THESE TERMS AND
CONDITIONS APPLY WHEN WE SELL GOODS/SERVICES TO YOU.
Codale
Electric Supply, Inc. (“Seller”) is a distributor primarily engaged in the
business of selling third-party manufactured goods and providing certain limited
ancillary services (referred to in this paragraph as our “Traditional Sales”).
From time to time, Seller also provides, within premises owned, leased,
subleased, and/or licensed by Seller or its affiliates, certain more technical or
space or labor intensive services, such as storage, kitting, assembly, staging,
modification, and fabrication services, in each case, to the extent agreed to
in writing between Seller and its customer (referred to in this paragraph as our
“Warehousing Sales”). These Terms and
Conditions of Sale (“T&Cs”) govern both Traditional Sales and Warehousing Sales,
excluding Section 13, which only applies to Warehousing Sales. If there is a
conflict between Section 13 and the remainder of these T&Cs: (i) the remainder of these T&Cs shall
control for Traditional Sales; and (ii) Section 13 shall control for
Warehousing Sales.
1.
Governing Terms. By accessing, browsing, or otherwise using our
website, requesting a quote, establishing a line of credit, placing an order,
issuing a release, or accepting products or services, including Warehousing
Services, from Seller, you acknowledge and agree that all products and services
provided by or on behalf of Seller to you and/or your subsidiaries or
affiliates (collectively, “Customer”) shall be governed exclusively by: (i) these T&Cs; and (ii) the additional
terms of any credit application provided by Seller and executed by Customer
(each a “Credit Application”), which shall together control regardless of any
additional or conflicting legal terms and/or conditions contained on or
referenced in any quotation, order, acknowledgement, invoice, website, release,
correspondence, request, proposal, or other document or form issued by or on
behalf of Customer, including, but not limited to, at any time in the course of
dealing or performance, all of which are hereby rejected and deemed void and of
no force or effect. Seller’s acknowledgment and/or acceptance of an order shall
not be deemed an acceptance of any such other terms and/or conditions or a
waiver of the provisions hereof; instead, these T&Cs may only be modified,
waived, supplemented, or superseded with the express prior written consent of
an authorized officer of Seller (i.e., with title of Vice President or
President or their designee). While the terms and conditions set forth
in these T&Cs and a Credit Application are intended to supplement one
another, in the event of a conflict between the terms and conditions set forth
in these T&Cs and a Credit Application (if any), the terms and conditions
that are more onerous on Customer, as determined by Seller in its sole
discretion, shall control. Notwithstanding the foregoing, Seller reserves
the right, in its sole discretion, to periodically revise these T&Cs on our
website without further notice. Seller reserves the right to accept or reject
any order.
2.
Payment Terms. Payments due are owed on the 25th
day of the month following the date of statement (the “Payment Date”) unless
otherwise expressly agreed by Seller and Customer in writing; provided,
however, Seller may, in its sole discretion, require full payment in cash
before order entry, shipment, or delivery. Payments not received when due will
be subject to a late fee of 1.5%, or the maximum lawful rate, whichever is
lower, of the outstanding invoice balance for each 30-day period or portion
thereof past due. If Customer does not accompany its payment(s) with express
remittance advice directing specific application of its payment(s) to a certain
invoice(s), Seller may apply Customer’s payment(s) to any unpaid invoice then
due and owing. All costs of collecting
monies due from Customer, including, but not limited to, legal expenses, legal
interest, attorneys’ fees and collectors’ expenses, shall be paid by Customer
to Seller upon demand. When Seller deems itself insecure with respect to
Customer’s ability to pay, Seller may, in its sole discretion: (a) withhold,
defer, or cancel shipments and/or orders; (b) require cash in advance; and/or
(c) demand immediate payment of all amounts then owed and pursue collection
actions (including attorneys’ fees and costs of collection). Seller may also
impose, revoke, or revise Customer’s credit limits, if any, at any time and for
any reason. Customer agrees to give Seller current credit information, current
annual financial statements, and proper authorizations for Seller to request
financial information on Customer (including its subsidiaries and affiliates)
from third parties, in each case, within five (5) days of request from Seller
as a condition to beginning and/or continued credit extension or for any other
reasonable purpose. All amounts and payments are in U.S. dollars. Seller may
set-off and/or deduct for any sums owed by Customer (including its subsidiaries
and affiliates). Customer has no right to withhold or set-off amounts against
Seller or its affiliates.
3.
Returns. Orders that were factory special orders or
otherwise fabricated and altered to accommodate Customer are not returnable;
otherwise, returns will be accepted prior to the Payment Date if prior
authorization is obtained from Seller, which authorization shall be in Seller’s
sole discretion, and only if the product is in resalable condition and in the
original, undamaged manufacturer’s package with sales receipt or invoice.
Credit will be issued, if at all, based on Customer’s purchase price for the
returned product less any vendor restocking charges, freight, insurance, and
other expenses of disposal.
4.
Deliveries. Customer shall accept partial or pro rata
deliveries in commercial units as full performance under Customer’s order if
Seller is unable to fill Customer’s entire order. All goods shall be shipped FCA
SHIPPING POINT, prepaid and billed, unless otherwise agreed by Seller in
writing. Title and risk of loss pass to Customer on tender of delivery to the
carrier. If goods are damaged in transit, Customer’s sole recourse is to file a
claim with the carrier. Customer understands that delivery dates are estimates
only and Seller shall not be liable for any late or delayed delivery.
5.
Warranties and Disclaimer. Customer
acknowledges that Seller is a distributor and not a manufacturer and that
Seller is not, except as otherwise expressly provided in Section 13 below,
responsible for the design, fabrication, or manufacture of any materials,
equipment, tools, or other goods provided by or on behalf of Seller, including
for any defects therein. Seller is also not liable for defects in information,
labeling, instructions, or packaging provided by the manufacturer or other
secondary sources. Any warranty issued by the manufacturer shall be solely that
of the manufacturer and not of Seller. Seller warrants good title to Customer
and otherwise Seller shall assign to Customer, effective upon transfer of
title, all assignable warranties of the manufacturer. Seller authorizes
Customer to make or settle any claims under such manufacturer’s warranties
directly with any such manufacturer. Each jurisdiction’s laws, regulations,
codes, and standards may vary regarding product labeling, warnings,
instructions, specifications, manufacture, and installation, as well as
regarding construction, zoning, and/or use of products for a specific purpose;
thus, Customer agrees that certain products may not be appropriate for all
areas or applications and Customer hereby agrees that Customer is solely
responsible for ensuring proper compliance with all such laws, rules,
regulations, codes, and standards. Customer shall comply with all applicable
laws, rules, codes, standards, and regulations including, but not limited to,
those concerning exports, imports, anti-corruption, anti-bribery, child labor,
affirmative action, conflict minerals, trade, economic or financial
restrictions or trade embargoes and any amendments thereto (collectively, the
“Laws”) imposed by any applicable governmental authority, including, where
applicable, the United States and the European Union. Customer agrees to indemnify,
defend, and hold harmless Seller, for any breach of Laws by Customer or its
affiliates, subsidiaries, officers, directors, managers, shareholders, members,
employees, contractors, or agents. Customer agrees that it shall not, except as
otherwise permitted under applicable Laws, transship, re-export, or otherwise
divert goods purchased from Seller. If applicable, Customer undertakes to
timely provide all information and documentation necessary for export, shipment
and import. Seller shall not be liable, and Customer shall hold Seller
harmless, for delays or any other losses resulting from Customer’s failure to
timely provide accurate information and documentation, export/import reviews,
or any related permitting procedures. To the extent permitted by law, Customer
shall, promptly upon becoming aware, provide to Seller details of any claim,
action, suit, proceedings or investigation against it with respect to the Laws
brought by any enforcement authority. In the event that Seller should believe,
acting in good faith, that Customer has violated, or is under investigation for
violating, any Laws, or if Customer is identified on any applicable sanctions
list, Seller shall have the immediate right to terminate its relationship
and/or any contract with Customer without liability.
EXCEPT
FOR THE WARRANTIES OF TITLE ABOVE, SELLER MAKES NO WARRANTY, EXPRESS OR
IMPLIED, AND DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR NON-INFRINGEMENT,
ANY WARRANTY AGAINST DEFECTS IN DESIGN, MATERIALS OR WORKMANSHIP, AND ANY
WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF
PERFORMANCE. CUSTOMER’S EXCLUSIVE REMEDIES AGAINST SELLER FOR BREACH OF
WARRANTY ARE REPAIR OR REPLACEMENT OF GOODS, REPERFORMANCE OF SERVICES, OR
CREDIT OF THE PURCHASE PRICE PAID, AT SELLER’S OPTION, WHICH MAY ONLY BE
EXERCISED WITHIN ONE (1) YEAR OF PERFORMANCE (FOR SERVICES) OR SHIPMENT (FOR
GOODS). SELLER’S OBLIGATIONS UNDER THIS SECTION SHALL BE VOID UNLESS CUSTOMER
PROVIDES SELLER WITH WRITTEN NOTICE OF THE NON-CONFORMITY IN THE GOOD OR
SERVICE WITHIN THIRTY (30) DAYS OF DISCOVERY.
6.
LIMITATIONS OF LIABILITY. TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES AGREE THAT IN NO EVENT SHALL
SELLER BE LIABLE TO CUSTOMER OR ITS OWNERS OR AFFILIATES, OR ITS/THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CUSTOMERS, AGENTS, CONTRACTORS,
ASSIGNEES, OR REPRESENTATIVES, FOR: (A) ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY,
PUNITIVE, LIQUIDATED, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING, WITHOUT
LIMITATION, FOR LOSS OF PROFITS, USE, TIME, DATA, OR INCOME, WHETHER IN
CONTRACT, TORT, OR OTHERWISE RESULTING FROM ITS PERFORMANCE, NON PERFORMANCE,
OR DELAY HEREUNDER, AND WHETHER OR NOT SELLER HAD NOTICE OF THE POSSIBILITY
THEREOF; AND/OR (B) CLAIMS ARISING FROM ORDINARY WEAR AND TEAR, MISUSE, ABUSE,
MISREPAIR, MISAPPLICATION, MODIFICATION, UNAUTHORIZED COMBINATION, IMPROPER
SELECTION, FAILURE TO MAINTAIN, AND/OR IMPROPER INSTALLATION OF GOODS.
7.
SELLER’S MAXIMUM LIABILITY. TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER EXPRESSLY AGREES THAT UNDER NO
CIRCUMSTANCE SHALL SELLER’S TOTAL LIABILITY TO CUSTOMER EXCEED THE AMOUNT PAID
FOR THE GOOD(S) OR SERVICE(S) GIVING RISE TO THE CLAIM(S) AT ISSUE.
8.
Governing Law; Limitations; Dispute Resolution. SOME STATES DO
NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF
CERTAIN DAMAGES. IF THESE LAWS APPLY, SOME OR ALL OF THE ABOVE DISCLAIMERS,
EXCLUSIONS, AND/OR LIMITATIONS MAY NOT APPLY AND OTHER RIGHTS MAY BE AVAILABLE.
The validity, interpretation, and performance hereof, and any dispute connected
herewith, shall be governed and construed in accordance with the laws of the
State of Utah, without regard to its conflict of laws principles. The
provisions of the Uniform Commercial Code as adopted by the State of Utah shall
apply, with no application of the 1980 United Nations Convention on Contracts
for the International Sale of Goods. The parties shall exercise their best
efforts to resolve by negotiation any and all disputes, controversies, or
differences arising out of or relating to these T&Cs or the goods or
services provided by or on behalf of Seller to Customer in connection herewith.
All disputes, controversies or differences between the parties that are not
settled by negotiation shall be decided by litigation in the appropriate State
or Federal Courts located in Utah. Notwithstanding the foregoing, any legal
action by Customer concerning these T&Cs and/or any goods or services
provided by or on behalf of Seller must be commenced within one (1) year after
the cause of action has arisen.
9.
Taxes and Other Governmental Amounts. Customer shall
pay all taxes, duties, tariffs, import fees, export fees, penalties, and
similar charges levied by any government authority or agency in connection with
goods and/or services provided by or on behalf of Seller to Customer. Unless
otherwise expressly agreed by Seller in writing, such charges are not included
in the price of goods or services and will be added to amounts due by Customer.
Customer is responsible for all additional taxes, fees, tariffs, duties, charges,
and penalties from taxing or other governmental authorities or agencies, and
all legal expenses incurred by Seller, where arising due to changes in such
amounts between the date of order and shipping or from incorrect or incomplete
documentation or other information furnished by or on behalf of Customer.
10. Force Majeure. Seller shall not be liable
for any delay, impairment, or prevention of Seller’s performance, in whole or
in part, due to any event, circumstance, or occurrence that is not within
Seller’s control, including, but not limited to, acts of God, labor
disruptions, acts of war, acts of terrorism (actual or threatened),
governmental decrees or controls, imposition of or changes to tariffs or
duties, changes to commodity markets, insurrections, epidemics, quarantines,
shortages, communication or power failures, fires, accidents, explosions,
inability to procure or ship products or obtain permits or licenses, inability
to procure supplies or raw materials, severe weather, catastrophic events, or
any other event, circumstance, or cause beyond Seller’s control within the
normal conduct of its business (collectively, “Force Majeure”). If Seller’s
performance is so delayed, impaired, or prevented by Force Majeure, Customer
agrees that Seller may, at Seller’s option: (i) suspend or terminate
performance; and/or (ii) increase pricing and/or schedules for delivery or
performance, in each case, without liability or penalty to Seller.
11. Hazardous Substances. Customer
acknowledges that Seller has neither created nor contributed to the creation or
existence of any hazardous or otherwise dangerous substances or conditions at
Customer’s or its client’s sites, and Seller’s compensation hereunder is not
commensurate with the potential risk of injury or loss that may be caused by
exposure to, contamination by, or the presence of such substances or
conditions.
12. Product-Specific Clauses.
(a) ELECTRONIC AND
PHOTOGRAPHIC CLEANING FLUIDS CUSTOMERS — It is a violation of federal law to
sell, distribute, or offer to sell or distribute any chlorofluorocarbon (CFC)
containing cleaning fluid for electronic and photographic equipment or aerosol
hydrochlorofluorocarbon (HCFC) containing cleaning fluid for electronic and
photographic equipment to anyone who is not a commercial user of this product.
The penalty for violating this prohibition can be up to $25,000 per unit sold.
Customers purchasing such products must present proof of their commercial
status in accordance with 40 CFR 82.68(a) or (c). A "Commercial
User," as defined in the regulation, means a person that uses the product
in the purchaser's business, or sells it to another person and has one of the
following identification numbers: (i) a Federal employer identification number;
(ii) a State sales tax exemption number; (iii) a Local business license number;
or (iv) a Government contract number.
(b) MOLD RELEASE
AGENT CUSTOMERS – It is a violation of federal law to sell mold release agents
containing hydrochlorofluorocarbon (HCFC) as propellants to anyone, except for
use in applications where no other alternative except a class I substance is
available. The penalty for violating this prohibition can be up to $25,000 per
unit sold.
(c) WASP AND HORNET
SPRAY CUSTOMERS – It is a violation of federal law to sell or distribute wasp
and hornet sprays containing hydrochlorofluorocarbon (HCFC) as solvents to
anyone, except for use near high-tension power lines where no other alternative
except a class I substance is available. The penalty for violating this
prohibition can be up to $25,000 per unit sold.
(d) REFRIGERANT
CUSTOMERS — Effective November 14, 1994, in accordance with the Federal Clean
Air Act, sale of class I (CFC) and class II (HCFC) refrigerant will be
restricted to resale purchases and/or to certified professional service
technicians. To purchase regulated refrigerant products, Customer must present
a certification card or sign a statement of resale to complete the purchase.
(e) OSHA HAZARDOUS
SUBSTANCE & CALIFORNIA PROPOSITION 65 PRODUCT INFORMATION— MSDS for
OSHA-defined hazardous substances are available at your local Seller branch, or
by contacting Seller's U.S. corporate headquarters. Seller makes no warranty
with respect to the accuracy of the information or the suitability of the
recommendations in the MSDS, all of which are provided by the manufacturers at
issue, and, to the maximum extent permitted by applicable law, Seller disclaims
any and all liability to Customer or any user or consumer with respect thereto.
Proposition 65 is a California law requiring the state to maintain a list of
chemicals that may cause cancer, birth defects, or reproductive harm. There are
over 850 listed chemicals and Seller will attempt to provide a reasonable
warning before potentially exposing Californians to such chemicals, but
Customer acknowledges and agrees that Seller is a distributor and not a
manufacturer of such goods and that Seller thus makes no warranty with respect
to the accuracy, reasonableness, or suitability of the information or warnings
provided in connection therewith, it being understood and agreed that such
information and warnings are provided by the manufacturers at issue. Thus, to
the maximum extent permitted by applicable law: (i) Seller disclaims any and all
liability with respect thereto; and (ii) Customer releases Seller and its
parents and affiliates from and for any and all claims, fines, penalties, and
damages arising from or in connection therewith, it being agreed that
Customer’s sole recourse under Proposition 65 shall be against the manufacturer
at issue. To learn more about Proposition 65, please visit www.oehha.ca.gov.
(f) MATERIALS OF
TRADE — Customer represents that if it is purchasing goods as its
"materials of trade" as defined in the Hazardous Materials
Regulations in Title 49 of the Code of Federal Regulations, that the goods will
be used in direct support of its business, which is not transportation, and
that such goods shall not be resold or transported in a vehicle other than one
owned by itself.
13. Warehousing Terms and Conditions. THIS SECTION SHALL ONLY APPLY WHEN AND TO THE
EXTENT Seller is providing, within premises owned, leased, subleased, and/or
licensed by Seller or its affiliates (as applicable, the “Space”), storage,
kitting, assembly, staging, modification, fabrication and/or related services
(COLLECTIVELY, “WAREHOUSING SERVICES”) involving EQUIPMENT, INVENTORY,
MATERIALS, TOOLS, AND/OR OTHER GOODS THAT ARE OWNED BY CUSTOMER OR A
THIRD-PARTY THAT HAS AUTHORIZED CUSTOMER TO POSSESS AND PROVIDE SAME TO SELLER
FOR THE PROVISION OF WAREHOUSING SERVICES (COLLECTIVELY, “WAREHOUSED GOODS”). The
scope, duration, and extent of the Warehousing Services, as well as the
quantities and descriptions of the Warehoused Goods and, except as otherwise
set forth in this Section, the commercial (i.e., non-legal) terms associated
therewith, shall be agreed to in writing between Customer and Seller (e.g.,
through a Quote or Proposal from Seller that is accepted by Customer). This Section shall be read to compliment and
supplement the other sections of these T&Cs, which shall also apply to
Warehousing Services, but with the provisions of this Section controlling over
any conflicting provisions in any other Section(s) of these T&Cs solely
when and to the extent concerning Warehoused Goods and/or Warehousing
Services. Accordingly, solely with
respect to the Warehoused Goods and/or Warehousing Services:
(a) Customer Warranties. Customer warrants
that: (i) it owns and has good and clear
title to the Warehoused Goods or, if a third-party owns the Warehoused Goods,
is otherwise entitled to possess and provide same to Seller for the provision
of Warehousing Services; and (ii) the Warehoused Goods are non-hazardous,
non-explosive, and not highly flammable and will not require refrigeration or
other specialized storage unless otherwise expressly agreed by Seller in
writing.
(b) Rates for Warehousing Services. Rates and charges for Warehousing Services may be
changed from time to time by: (i) Seller’s provision of at least thirty (30)
days’ written notice to Customer; or (ii) the mutual written agreement of the
parties. Unless otherwise agreed in writing, rates for Warehousing Services
shall cover only Seller’s reasonable and ordinary labor involved in receiving
the Warehoused Goods at the Space, placing the Warehoused Goods into storage in
the Space (if applicable), and returning Warehoused Goods to the loading door
or dock of the Space for pick-up by the Customer or its carrier. Unless
otherwise agreed in writing, Customer shall be solely liable for all shipping,
packaging, cargo insurance, and other charges, as well as any demurrage and/or
detention charges incurred in connection with loading, unloading, packaging,
receipt, and/or delivery of the Warehoused Goods. Customer shall reimburse
Seller on demand for all other costs incurred by Seller in connection with
performing the Warehousing Services, including non-routine labor and other
special services (i.e., other than ordinary handling and storage) at Seller’s
then prevailing rates, which shall include reasonable overhead and profit.
(c) Warehousing
Services Warranties; Disclaimer and Exclusive Remedies. Seller warrants that it will perform the
Warehousing Services with a reasonable degree of care. Claims for breach of
such warranty must be submitted to Seller in writing, along with photographs
and other reasonable supporting documentation, no more than three (3) business
days after Customer first becomes aware or first reasonably should have become
aware of such claim, but in no event more than ten (10) calendar days after the
conclusion of the Warehousing Service(s) at issue. Seller’s good faith
determination of the validity of any such warranty claim shall control and
Customer shall comply with Seller’s instructions regarding the use, return, and/or
disposal of any such Warehoused Goods as part of the warranty process. EXCEPT
AS EXPRESSLY PROVIDED IN THIS SUBSECTION IMMEDIATELY ABOVE, SELLER MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, RESPECTING WAREHOUSED GOODS OR WAREHOUSING
SERVICES, AND SELLER SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY
USAGE OF TRADE, OR COURSE OF DEALING OR PERFORMANCE. CUSTOMER’S EXCLUSIVE
REMEDIES FOR BREACH OF SUCH LIMITED WARRANTY ARE REPAIR OR REPLACEMENT OF THE
WAREHOUSED GOOD(S), CORRECTION OR RE-PERFORMANCE OF THE WAREHOUSING SERVICE(S),
OR REFUND OR CREDIT FOR THE ORIGINAL PURCHASE PRICE PAID BY CUSTOMER TO SELLER
FOR THE WAREHOUSED GOOD(S) AND/OR WAREHOUSING SERVICE(S) AT ISSUE, AT SELLER’S
OPTION.
(d) Title and
Risk of Loss; Care, Custody, and Control.
Title to and ownership of the Warehoused Goods shall, as between
Customer and Seller, remain exclusively with Customer. Except to the extent of
Seller’s limited warranty and exclusive remedy obligations, Customer is solely
responsible for all risk and actual loss of, damage to, or destruction of the
Warehoused Goods. Care, custody, and control over the Warehoused Goods shall at
all times, as between Customer and Seller, remain exclusively with Customer,
except that Seller shall be deemed to have care and custody solely when and to
the extent the Warehoused Goods are in Seller’s physical possession in the
Space for purposes of the Warehousing Services, in which case Seller’s
obligations are limited to the fulfillment of its limited warranty and
exclusive remedy obligations. For the avoidance of doubt, and notwithstanding
anything herein to the contrary, Customer is solely responsible and shall
release, defend, and indemnify Seller, its affiliates, and its/their employees,
agents, officers, directors, and insurers from and against all loss of, damage
to, or destruction or costs of or resulting from the Warehoused Goods in
connection with any latent defects in the Warehoused Goods or any event or
occurrence outside of Seller’s reasonable control, including, but not limited
to, as a result of theft, vandalism, riot, pandemic, flood, fire, earthquake,
hurricane, war, tornado, major storm, government takings, or other “force
majeure” events or occurrences.
(e) Relocation
of Warehoused Goods. Customer shall
be responsible for ensuring that the Warehoused Goods are safely and securely
loaded and transported away from the Space on or before the termination or
expiration of the Warehousing Services at issue. Except in the event of an emergency or
Customer’s failure to load and transport away all Warehoused Goods on or before
termination or expiration of Warehousing Services at issue, Seller will not
relocate the Warehoused Goods away from the Space without the Customer’s
consent, which consent shall not be unreasonably withheld, conditioned, or
delayed. If Seller relocates the Warehoused Goods to a location other than the
Space due to emergency or Customer’s failure to load and transport such
Warehoused Goods away on or before the termination or expiration of the applicable
Warehousing Services, all risk of loss shall immediately transfer back to
Customer, including during such relocation, and all costs and expenses related
thereto, including, but not limited to, packaging and transportation costs,
cargo insurance, additional storage costs, legal fees and court costs, plus
reasonable overhead and profit, shall be immediately reimbursed to Seller by
Customer on demand.
(f) Insurance
Requirements for Warehoused Goods.
Customer is solely responsible for insuring the Warehoused Goods, at all
times, including, without limitation, while in the Space and through and
including handling, packaging, loading, unloading, and transport to and from
all locations. Customer and its insurers shall waive all rights of subrogation
and recovery against Seller and its affiliates and its and their insurers,
officers, directors, and employees with respect to the Warehoused Goods. At a minimum, Customer, at its sole cost,
shall procure and maintain throughout the duration of the Warehousing Services,
and for at least three (3) years thereafter, the following types and amounts of
insurance: (1) Commercial General
Liability Insurance on an occurrence basis, with coverage for premises
liability, personal and advertising injury, products and completed operations,
bodily injury, property damage and contractual liability, in limits of at least
$2,000,000 per occurrence; (2) Worker’s Compensation & Employer’s Liability
(stop gap) Insurance as required by statute and with benefits in all states in
which Warehousing Services are performed; (3) Auto Liability Insurance for Customer’s owned, leased, hired or
non-owned vehicles with a combined single limit of at least $1,000,000 for any
one loss; (4) Umbrella Liability Insurance with limits of at least $3,000,000
per occurrence and coverage to apply in excess of underlying Commercial General
and Auto Liability policies; and (5) All-Risk Property Insurance at no less
than full replacement cost for all Warehoused Goods and all of Customer’s real
and other personal property, machinery, equipment, fixtures and any other
property owned or leased by Customer and in any way related to the Warehousing
Services and/or Warehoused Goods. Such
policy shall be on an “all-risks” basis (i.e., providing coverage for all-risks,
including, but not limited to, fire, theft, flood, water damage, etc.),
endorsed to name Seller and its parent and affiliates and each of their
officers, directors, and employees as additional insureds, and endorsed to
provide a Waiver of Subrogation in favor of Seller and its parents and
affiliates and each of their insurers, officers, directors, and employees. All insurance required to be maintained in
this subsection shall be written with insurers having A.M. Best Ratings of A-
VII or better and Customer shall be solely responsible for all premiums,
deductibles, and self-insured retentions.
14. Intellectual
Property.
Customer shall have no right, title, or interest in, to, or under Seller’s
trademarks, tradenames, patents, copyrights, domain names, trade dress, product
names, catalogs, or other intellectual property rights, or to any such
intellectual property rights of the manufacturers or sub-suppliers of products
provided by or on behalf of Seller pursuant hereto.
15. Independent
Contractor.
The status of Seller and its personnel and any subcontractors is and will be
that of independent contractors, and no such personnel or subcontractors will,
at any time or for any purpose, be deemed Customer’s employees or agents.
16. Security Interest. Customer hereby
grants Seller a first priority purchase money security interest and/or chattel
mortgage in the products and any accounts receivable, cash, or other proceeds
resulting from insurance or the resale thereof until full and final payment is
made to Seller. Customer shall file, and it hereby permits and authorized
Seller to file, all financing statements and other applicable documentation
necessary to perfect, confirm and continue the validity, priority and
enforceability of such liens and/or security interests. Customer further
authorizes Seller to notify any creditor asserting a security interest in
Customer’s assets that Seller has been granted a purchase money security
interest and/or chattel mortgage in the products.
17. Assignment. Customer shall
not assign any order, or interest therein, without Seller’s express prior
written authorization. Actual or attempted assignment without Seller’s prior
written consent shall be void and unenforceable and shall entitle Seller to
cancel such order upon notice to Customer.
18. Third Parties. These T&Cs
are solely for the benefit of Customer and Seller and no other person or party
is conferred any rights, benefits or claims.
19. Severability. If any term,
provision, or subsection in these T&Cs is to any extent found illegal,
invalid or unenforceable, the same shall be excluded to the extent of such
illegality, invalidity or unenforceability and all other terms, provisions, and
subsections hereof shall remain in full force and effect. To the extent
permitted and possible, the illegal, invalid or unenforceable term, provision,
or subsection shall be deemed replaced by one that is legal, valid, and
enforceable and that comes closest to expressing the intent of such illegal,
invalid, or unenforceable term, provision, or subsection. If such replacement
is not permitted and possible, the illegal, invalid, or unenforceable term,
provision, or subsection shall be severed from these T&Cs and the remainder
of these T&Cs shall be valid and fully enforced as written.
20. Entire Agreement. These
T&Cs, together with the Credit Application (if any), and the commercial and
technical terms of Seller’s forms, acknowledgements, quotations and invoices,
constitute the entire and exclusive agreement between Seller and Customer, with
any conflict therein being resolved in favor of the terms and conditions that
are more onerous on the Customer, as determined by Seller in its sole
discretion. All typographical or clerical errors made in these T&Cs or by
Seller in any quotation, acknowledgement, or publication are subject to
correction by Seller, in its sole discretion.
Terms
of Use
THESE TERMS OF USE APPLY
WHEN ACCESSING OR USING THIS WEB SITE.
1/ Acceptance of Terms
Use of this website is offered to you on your acceptance of
these Terms of Use, our Privacy Policy, and any additional terms and conditions
set forth on this Web Site. If you do not agree to be bound by and comply with
all of the foregoing, you may not access or use the information or services in
this Web Site. If you do not agree to any additional specific terms which apply
to particular Content (as defined below) or to particular transactions
concluded through this Web Site, then you should NOT use the part of the Web
Site which contains such Content or through which such transactions may be
concluded and you should not use such Content or conclude such transactions. In
addition, as a condition of your use of this Web Site, you represent and
warrant to Codale Electric Supply, Inc. that you will not use this Web Site for
any purpose that is unlawful, immoral or prohibited by these Terms of Use. You
represent and warrant that you possess the legal right and authority to agree
to these Terms of Use on your behalf and that you are at least eighteen (18)
years old. As used in these Terms of Use, the term “you” refers to you
individually, and if applicable, your employer or such other entity on whose
behalf you may access this Web Site.
These Terms of Use may be amended by Codale Electric Supply,
Inc. at any time. Such amended Terms of Use shall be effective upon posting on
this Web Site. You agree to review the Terms of Use published on this Web Site
regularly to ensure that you are aware of all terms governing your use of this
Web Site. Codale Electric Supply, Inc. reserves the right, at its sole
discretion, to modify, disable, restrict access, or discontinue, temporarily or
permanently, any part or all of this website or any information contained
thereon without liability or notice to you.
Other Sonepar web sites may have their own terms of use which
apply to such web sites.
Separate terms and conditions may apply to specific content,
products, materials, services or information contained on or available through
this Web Site (the "Content") or transactions concluded through this
Web Site, including, but not limited to our standard terms and conditions of
sale and terms and conditions of purchase. Such terms may be in addition to
these Terms of Use or, where and then only to the extent the content or intent
of such specific terms is inconsistent with the terms contained in these Terms
of Use, such specific terms will supersede these Terms of Use.
Codale Electric Supply, Inc. endeavors to provide current and
accurate information on the Web Site. However, misprints, errors, inaccuracies,
omissions (including incorrect specifications for products) or other errors may
sometimes occur. You should independently evaluate the accuracy of the
information and the usefulness for your particular needs of any product or
service available through the Web Site. Codale Electric Supply, Inc. cannot
guarantee that products and services advertised on the Web Site will be
available when ordered or thereafter. Specifications for products and services
are subject to change without notice, and Codale Electric Supply, Inc. reserves
the right to make changes to processing, materials or configuration without
notice. Codale Electric Supply, Inc. does not warrant that the content of the
Website including, without limitation, product descriptions or photographs, is
accurate or complete.
Codale Electric Supply, Inc. reserves the right to reject any
order you place with us, and/or or to limit quantities on any order, without
giving any reason. If we reject your order, we will generally attempt to notify
you using the e-mail address you gave us when you placed the order, although we
make no guarantee to do so. If your credit card has been charged for the
purchase and your order is cancelled by Codale Electric Supply, Inc., Codale
Electric Supply, Inc. shall issue a credit to your credit card.
Although care has been taken to ensure the accuracy of the
information on this Web Site, CODALE ELECTRIC SUPPLY, INC. assumes no
responsibility therefore ALL CONTENT IS PROVIDED "AS IS" AND "AS
AVAILABLE". CODALE ELECTRIC SUPPLY, INC. HEREBY EXPRESSLY DISCLAIMS ANY
REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR
PURPOSE, NON-INFRINGEMENT, OR AS TO THE OPERATION OF THIS WEB SITE OR THE
CONTENT. CODALE ELECTRIC SUPPLY, INC. DOES NOT WARRANT OR MAKE ANY
REPRESENTATIONS AS TO THE SECURITY OF THIS WEB SITE. YOUR USE OF THIS WEB SITE
IS AT YOUR OWN RISK YOU ACKNOWLEDGE ANY INFORMATION SENT MAY BE INTERCEPTED. CODALE
ELECTRIC SUPPLY, INC. DOES NOT WARRANT THAT THE WEB SITE OR THE SERVERS
WHICH MAKE THIS WEB SITE AVAILABLE OR ELECTRONIC COMMUNICATIONS SENT BY CODALE
ELECTRIC SUPPLY, INC. ARE FREE FROM VIRUSES OR ANY OTHER HARMFUL ELEMENTS.
IN NO EVENT SHALL CODALE ELECTRIC SUPPLY, INC., ITS PARENT
COMPANY OR ANY OF ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT,
CONSEQUENTIAL, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF BUSINESS, CONTRACT, REVENUE, DATA, INFORMATION
OR BUSINESS INTERRUPTION) RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH
THE USE OF, OR INABILITY TO USE THIS WEB SITE OR THE CONTENT, EVEN IF CODALE
ELECTRIC SUPPLY, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY
ACTION BROUGHT AGAINST CODALE ELECTRIC SUPPLY, INC. PERTAINING TO OR IN
CONNECTION WITH THIS WEB SITE MUST BE COMMENCED AND NOTIFIED TO CODALE ELECTRIC
SUPPLY, INC. IN WRITING WITHIN ONE (1) YEAR AFTER THE DATE THE CAUSE FOR ACTION
AROSE.
7/ Indemnification
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS CODALE ELECTRIC
SUPPLY, INC., AND ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUBSIDIARIES AND
AFFILIATES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY
AND ALL LOSSES, COSTS, LIABILITIES, OBLIGATIONS, DAMAGES, DEFICIENCIES,
EXPENSES, ACTIONS, SUITS, PROCEEDINGS, DEMANDS, ASSESSMENTS AND/OR JUDGMENTS,
INCLUDING REASONABLE ATTORNEYS' FEES, THAT ARE CAUSED BY, OR RESULT OR ARISE
FROM (I) YOUR USE OF THE SITE; (II) ANY BREACH BY YOU OF ANY OF THESE SITE
TERMS; (III) COMMUNICATIONS BETWEEN YOU, OTHER USERS, AND/OR OTHER THIRD
PARTIES; AND (IV) INTELLECTUAL PROPERTY INFRINGEMENT VIOLATIONS AND VIOLATION
OF LAWS BY YOU.
This Web Site may provide links to other web sites that are not
under the control of Codale Electric Supply, Inc. Codale Electric Supply, Inc.
shall not be responsible in any way for the content of such other web sites. Codale
Electric Supply, Inc. provides such links only as a convenience to the user of
this Web Site, and the inclusion of any link to any such web sites does not
imply endorsement by Codale Electric Supply, Inc. of the content of such web
sites or, unless expressly disclosed otherwise, any sponsorship, affiliation or
association with its owner, operator or sponsor, nor does Codale Electric
Supply, Inc.'s inclusion of the links imply that Codale Electric Supply, Inc.
is authorized to use any trade name, trademark, logo, legal or official seal or
copyrighted symbol that may be reflected in the linked web site. You may not
link to this Web Site without Codale Electric Supply, Inc.’s prior written
permission. Anyone linking to this Web Site must comply with all applicable
laws and other requirements of Codale Electric Supply, Inc. for linking to this
Web Site.
9/ Trademarks and service marks
Unless otherwise explicitly stated, copyright and all other
proprietary rights in the Content (including but not limited to software,
audio, video, text and photographs) rests with Sonepar USA or any of its
affiliates or their licensees, irrespective of whether a copyright symbol or
statement is present. There are a number of proprietary logos, service marks,
trademarks, slogans and product designations found on this Site. By making them
available on this Site, Sonepar USA or any of its affiliates are not granting
you a license to use in any fashion. Access to this Site does not confer upon
you a license under any of Sonepar's USA or any of its affiliates or any third
party's intellectual property rights. Except as otherwise provided, the Content
published on this Web Site may be reproduced or distributed in unmodified form
for personal non-commercial use only. Any other use of the Content, including
without limitation distribution, reproduction, modification, display or
transmission without the prior written consent of Sonepar USA or any of its
affiliates is strictly prohibited. All copyright and other proprietary notices
shall be retained on all reproductions. Our policy is to comply with all
intellectual property laws, and to act expeditiously upon receiving any notice
of claimed infringement. If you believe that your work has been reproduced on
this website in a manner that constitutes copyright infringement, please
provide a notice of copyright infringement identifying the original copyrighted
work and the portions of the Codale Electric Supply, Inc. site that is claimed
to be infringing such copyright. Any material or information sent through or in
connection with this Web Site by you ("User Materials") will be
treated as non-confidential and non-proprietary, and immediately become the
property of Codale Electric Supply, Inc. or any of its affiliates, subject to
any privacy policies posted on this Web Site. Codale Electric Supply, Inc. may
use such User Materials as it deems fit, anywhere in the world, without
obligation for compensation, and free of any moral rights, intellectual
property rights and/or other proprietary rights in or to such User Materials.
The Web Site may contain references to specific products and
services that may not be (readily) available in a particular country. Any such
reference does not imply or warrant that any such products or services shall be
available at any time in any particular country. Please contact your local Codale
Electric Supply, Inc. business contact for further information.
Software made available for downloading from or through this Web
Site is licensed subject to the terms of the applicable license agreement.
Except as set forth in the applicable license agreement, the software is made
available for use by end users only and any further copying, reproduction or
redistribution of the software is expressly prohibited. WARRANTIES, IF ANY,
WITH RESPECT TO SUCH SOFTWARE SHALL ONLY APPLY AS EXPRESSLY SET FORTH IN THE
APPLICABLE LICENSE AGREEMENT. CODALE ELECTRIC SUPPLY, INC. HEREBY EXPRESSLY
DISCLAIMS ALL FURTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR
PURPOSE OR NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE.
10/User Conduct and Information
The user agrees a) not to use this Web Site in any manner which
could damage, disable, overburden or impair this Web Site; b) not to interfere
with the security of, or otherwise abuse, this Web Site, or any services,
system resources, accounts, servers or networks connected to or accessible
through this Site or affiliated or linked sites; c) not to disrupt or interfere
with any other person's use and enjoyment of this Site or affiliated or linked
sites; d) not to upload, post or otherwise transmit on this Web Site any
viruses or other harmful, disruptive or destructive files or computer programs;
e) not to use any robot, spider or other automatic device, or manual process to
monitor or copy the web pages or the content contained at this Site without written
permission; f) not to use or attempt to use another's account, service or
system without authorization from Codale Electric Supply, Inc., or create or
use a false identity on this Web Site; g) not to transmit on this Site spam,
chain letters, junk mail or any other type of unsolicited mass e-mail; and h)
not to attempt to obtain unauthorized access to this Site or portions of this
Site which are restricted from general access. In addition, you agree that you
are solely responsible for actions and communications undertaken or transmitted
to or for your account, and that you will comply with all applicable laws that
relate to your use or activities on this Web Site.
Codale Electric Supply, Inc. may handle user information that
you submit within the Web Site. While Codale Electric Supply, Inc. will make
commercially reasonable efforts to protect your information, Codale Electric
Supply, Inc. cannot and does not guarantee that any information you provide
through this Web Site will not be intercepted by others and/or used for
unauthorized purposes.
11/ Jurisdiction and Choice of
Law
These Terms of Use shall be governed by and construed in
accordance with the laws of the State of Utah, and the federal laws of the
United States of America, without giving effect to conflict of laws provisions.
You agree to submit to the personal and exclusive jurisdiction of the state or
federal courts located within the State of Utah for any disputes arising from
or related to the Site or these Terms of Use.
Terms
and Conditions of Purchase
THESE TERMS AND
CONDITIONS APPLY WHEN WE BUY GOODS/SERVICES FROM YOU.
1. Either of the
following constitutes your (“Seller’s”) acceptance of these Terms and
Conditions of Purchase (“T&Cs”): (a) Seller’s execution or acknowledgement
of a purchase or work order ("Order"); or (b) Seller’s commencement
of performance of the Order (e.g., promising or commencing performance);
provided, however, we (“Buyer”) may treat the offer made by the Order as having
lapsed before acceptance if Seller fails to so accept within a reasonable
period of time. Except as provided in Section 3 (only as to an extended
warranty period) and Section 10 below, Orders are subject to and governed
exclusively by, and Seller's acceptance thereof is expressly limited to, these
T&Cs. Buyer hereby expressly rejects and objects to any prior or
subsequently proposed term, condition or alteration. No modification or waiver
of these T&Cs shall be binding on Buyer unless expressly accepted in
writing by Buyer’s authorized officer. Any reference to Seller’s quote, bid or
proposal does not constitute acceptance of any legal terms or condition
thereof.
2. Orders may be
issued electronically or in writing. The purchase price for goods (“Products”)
and services sold to Buyer shall be as listed on the Order or as otherwise
agreed in writing by the parties. Buyer will pay undisputed portions of valid
invoices within sixty (60) days of Buyer’s receipt. Buyer may cancel or change
Orders without penalty upon at least ten (10) days’ notice. If Seller believes
any such change will affect the price or delivery date, Seller shall so notify
Buyer in writing (with reasonable supporting documentation) within three (3)
days of receiving said written direction or the change shall be deemed accepted
without modification to the price or date of delivery. Any such modification to
price and/or delivery date must be pre-approved by Buyer in writing. No
substitutions shall be made without Buyer’s prior written consent. Products
shall be tendered by Seller in a single delivery unless otherwise agreed.
Shipments shall be F.O.B. (INCOTERMS 2010) Buyer’s designated destination or
otherwise in accordance with shipping terms on the Order. No charge will be
allowed for packing, shipping or handling unless stated in the Order. Seller
shall pay for damaged Products resulting from improper packing or marking.
Itemized packing lists must accompany each shipment. Buyer’s count will be
final and conclusive on shipments not accompanied by Seller’s itemized packing
list. Time is of the essence. Seller shall promptly notify Buyer of any actual
or anticipated delay and shall take all commercially reasonable steps to avoid
or end delays without additional cost to Buyer.
3. Seller
represents, warrants, and covenants that: (i) it has and will transfer good
title to Products upon delivery, free and clear of all liens, claims and
encumbrances of any kind; (ii) Products will conform to Seller's standard
technical specifications and to all specifications, descriptions, drawings and
standards provided by Buyer or otherwise agreed to by Seller, and they will be
new, meet the highest industry standards, fit for the purpose(s) normally
intended (or specifically intended if such intent is communicated to Seller in
the Order or otherwise), and Products and services will be free from defects in
design, materials and workmanship; (iii) Products and their use, sale, lease
and distribution will not infringe, misappropriate, or violate trademarks,
service marks, copyrights, patents, patent rights, trade secrets or other
intellectual property rights of a third party; (iv) it will utilize all
necessary or desirable protective equipment and devices, whether suggested or
required by safety associations, government agencies, municipalities or
otherwise; (v) that all services shall be done with the utmost skill, care and
diligence, in a good and workmanlike manner, in accordance with the terms
hereof and good industry standards of performance and in a timely manner; (vi)
it and the Products and services provided to Buyer will comply with all
applicable laws, codes, standards and regulations (including, but not limited
to anti-corruption and anti-bribery, child labor, affirmative action and
conflict minerals); and (vii) it will comply with all aspects of Buyer’s Cyber
Security Requirements outlined in Appendix 1 as applicable. The foregoing
warranties are enforceable by Buyer and its direct and indirect customers
receiving such Products (together, “Customers”), and each shall remain valid
for the longer of: (1) eighteen (18) months from the date of shipment from
Seller; (2) such longer period as is offered by Seller in its then standard
warranty; or (3) such longer period as is required by applicable law. If Seller
breaches any of the foregoing warranties, Seller shall, at Buyer’s election and
at Seller’s sole cost and expense (including, but not limited to, all
transport, packaging, removal, testing, re-install and other labor costs): (a)
repair or replace Products or services to Buyer's complete satisfaction; (b)
reimburse Buyer for the purchase price paid for such Products or services; or
(c) reimburse Buyer for the cost of substitute products or services obtained by
Buyer from third-parties. Warranties shall begin anew on the date of repair or
replacement pursuant to this Section 3.
4. Seller shall
indemnify, defend and hold harmless Buyer, its parent, subsidiaries, Customers
and affiliates, and its/their officers, directors, employees, agents,
contractors and representatives, from and against any and all actual or
asserted claims, actions, damages, injuries, fines, penalties, settlements,
judgments, losses, costs and expenses (including court costs and attorneys'
fees) (collectively "Losses") arising out of, in connection with, or
resulting directly or indirectly from: (i) Seller's breach of any
representation, warranty or covenant hereunder; (ii) the use, sale, lease or
distribution of Products (including, without limitation, for Losses that are
attributable, in whole or in part, to contamination, pollution or environmental
damage (including clean-up costs), data or security breaches, or any inaccurate
or misleading representations or omissions from any Product literature,
communication, packaging, warning or instruction relating thereto); (iii)
recall of Product initiated or required by Seller, a governmental agency or
applicable laws, rules, orders or regulations; or (iv) negligence, gross
negligence, recklessness, fraud, strict liability, fault, violation of law, or
willful misconduct of Seller, its employees, suppliers, manufacturers,
contractors, officers, directors, guests, invitees or agents. Seller
acknowledges and agrees that its indemnity obligations under this Section 4
shall be enforceable against Seller regardless of whether or not insurance
Seller maintains covers such indemnity obligations. The foregoing shall not be
construed to negate, abridge, or otherwise reduce any other right or obligation
that would otherwise exist as to any party or person described herein. In the
event that any indemnity provisions herein are contrary to applicable law, then
such indemnity obligations shall be construed to apply to the fullest extent
allowed by applicable law.
5. TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY, OR ITS
PARENT OR AFFILIATES, OR ANY OF ITS/THEIR DIRECTORS, OFFICERS, EMPLOYEES OR
AGENTS, BE LIABLE HEREUNDER FOR ANY SPECIAL, RELIANCE, CONSEQUENTIAL,
EXEMPLARY, PUNITIVE, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMIT,
FROM DAMAGES TO PROPERTY, FOR LOSS OF PROFITS, INCOME, USE OR TIME, WHETHER IN
TORT, CONTRACT, OR OTHERWISE RESULTING FROM PERFORMANCE OR NON-PERFORMANCE
HEREUNDER, AND WHETHER OR NOT IT/THEY KNEW OF THE POSSIBILITY THEREOF;
PROVIDED, HOWEVER, THIS SECTION 5 SHALL NOT LIMIT SELLER'S OBLIGATIONS UNDER
SECTIONS 4 OR 12.
6. Unless
otherwise expressly agreed in writing by Buyer, Seller shall not, and shall not
authorize any other party to, use, modify, reproduce or replicate any
trademark, logo or trade name owned or claimed by Buyer ("Buyer
Marks") in any way. Seller shall not contest Buyer's right of exclusive
use of any Buyer Mark. Upon expiration or termination of the Order, Seller will
remove and not thereafter use any sign, catalogue, brochure or other material
(whether print or electronic) containing any Buyer Mark and Seller will, at
Buyer’s option, immediately destroy or return to Buyer such material in its
possession or under its control containing Buyer Marks. In addition, Seller
agrees not to use any Buyer Marks in any promotional material, including
without limitation, customer lists, advertisements, or press releases, without
Buyer's advance written authorization.
7. The occurrence
of any one or more of the following shall constitute an “Event of Default”: (i)
delivery of services or Products failing to conform to any provision hereof
(“Non-Conforming Products”); (ii) Seller’s breach or failure to perform its
obligations hereunder; or (iii) Seller’s breach or misrepresentation of any
representation or warranty herein. Upon an Event of Default, Buyer shall be
entitled, but not required, to exercise any or all of the following: (i) for
late delivery or performance, Buyer may extend the time therefore and/or
require expedited shipping/services, and such Products/services shall be
provided in the manner and per the timelines specified by Buyer, at Seller's sole
cost; (ii) with respect to Non-Conforming Products, Buyer shall have all of the
rights and remedies available under Sections 3 and 4 above; (iii) reject or
revoke acceptance, as the case may be, of all or any portion of the shipment of
Products containing any Non-Conforming Products; and/or (iv) exercise any other
rights and remedies specified in the Order or otherwise available under
applicable law. Buyer may exercise any one or more of the foregoing rights and
remedies by notifying Seller of such intent. Buyer shall not be liable to
Seller on account of exercising any such rights or remedies. Seller
acknowledges and agrees that the occurrence of an Event of Default constitutes
a substantial impairment of value to Buyer of the shipment at issue, the entire
Order, and any other then pending Orders, so as to entitle Buyer to exercise
any and/or all of the remedies specified herein, in the Order, and at law, and
Seller hereby waives its right to cure the default in question, unless
otherwise agreed in writing by Buyer. The making of or failure to make any
inspection of or payment for the Products shall in no way impair Buyer’s right
to reject Non-Conforming Products, nor be deemed acceptance by Buyer of the
Products, nor affect in any way Seller’s obligations hereunder, notwithstanding
Buyer’s opportunity to inspect the Products, Buyer’s knowledge of the
non-conformity or defect, its substantiality or the ease of its discovery, nor
Buyer’s earlier failure to reject the Products.
8. All questions
pertaining to the validity, construction, execution and performance of the
Order and the relationship of the parties hereto shall be construed and
governed by the laws of Utah and the USA, without giving effect to the
principles of (i) comity of nations; or (ii) conflicts or choice of law
provisions thereof, and the Order shall not be governed by the U.N. Convention
on Contracts for the International Sale of Goods. Exclusive jurisdiction shall
be in the appropriate state or federal court in the state of Buyer's principal
place of business.
9. Seller
certifies that it has an affirmative action policy ensuring equal employment
opportunity without regard to, and that it maintains no employee facilities
segregated on the basis of, race, color, national origin, sex, age, sexual
orientation, religion or handicap, and that it is not debarred or suspended
from being awarded Federal or Federally assisted contracts. If applicable, the
following laws, orders and regulations, as amended, are hereby incorporated:
Executive Order 11246; Vietnam Era Veterans Readjustment Act; Rehabilitation
Act of 1973; Veterans Compensation, Education and Employment Act; 41 CFR 60-1.4
(Equal Employment Opportunity); 41 CFR 60-250.4 (Veterans Affirmative Action);
41 CFR 60-741.4 (Handicap Affirmative Action); 41 CFR 601.40 (Affirmative
Action Plans); 41 CFR 601.7 (EE01 Reports); 41 CFR 61650 (Veterans Employment
Reports). Seller certifies and warrants that it is and shall remain in
compliance with all applicable anti-corruption and anti-bribery laws and that
the Products are produced in compliance with the Fair Labor Standards Act of
1938, as amended, and the regulations and orders of the U.S. Department of
Labor issued thereunder, and that each invoice it submits is correct and
authentic and the only one issued for the Products at issue, and that all
Products comply with the Occupational Safety and Health Act of 1970, as
amended, and the applicable state plans approved under same, and the
regulations thereunder, to the extent applicable. Seller shall notify Buyer in
writing if Products are subject to laws or regulations relating to hazardous or
toxic substances, or when disposed of, to regulations governing hazardous
wastes, or to any other health, safety and/or environmental regulations. Seller
shall furnish all appropriate shipping certifications, labeling in compliance
with the Workplace Hazardous Materials Information System, Material Safety Data
Sheets in compliance with the Workplace Hazardous Materials Information System,
and instructions for shipping, safety, handling, exposure and disposal in a
form sufficiently clear for use and actions to be taken by Buyer’s and its
Customer’s non-technical personnel.
10. Without limiting
Seller’s obligations or liabilities hereunder, Seller shall, on the date an
Order is accepted and for a period of two (2) years thereafter, at its sole
expense, purchase and maintain the following insurance coverage with carriers
that have A.M. Best ratings of not less than A- and with a minimum financial
rating of Class VII: (a) Commercial General Liability Insurance that covers all
liabilities for bodily injury and property damages arising from the Products,
services and/or the performance of an Order, with limits of liability of at
least $5,000,000 for each occurrence and in the aggregate. Coverage must
include Products/Completed Operations, Personal and Advertising Injury and
Blanket Contractual Liability (CG 20 10 or its equivalent must be provided).
Such CGL insurance may be maintained through any applicable combination of CGL
and Excess/Umbrella Coverage; (b) Automobile Liability Insurance that covers
all liabilities for bodily injury and property damages arising from the use of
all owned, hired or non-owned vehicles, with limits of liability of at least
$1,000,000 for each occurrence and in the aggregate; (c) Workers Compensation
Insurance shall be statutory by state law and Employer's Liability Insurance
with limits of liability of at least $1,000,000; (d) Product Liability
Insurance that covers the Products with limits of liability of at least $5,000,000
in the aggregate; and (e) Technology Errors & Omissions Liability
Insurance, with a minimum limit of $5,000,000 per claim and in the aggregate,
covering all Products including failure of information technology security,
data privacy breach and software copyright infringement (if coverage is on a
claims-made basis, the policy must contain a retro date which precedes the
effective date of the Order and continuity must be maintained for 1 (one) year
following termination or expiration of the Order). All insurance coverage
required herein for Seller shall extend to and protect Buyer and its
subsidiaries, parent company and/or affiliates to the full amount of such
coverage, and all deductibles and/or self-insured retentions (if any),
including those related to defense cost, are the sole responsibility of Seller
and, upon Buyer’s request, Seller shall disclose the same to Buyer. All
policies, except the Workers' Compensation insurance, shall be endorsed to name
Buyer, its parent and affiliated entities, and its/their directors, officers,
employees, representatives, and agents, as an additional insured and such
policies shall be endorsed to waive all express or implied rights of
subrogation against Buyer, its parent and affiliated entities. The insurance
coverage set forth above shall be primary to any liability insurance or other
insurance carried by Buyer, its affiliates or parent and Buyer's, its
affiliate’s and parent’s other insurance shall be excess and non-contributory
for claims and losses arising out of the performance of an Order. Seller shall
provide a coverage endorsement for each category of insurance required above,
except for Workers' Compensation, which includes a cross liability clause,
stating that the Seller and Buyer shall each be considered as a separate
entity. The policies shall not be canceled, terminated or materially reduced
without thirty (30) days' advance written notice to Buyer. Seller shall provide
Buyer with a Certificate of Insurance evidencing the above-required types and
amounts of insurance coverage and other requirements prior to selling Products
and providing services to Buyer and on an annual basis thereafter. Failure of
the Seller to provide Buyer the Certificate of Insurance or failure of Buyer to
specifically request such certificate, shall in no way limit or release the
Seller of its obligations or liabilities under this Section 10. In the event
the Seller or its insurance carrier defaults on any obligation hereunder,
Seller agrees that it will be liable for all reasonable expenses and attorneys'
fees incurred by Buyer or its affiliates to enforce the provisions hereunder.
11. Unless Buyer and
Seller are currently entered into a separate, written agreement that
specifically governs their business relationship and the subject matter of the
Order, and unless that written agreement specifically contains a merger clause
that addresses conflicting terms and conditions in purchase orders, invoices,
etc., then these T&Cs constitute the entire agreement and understanding
between the parties, and supersede and replace all prior negotiations and
agreements, proposed or otherwise, whether written or oral, concerning the
subject matter hereof. No course of dealing, usage of trade or course of
performance shall be relevant to explain, supplement or modify any express
provision of these T&Cs.
12. Buyer may
disclose Confidential Information (as defined below) to Seller in connection
with its purchase of Products and services from Seller. Seller shall not
disclose any Confidential Information or any portion thereof to any person or
entity and shall only use such Confidential Information to fulfill its
obligations hereunder, it being understood that such Confidential Information
provides Buyer with a competitive advantage in its trade because it is not
generally known or available to the public. In that regard, Seller acknowledges
and agrees that Buyer has taken and is taking reasonable steps to protect the
confidentiality of, and its legitimate interests in, the Confidential
Information. The term "Confidential Information" means information
concerning Buyer’s business, personnel, data, financial and marketing plans,
intellectual property rights (including, without limitation, patents,
trademarks, copyrights and trade secrets), forecasts, strategies and
statements, and Customer related information. To the extent allowed by law,
Seller shall notify Buyer in writing in advance of any disclosure of
Confidential Information required by law, court or administrative order.
13. All notices
permitted, required or provided for herein shall be made in writing, and shall
be deemed adequately delivered if delivered by hand, certified mailing in the
U.S. mail with return receipt requested, or by a recognized courier service
that regularly maintains records of its pick-ups and deliveries, to the parties
at their respective addresses, as set forth on the face of the Order or as
otherwise designated by a party hereto. Any waiver of any of the provisions
herein or of any inaccuracy in or non-fulfillment of any of the
representations, warranties or obligations hereunder or contemplated hereby,
shall not be effective unless made in writing and signed by the party against
whom the enforcement of such waiver is sought. Any provision of these T&Cs
that is deemed invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction only, be ineffective only to the extent of such invalidity or
unenforceability, without rendering invalid or unenforceable or otherwise
affecting the remaining terms and provisions hereof. Neither party may assign
or otherwise delegate any of its rights or obligations hereunder without the
prior written consent of the other party, which consent will not be
unreasonably withheld, delayed or conditioned; provided, however, Buyer shall
have the right to assign Orders without Seller’s consent to an affiliate of
Buyer. The provisions hereof that by their nature are intended to survive the
termination, cancellation, completion or expiration of the Order shall continue
as valid and enforceable obligations of the parties notwithstanding any such
termination, cancellation, completion or expiration. To the maximum extent
permitted by applicable law: (i) Seller's warranties are fully-enforceable by
Buyer and its Customers (as intended third-party beneficiaries); and (ii) the
indemnities provided hereunder are fully-enforceable by Buyer and/or any or all
of the other indemnitees identified above in Section 4.
14. Seller
represents and warrants that it will at all times comply with all applicable
laws and regulations, including trade, economic, and financial restrictions,
trade embargoes, and any amendments thereto (for purposes of this Section 14,
collectively the “Laws”) imposed by any applicable governmental authority,
including where applicable, the United States and the European Union. Buyer shall not be liable, and Seller agrees
to indemnify, defend, and hold harmless Buyer, for any breach of such Laws and
for all claims, liabilities, costs (including attorneys’ and experts’ fees and
court costs), damages, and penalties associated therewith or arising
therefrom. Seller shall take all actions
necessary to ensure that its suppliers, subcontractors, materialmen, and other
business partners (i) comply with applicable Laws; and (ii) do not cause Buyer
to violate applicable Laws. If
applicable, Seller undertakes to timely provide all information and
documentation necessary for export, shipment, and import. Buyer shall not be liable, and Seller shall
indemnify, defend, and hold Buyer harmless, for delays and any other losses,
including liquidated damages assessed against Buyer, arising or resulting from
Seller’s failure to timely deliver Products and/or provide accurate information
and documentation, export/import reviews, or any related permitting procedures. To the extent permitted by law, Seller shall,
promptly upon becoming aware, provide to Buyer details of any claim, action,
suit, proceedings or investigation against it with respect to Laws brought by
any enforcement authority. In the event
that Buyer should believe, acting in good faith, that Seller has violated, or
is under investigation for violating, any Laws, or if Seller is identified on
any applicable sanctions list, Buyer shall have the immediate right to
terminate its relationship and/or any contract with Seller without liability.
Appendix 1
Cyber Security
Requirements
1. Seller shall
ensure all Products have been developed in accordance with principles of secure
software development consistent with software development industry best
practices, including, but not limited to, security design review, secure coding
practices, risk based testing and remediation requirements. Seller must use
reasonable measures to secure the software development environment of the
Products from unauthorized access.
2. Seller shall
include cyber security guidance in the Product documentation provided to Buyer.
This documentation shall include guidance on how to configure the Products
and/or the surrounding environment to best ensure security. It shall also
include guidance on which logical or physical ports are required for the
Product to function. If authentication is used to protect access to any service
or capability of the Products, regardless of the intended user of that
service/capability, the Seller shall ensure:
2.1 the Products shall
not provide access to that service or capability using a default
account/password;
2.2 the Products shall
not provide access to that service or capability using a “Backdoor” account or
password;
2.3 the Products’
associated authentication and password change processes shall be implemented
with an appropriately secure cryptographic level; and
2.4 Buyer shall be able
to change any passwords supported by the Products.
3. In the event
that any wireless technology is incorporated in any Product, Seller shall
document that the wireless technology complies with standard operational and
security requirements specified in applicable wireless standard(s) or
specification(s) (e.g., applicable IEEE standards, such as 802.11).
4. In the event that
any cryptographic systems are contained in the Product, Seller shall only use
cryptographic methods that are “Approved” as defined in the Federal Information
Processing Standard (FIPS) Security Requirements for Cryptographic Modules
(FIPS 140-2), and Seller shall provide an automated remote key-establishment
(update) method that protects the confidentiality and integrity of the
cryptographic keys.
5. Seller must
develop and maintain an up-to-date Cyber Security Susceptibility management
plan designed to promptly identify, prevent, investigate, and mitigate any
Cyber Security Susceptibilities and perform any required recovery actions to
remedy the impact. “Cyber Security Susceptibility (ies)” is defined as any bug,
software defect, design flaw, or other issue with software associated with a
Product that could adversely impact the confidentiality, integrity or
availability of information or processes associated with the Product.
6. Seller shall
notify Buyer within a reasonable period, in no event to exceed five (5)
business days after discovery, or shorter if required by applicable law or
regulation, of any potential Cyber Security Susceptibility. Seller shall report
any Cyber Security Susceptibility to Buyer. Within a reasonable time
thereafter, Seller shall provide Buyer, free of charge, with any upgrades,
updates, releases, maintenance releases and error or bug fixes necessary to
remediate any Cyber Security Susceptibility. Seller shall reasonably cooperate
with Buyer in its investigation of a Cyber Security Susceptibility, whether
discovered by Seller, Buyer, or a third party, which shall include providing
Buyer a detailed description of the Cyber Security Susceptibility, the
remediation plan, and any other information Buyer reasonably may request
concerning the Cyber Security Susceptibility, as soon as such information can
be collected or otherwise becomes available. Buyer or Buyer’s agent shall have
the right to conduct a cyber security assessment of the applicable Products,
and the Product development lifecycle, which includes tests intended to
identify potential Cyber Security Susceptibilities. Seller shall designate an
individual responsible for management of the Cyber Security Susceptibility, and
shall identify such individual to Buyer promptly.
7. Seller
represents, warrants and covenants that all open source software contained
within the Products are and shall be in material compliance with the terms and
conditions of the applicable licenses governing their use, and the Products or
the use thereof by Buyer shall not cause Buyer or Buyer’s intellectual property
rights to be subject to the terms or conditions of a copyleft license, or
require Buyer to fulfill any open source license obligations for any open
source software contained within the Products.
8. Seller
represents, warrants, and covenants that the Products shall be free of viruses,
malware, and other harmful code (including, without limitation, time-out
features) which may interfere with the use of the Products regardless of
whether Seller or its personnel purposefully placed such code in the Products.
In addition to exercising any of Buyer’s other rights and remedies under the
Order or otherwise at law or in equity, Seller shall provide Buyer, free of
charge, with any and all new versions, upgrades, updates, releases, maintenance
releases, and error or bug fixes of the Products (collectively, “Revised Code”)
which prevents a breach of any of the warranties provided under the Order or
corrects a breach of such warranties. Revised Code contained in the Products
constitutes Products for purposes of the Order.