1. Application of Terms. These Terms of Sale and Commercial Credit (“Terms”) apply to all sales of goods by City Electric Supply Company and its affiliates, including any entity which is under common control with City Electric Supply Company.
The Terms set forth in Section I apply to all purchases from Seller (as defined herein). The Commercial Credit Terms set forth in Section II are applicable to all purchases in which Seller chooses to extend credit and are subject to and intended to be construed in accordance with the Terms of Sale set forth in Section I. All reference in this document to “Seller” shall include City Electric Supply Company, and any subsidiary or affiliate thereof (including any division of the foregoing) whether or not performing any or all of the scope hereunder or specifically identified herein. All references to “Customer” shall include all parents(s), subsidiaries and affiliates of the entity purchasing goods from Seller. Seller and Customer may be referred to individually as a “Party” and collectively as “Parties”. This document constitutes a sales agreement respecting goods which Customer buys from Seller and a credit agreement respecting all extensions of credit by Seller to Customer. The Terms are collectively referred to from time to time herein as the “Agreement”.
2. Authorized Acceptance of Terms; Effect of Electronic Signatures. Each person, whether or not a natural person, who buys of goods from Seller is conclusively deemed to have accepted these Terms and represents that such person or an authorized representative or agent thereof has read them in full and binds such person thereto, and such person agrees that it is a Customer within the meaning of these Terms. In the event that electronic documents or electronic signatures are used in connection with any transaction between a Customer and Seller, no transaction or agreement shall be denied legal effect solely because any portion thereof, including any signature, is in electronic form. The natural person engaging in a transaction on behalf of a Customer represents that it is authorized to bind the Customer to the transaction and the Terms contained herein; Seller relies on such representation and reserves all rights, including the rights set forth in these Terms, against the person whose representation is false or fraudulent.
I. TERMS OF SALE
3. Shipping and Delivery; Passage of Title; Risk of Loss. When goods are delivered to Customer in Seller’s own vehicles, the F.O.B. point shall be Customer’s designated delivery site. In all other cases the F.O.B. point shall be Seller’s store or warehouse and all responsibility and costs of shipping and delivery beyond the applicable F.O.B. point shall be borne by Customer. Title and risk of loss shall pass to Customer at the applicable F.O.B. point, which for goods not delivered in Seller’s own vehicles shall be when Seller delivers the goods to the common carrier. Partial shipments are permitted at Seller’s discretion. Customer shall not export or re-export, directly or indirectly, all or any part of the goods or related technology obtained from Seller under these Terms except in accordance with applicable export laws and regulations of the U.S. Further, a Customer that is a non-U.S. company or citizen shall similarly limit any export or re-export activity to that which would be deemed compliant with U.S. export laws and regulations if performed by a U.S. company or citizen.
4. Acceptance. Customer shall inspect the goods upon receipt, and within two (2) business days after delivery, Customer must give notice to Seller of any claim for damages on account of nonconformance, condition, quality, damage, shortage or grade of the goods, and Customer must specify the basis of the claim in detail. Customer agrees that notice, to be reasonable, must be within (2) business days of delivery. Failure of Customer to comply with these conditions will constitute irrevocable acceptance of the goods by Customer. The fact that a party may accept or acquiesce in any course of performance under this sales agreement does not affect the meaning of this agreement, even though the party accepting or acquiescing knows of the nature of the performance and has reasonable opportunity to object to it.
5. Changes to Orders; Returns. After acceptance of an order, any change in product specifications, quantities, destinations, shipping schedules, or any other aspect of the scope of goods must be agreed to in writing by Seller, and may result in a price and delivery adjustment by Seller. No credit for goods returned by Customer shall be given without Seller’s written authorization. All returns are subject to a restocking charge. Without limitation of other remedies, Customer shall be liable to Seller for the price of goods identified to the contract if the Seller determines, in its discretion, that the circumstances reasonably indicate that an effort to resell them will be unavailing and for the price of goods specially manufactured for the buyer.
6. Charges. Prices on Seller’s website, catalogs or in Seller quotes are subject to change without notice, and all such prices expire and become invalid if not accepted within 10 calendar days from the date of issue, unless otherwise noted by Seller in writing. Price extensions if made are for Customer’s convenience only, and they, as well as any mathematical, stenographic or clerical errors, are not binding on Seller. Prices shown do not include any sales, excise, or other governmental tax or charge to be remitted by Seller. Any taxes now or hereafter imposed upon sales or shipments will be added to the purchase price, and Customer shall pay any such tax or provide Seller with an acceptable tax exemption certificate. All prices and other terms provided to Customer shall be kept confidential by Customer except to the extent that Customer is required by law to disclose the same. Seller shall invoice Customer upon and for each shipment and/or transfer of possession for which payment is immediately due.
7. Warranty; Limitation of Liability. Seller warrants that the goods sold hereunder are new and free from substantive defects in workmanship and materials, and that the goods supplied shall be of fair average quality in the trade and within the description of the contract. If the goods do not and cannot be made to conform to the warranty, seller shall either furnish substitute goods with the same warranty or, at the sole option of seller, all payments made or security given on the purchase price shall be refunded to Customer. The exercise of either of the options stated above shall constitute a settlement in full of all claims of Customer for damages, and shall operate as a release of all claims for damages of both Customer and seller arising out of this agreement. No other warranty, express or implied, is made by Seller, and none shall be imputed or presumed. SELLER MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO GOODS SOLD UNDER THIS AGREEMENT. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES THAT EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. SELLER ASSUMES NO RESPONSIBILITY WHATSOEVER FOR SELLER’S INTERPRETATION OF PLANS OR SPECIFICATIONS PROVIDED BY CUSTOMER, AND CUSTOMER’S ACCEPTANCE AND USE OF GOODS SUPPLIED HEREUNDER SHALL BE PREMISED ON FINAL APPROVAL BY CUSTOMER OR CUSTOMER’S RELIANCE ON ARCHITECTS, ENGINEERS, OR OTHER THIRD PARTIES RATHER THAN ON SELLER’S INTERPRETATION. To the extent not prohibited by applicable law, in no event, whether in contract, warranty, indemnity, tort (including, but not limited to, negligence), strict liability or otherwise, arising directly or indirectly out of the performance or breach of these terms, shall Seller be liable for (a) any special, incidental, indirect, punitive, consequential or similar damages such as loss of use, lost profits, loss of use, lost data, or for any damages or sums paid by Customer to third parties, attorneys’ fees or delay damages, even if such damages were foreseeable or caused by Seller’s breach of this agreement, (b) any claim that properly is a claim against the manufacturer, or (c) any amount exceeding the amount paid to Seller for goods furnished to Customer which are the subject of such claim(s). Customer waives any and all negligence claims it may seek against Seller arising in connection with performance or nonperformance under this Agreement.
8. Seller shall not be liable for delay in delivery or default resulting from any cause beyond Seller’s reasonable control, including, but not limited to, governmental action, strikes or other troubles, fire, damage or destruction of goods, wars (declared or undeclared), acts of terrorism, manufacturers’ shortages, availability of timeliness of transportation, materials, fuels, or supplies, and acts of God (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event: (a) the time for Seller’s performance shall be extended reasonably and the Parties shall adjust all affected dates accordingly; (b) the purchase price shall be adjusted for any increased costs to Seller resulting from such Force Majeure Event; and (c) Customer shall not be entitled to any other remedy.
9. Jurisdiction; Venue; Governing Law. Customer expressly agrees jurisdiction and venue for any legal action related to or arising under this Agreement may be in the state or federal courts of: (a) the location where this Agreement is signed, (b) the location where the materials at issue were purchased, (c) the location where the materials were incorporated, (d) the location where payment should be remitted, (e) Lake County, Florida, or (e) as otherwise provided by law with Seller having the sole right to choose among any of these jurisdictions and venues for any dispute related to or arising under this Agreement. This Agreement shall be governed and construed exclusively by the provisions contained within this Agreement and in accordance with the laws, including the Uniform Commercial Code, of the jurisdiction in which Seller chooses to bring a particular action without resort to the principles of conflicts of law, and any right to object to such venue or to assert the inconvenience of such forum is thereby waived. The rules or laws described by the UN Convention on Contracts for the International Sale of Goods is specifically excluded.
10. Miscellaneous. No modification or alteration of these Terms shall result from Seller’s shipment of goods following receipt of Customer’s purchase order or any other document containing additional, conflicting or inconsistent terms. Conditions, understandings, or agreements other than those stated herein, and all prior proposals and negotiations are merged within and superseded by this Agreement. These Terms shall be binding upon the parties and their respective heirs, executors, administrators, successors, assigns and personal representatives. This writing shall prevail over any inconsistent terms contained within Customer’s purchase order or other documents provided by Customer even if acknowledged by seller. Additional or different terms and conditions that alter or modify these Terms are expressly rejected by Seller and are not binding upon Seller unless an authorized representative of Seller specifically accepts the additional or different terms or conditions in writing. Seller specifically rejects any contrary Terms contained in any lien waiver document where an authorized representative is coerced into endorsing in order to receive payment for a debt, especially with reference to indemnification and warranties beyond that which are provided in this Agreement. If Customer fails to comply with these Terms, Seller may terminate or restrict any order immediately upon notice to Customer. Customer certifies that it is solvent and that it will advise Seller immediately if it becomes insolvent.
11. Waiver of Jury Trial. The parties waive trial by jury in any action to enforce this Agreement.
12. Severability. If any one or more of the provisions contained herein is held to be unlawful, or unenforceable, the provision will not affect the enforceability of any other provision of this Agreement, which shall remain in full force and effect. In such event, this Agreement shall be construed as if the illegal or unenforceable provision had not been included in the Agreement.
13. Insolvency; Change in Control. If Customer fails to comply with these Terms, Seller may terminate or restrict any order immediately upon notice to Customer. Customer certifies that it is solvent and that it will advise Seller immediately if it becomes insolvent. Customer agrees to send Seller written notice of any changes in the form of ownership of Customer’s business within 5 days of such changes. Customer and Seller are the only intended beneficiaries of this document and there are no third party beneficiaries. The Terms shall survive termination, cancellation and completed performance of this Agreement as long as necessary to allow the aggrieved party to fully enforce such clauses as contained therein.
II. TERMS OF COMMERCIAL CREDIT
1. The Customer certifies the information contained in any credit application agreement submitted to Seller is correct, that it is submitted for the purpose of obtaining credit and will be relied upon for that purpose.
2. Customer shall pay all charges on terms of Net 16th of month, unless otherwise indicated in writing, payable in United States of America (“U.S.”) dollars, and becomes delinquent on that date. Delinquent accounts shall bear simple interest at the rate of 1.5% per Month, or the maximum rate allowable by law. If Customer is in arrears on any invoice, Seller may withhold further delivery of goods until all arrearages are brought current.
3. Failure to make timely payment of amounts due hereunder shall relieve Seller of any obligation to extend credit. Credit shall be limited to such amount as Seller shall, in its sole discretion, determine, including no credit. Credit limits may be increased or decreased at any time at Seller’s discretion.
4. Seller may extend credit under the terms contained herein until Customer advises Seller in writing of Customer’s desire to terminate this Agreement and close any open account(s).
5. Customer authorizes Seller to obtain commercial and/or consumer credit reports from credit reporting agencies. Subsequent credit reports may be requested or utilized in connection with update, renewal, or extension of the credit for which this application is made.
6. If Customer decides to close any of its accounts, Customer shall give Seller written notice thirty (30) days in advance. The written notice shall be sent to Seller’s local Credit Department, and such notice must reference the account(s) being closed by name and account number.
7. Seller reserves all rights and remedies for nonpayment, breach or default hereunder.
8. Customer shall indemnify, defend, and hold Seller, its officers, directors, employees and agents harmless from any and all costs (including attorneys’ and accountants’ fees and expenses, Court costs, and any other legal expense), liabilities and damages resulting from or related to any third party claim (including Customer’s employees), complaint and/or judgment arising from Customer’s use of any goods furnished hereunder, as well as any negligent, intentional, or tortious act or omission of Customer, including the misrepresentation or inaccurate job/project specific information intended to provide Seller with additional security in the site where materials are delivered, incorporated or consumed through any prevailing lien or bond statutes, a consideration for which credit may be extended, or any material breach by Customer of these terms.
9. Where credit is to be extended, and at the time the order is placed, Customer will provide accurate and complete information to enable Seller to preserve any and all rights to encumber the job, property, real estate, or bond on the project, where Seller’s materials are to be incorporated, by serving any such necessary Pre-Lien Notice in accordance with the lien law requirements of the State where the project is located. Customer’s failure to provide accurate or complete Job or Project information at the time the order is placed will constitute a material breach of this Agreement and Seller shall have a cause of action against Customer for all damages sustained as a result of such breach, in addition to all rights and remedies provided by this Agreement, including those available under all applicable state or federal lien statutes.
10. This Agreement, as amended in writing by other documents supplied by Seller from authorized employees from time to time, constitutes the entire agreement between the parties.
11. All sales to Customer are subject to these Commercial Credit Terms and Terms of Sale (“Terms”), and these Terms shall be binding upon the parties and their respective heirs, executors, administrators, successors, assigns and personal representatives. This writing shall prevail over any inconsistent terms contained within Customer’s purchase order or other documents provided by Customer even if acknowledged by Seller. Additional or different terms and conditions that alter or modify these Terms are expressly rejected by Seller and are not binding upon Seller unless an authorized representative of City Electric Supply Company specifically accepts the additional or different terms or conditions in writing. Seller expressly rejects any contrary Terms contained in any lien waiver document where an authorized representative is coerced into endorsing in order to receive payment for a debt, especially with reference to indemnification, and any warranties beyond that which are provided in this Agreement.
12. Customer agrees Seller’s acceptance of less than full invoice amount shall not be construed as a waiver of Seller’s right to collect the remainder due.
13. In any action to enforce the terms of this Agreement, or to collect any moneys owed or claimed to be owed to Seller, the prevailing party shall be entitled to reimbursement of its Expenses, Accountancy Fees, Court costs and reasonable attorneys’ fees by the non-prevailing party.
14. I HEREBY CERTIFY THAT I AM AUTHORIZED TO SUBMIT THIS APPLICATION ON BEHALF OF APPLICANT, I HAVE READ AND AGREE TO THESE TERMS. IF FOR ANY REASON THE EXECUTING INDIVIDUAL NOT AUTHORIZED TO BIND APPLICANT TO THESE TERMS, THE EXECUTING INDIVIDUAL WILL BECOME PERSONALLY LIABLE AND RESPONSIBLE AS PRIMARY APPLICANT.