (2) terminate this Agreement, (3) declare all sums owing to Seller immediately due and payable, and/or (4) recall products in transit, retake same and repossess any products held by Seller for Buyer’s account, without the necessity of any other proceedings, and Buyer agrees that all products so recalled, taken or repossessed shall be the property of Seller, provided that Buyer is given credit therefore. Exercise of any of the foregoing remedies by Seller shall not preclude exercise of any of the others, and neither the existence nor exercise of such remedies shall be construed as limiting, in any manner, any of the rights or remedies available to Seller under the Uniform Commercial Code or other laws. Buyer may only terminate for Seller’s material breach if Seller, after written notice received from Buyer, fails to cure within 30 days of such receipt of notice. Any termination by Buyer must be in writing. In the event of a termination by Buyer or Seller for any reason other than a material breach by Seller that Seller fails to cure, Buyer shall pay Seller termination charges consisting of all of Seller’s costs and expenses incurred in connection with Seller’s performance (including without limitation labor, material and overhead), all costs and expenses incurred as a result of termination, any of Seller’s other incidental damages and Seller’s expectation damages. Unless otherwise agreed to in writing, Seller has the option of either replacing defective goods or crediting Buyer for the purchase price of such goods. A new order is required for replacement orders.
14. Construction Lien. NOTICE TO OWNER: BUYER’S FAILURE TO PAY SELLER, AS A SUPPLIEROF MATERIALS CAN RESULT IN THE FILING OF A CONSTRUCTION’S LIEN ON THE REAL ESTATE PROPERTY PURSUANT TO F.S. § 713, ET SEQ.