WHOLESALE ELECTRIC SUPPLY COMPANY OF HOUSTON, INC.
TERMS AND CONDITIONS OF PURCHASE
APPLICABILITY AND EXCLUSIVITY. The Purchase Order into which these Terms and Conditions of Purchase (these “Terms and Conditions”) are incorporated, whether by reference, attachment, or otherwise, together with these Terms and Conditions and any other documents incorporated herein or therein by reference (collectively, this “Purchase Order”), constitutes an offer by Wholesale Electric Supply Company of Houston, Inc. (“Wholesale Electric Company”) for the purchase of the goods, materials and/or equipment (the “Goods”), and/or services, maintenance and/or repairs (the “Services”) specified on the face of the Purchase Order from the party to whom the purchase order is addressed (the “Seller”) in accordance with and subject to these Terms and Conditions; together with the terms and conditions on the face of the Purchase Order. Where applicable, the term “Goods” shall be interpreted to also include “Services”. As used herein, “Wholesale Electric Supply” shall also include any and all of said entity’s subsidiaries and affiliates. Upon acceptance by Seller, the Purchase Order constitutes the sole, exclusive and entire agreement of the parties with respect to the Purchase Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Purchase Order. Seller’s acceptance is expressly limited to the terms of the Purchase Order. These Terms and Conditions prevail over any terms or conditions contained in any other documentation and Wholesale Electric Supply expressly objects to, rejects and excludes any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with the Purchase Order. NO CONFLICTING OR ADDITIONAL TERMS AND CONDITIONS OR SELLER OR ITS SUPPLIERS WILL APPLY TO THIS TRANSACTION UNLESS WHOLESALE ELECTRIC SUPPLY SPECIFICALLY AGREES TO SUCH TERMS AND CONDITIONS IN WRITING HEREIN. Notwithstanding anything contained herein to the contrary, if a master agreement covering procurement described in the Purchase Order exists between Seller and Wholesale Electric Supply, the terms of such master agreement shall prevail over any inconsistent terms herein.
- ACCEPTANCE. The Purchase Order is not binding on Wholesale Electric Supply until Seller accepts the Purchase Order in writing or starts to perform in accordance with the Purchase Order. Wholesale Electric Supply may withdraw the Purchase Order at any time without liability before it is accepted by Seller.
- No packaging or cartage charges will be allowed except where specifically agreed upon. All Goods shall be delivered to the address(s) specified in the Purchase Order (the “Delivery Location”) during Wholesale Electric Supply’s normal business hours or as otherwise instructed by Wholesale Electric Supply. Delivery of Goods shall be made FOB Delivery Location or as otherwise stated in the Purchase Order and in accordance with the terms on the face of the Purchase Order.
- Seller shall give written notice of shipment to Wholesale Electric Supply when the Goods are delivered to a carrier for transportation. Except as otherwise provided herein, Seller shall provide Wholesale Electric Supply all shipping documents, including the commercial invoice, packing list, air waybill/bill of lading, proof of delivery, and any other documents necessary to release the Goods to Wholesale Electric Supply within the number of days or other time limit specified in the Purchase Order after Seller delivers the Goods to the transportation carrier (or, if the Purchase Order does not specify such a time limit, then by not later than twenty-four (24) hours prior to the arrival of such Goods to the Delivery Location. The Purchase Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, proofs of delivery, correspondence and any other documents pertaining to the Purchase Order. Material delivered in error or over shipped in quantity will, at Wholesale Electric Supply’s option, be returned at Seller’s expense.
- Seller shall ship material in compliance with all applicable federal, state and local laws, regulations, rules and guidelines in all material respects. Seller will attach to its invoice the original bill of lading. If transportation costs are charged as a separate feature on the invoice, the carrier’s original freight bill must also be attached.
- TITLE AND RISK OF LOSS. Unless otherwise provided in the Purchase Order (a) title passes to Wholesale Electric Supply upon delivery of the Goods to the Delivery Location and (b) Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.
- SUBSTITUTION. Substitutions of material or extra charges will not be permitted unless authorized in writing by Wholesale Electric Supply.
- PRICING. The price of the Goods and/or Services is the price stated in the Purchase Order (the “Price”). If no Price is included in the Purchase Order, the Price shall be the price set out in Seller’s published price list in force as of the date of the Purchase Order. Prices shown on the face of the Purchase Order shall remain firm through delivery unless otherwise agreed and indicated in the Purchase Oder. Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes.Subject to any discount terms, all invoices shall be payable net (a) within the time stated in the Purchase Order, or (b) provided that if the Purchase Order does not state such a payment time, within ninety (90) days from date that Wholesale Electric Supply receives the invoice.
- Wholesale Electric Supply has the right to inspect the Goods on or after the Delivery Date. Wholesale Electric Supply, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Wholesale Electric Supply rejects any portion of the Goods, Wholesale Electric Supply has the right, effective upon written notice to Seller, to: (i) rescind the Purchase Order in its entirety; (ii) accept the Goods at a reasonably reduced price; (iii) reject the Goods and require replacement of the rejected Goods; or (iv) correct or replace such defective/non-conforming items with similar items and recover the total cost thereof from the Seller. If Wholesale Electric Supply requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the expedited delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Wholesale Electric Supply may replace them with goods from a third party and charge Seller the total cost thereof and terminate the Purchase Order for cause pursuant to Section 10.
- If the Services or the tender of delivery fail in any respect to conform to specifications, the terms and conditions of the Purchase Order, any Statement of Work (“SOW”) or similar document, or applicable industry standards, or if the Services are deficient, at Wholesale Electric Supply’s option, Seller shall either give to Wholesale Electric Supply a full credit or refund of the purchase price of the rejected nonconforming or deficient Services or, at its expense, shall remedy or perform the Services again in accordance with Wholesale Electric Supply’s instructions. Wholesale Electric Supply’s expenses for inspection of the Services found to be nonconforming or deficient shall be charged to Seller or deducted from amounts due Seller. Wholesale Electric Supply’s failure to detect nonconformities or deficiencies in the Services shall not affect Wholesale Electric Supply’s remedies as to such nonconformities and/or deficiencies.
- Any inspection or other action by Wholesale Electric Supply under this Section shall not reduce or otherwise affect Seller’s obligations under the Purchase Order, and Wholesale Electric Supply shall have the right to conduct further inspections after Seller has carried out its remedial actions. Prior payment to secure cash discount does not constitute acceptance by Wholesale Electric Supply of the material furnished on the Purchase Order.
- Wholesale Electric Supply will have the right, but not the obligation to examine Seller’s records for the purpose of determining compliance with the Purchase Order. Should a compliance review be performed, Wholesale Electric Supply or its duly designated representatives will provide reasonable notice to Seller and the records may be examined only during the normal business hours. Wholesale Electric Supply will bear all audit costs.
- WARRANTY. Seller warrants to Wholesale Electric Supply that for a period of the longer of: (1) one (1) year after acceptance of the Goods and Services by Wholesale Electric Supply or Wholesale Electric Supply’s end user; (2) such longer period of time as the item is normally warranted by Seller; or (3) as agreed to between the parties in writing: (a) all Goods will be free from any defects in workmanship, manufacturing, material and design; (b) all Goods will conform to applicable specifications, drawings, designs, samples and other requirements specified by Wholesale Electric Supply, federal, state, and local laws, orders and regulations, including, but not limited to, those regarding occupational safety and health; (c) all Goods will be fit for their intended purpose and operate as intended; (d) all Goods will be merchantable; (e) all Goods will be owned by Seller immediately prior to delivery and will be transferred to Wholesale Electric Supply free and clear of all liens, security interests or other encumbrances; (f) the Goods will not infringe or misappropriate any third party’s patent or other intellectual property rights, and (g) will be manufactured, packaged and shipped in accordance with all applicable federal, state and local laws, regulations, rules and guidelines in all material respects, including without limitation those related to hazardous and toxic materials, labor, equal employment opportunity, affirmative action, immigration, occupational safety and health, labeling, and adulterated, misbranded or banned products. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Wholesale Electric Supply. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Wholesale Electric Supply’s discovery of the noncompliance of the Goods with the foregoing warranties. If Wholesale Electric Supply gives Seller notice of noncompliance with this Section, Seller shall, at its own cost and expense, promptly replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Wholesale Electric Supply. To the extent assignable, Seller assigns to Wholesale Electric Supply its right, title and interest in any representation, warranty, guaranty or agreement made by any of Seller’s third-party manufacturers, subcontractors, vendors, suppliers, transporters, and other providers of Goods and Services (collectively, Seller’s “Suppliers”) and gives Wholesale Electric Supply the right to pass on the same to its customers and end users.
- CANCELLATION. Wholesale Electric Supply shall have the right to cancel all or any separable part of the Purchase Order by written notice. At the time of such cancellation, Seller shall discontinue all work pertaining thereto, place no additional orders, and cancel existing orders with its Suppliers on the best possible terms. Pending Wholesale Electric Supply’s instructions, Seller shall preserve and protect material on hand, work in progress, and completed work, both in its own and in its Supplier’s plants. Cancellation payment, if any, shall be mutually agreed to by Wholesale Electric Supply and Seller, based on that portion of the Purchase Order price as the work satisfactorily performed to the date of the cancellation bears to the entire work contracted for, less any sums of money paid to Seller. Seller shall not be entitled to any prospective profits or damages because of cancellation.
- DEFAULT. If Seller breaches any provisions of the Purchase Order or so fails to make progress as to endanger timely performance and does not correct such failure within thirty (30) days after receipt of written notice from Wholesale Electric Supply specifying such failure (or within any longer cure period expressly agreed in a separate writing by Wholesale Electric Supply), Wholesale Electric Supply shall have the right, in addition to any other rights or remedies it may have under the Purchase Order or by law, to terminate the Purchase Order for default by giving Seller written notice. Upon default termination, Seller shall be liable to Wholesale Electric Supply for all costs in excess of the Purchase Order price incurred by Wholesale Electric Supply in effecting completion of performance.
- AUDITS. All transactions shall be based strictly on service, quality, and competitive price of material. Wholesale Electric Supply may, at its sole expense, audit Seller’s records including all books, papers, documents, agreements, and any other data that, in Wholesale Electric Supply’s sole judgment, may have an affect on or be related to the Purchase Order. Seller shall cooperate fully in furnishing all requested records. All audits will be conducted in accordance with generally accepted auditing standards and during normal business hours.
- Whenever used in this Section, the terms “Seller,” “Wholesale Electric Supply,” “party” and/or “parties” shall include the party’s respective directors, officers, employees, affiliates, subsidiaries and/or agents.
- SELLER SHALL INDEMNIFY AND HOLD WHOLESALE ELECTRIC SUPPLY HARMLESS FROM AND AGAINST ANY LOSS OR LIABILITY ARISING OUT OF ANY CLAIM OR CAUSE OF ACTION INCLUDING, BUT NOT LIMITED TO, CLAIMS OR CAUSES OF ACTION BASED ON NEGLIGENCE, STRICT LIABILITY OR ABSOLUTE LIABILITY FOR DESTRUCTION OF OR DAMAGE TO PROPERTY, INCLUDING SELLER’S PROPERTY, CONTAMINATION OF OR ADVERSE EFFECTS ON THE ENVIRONMENT, ANY VIOLATION OF ANY GOVERNMENTAL LAWS, REGULATIONS OR ORDERS, OR INJURIES TO OR DEATH OF PERSONS, INCLUDING SELLER’S EMPLOYEES, VENDORS, SUBCONTRACTORS, AGENTS OR ASSIGNS, TO THE EXTENT CAUSED BY, RESULTING FROM, GROWING OUT OF, OR INCIDENTAL TO THE SERVICES PERFORMED OR GOODS SUPPLIED BY SELLER OR ITS SUPPLIERS UNDER THE PURCHASE ORDER, IRRESPECTIVE OF WHETHER SUCH CLAIMS OR CAUSES OF ACTION ALLEGE OR ARE BASED IN PART UPON THE NEGLIGENCE OR FAULT OF WHOLESALE ELECTRIC SUPPLY, AND SHALL, AT THE OPTION OF WHOLESALE ELECTRIC SUPPLY, DEFEND WHOLESALE ELECTRIC SUPPLY AT SELLER’S SOLE EXPENSE IN ANY LITIGATION INVOLVING THE SAME, REGARDLESS OF WHETHER SUCH WORK IS PERFORMED OR GOODS ARE SUPPLIED BY SELLER, ITS SUPPLIERS, OR BY THEIR RESPECTIVE EMPLOYEES, AGENTS OR ASSIGNS, OR ALL OR ANY OF THEM; PROVIDED, HOWEVER, THAT SUCH INDEMNIFICATION AND HOLD HARMLESS SHALL NOT APPLY TO CLAIMS FOR LOSS, DAMAGE, INJURY, OR DEATH (OTHER THAN LOSS OF, DAMAGE TO, OR LOSS OF USE OF SELLER’S PROPERTY) TO THE EXTENT (BUT ONLY TO THE EXTENT) IT IS PROVEN BY SELLER TO HAVE BEEN CAUSED BY THE NEGLIGENCE OF WHOLESALE ELECTRIC SUPPLY.
- FORCE MAJEURE. Either party to the Purchase Order shall be free from liability for failing to perform hereunder if such failure is caused by acts of God, fires, strikes, equipment breakdown, or other causes beyond the reasonable control of the affected party. In the event either party is unable to perform for reasons beyond its control, the other party shall have the right to either accept the delay in ability to perform or terminate the Purchase Order.
- PAYMENT LIABILITY AND LIENS. Seller shall promptly pay all costs incurred by Seller in supplying the Goods and Services and shall take all action reasonably necessary to (a) avoid the attachment of a lien on Wholesale Electric Supply’s or Wholesale Electric Supply’s customer’s property, or (b) remove any lien on Wholesale Electric Supply’s or Wholesale Electric Supply’s customer’s property arising from the Purchase Order. Seller and its vendors shall promptly and satisfactorily settle any such claims. Wholesale Electric Supply shall have the right, after so notifying Seller in writing, to settle such claims for the account of Seller and deduct the amount thereof from amounts payable to Seller. Payments due may be withheld in whole or in part if Wholesale Electric Supply deems such withholding necessary to protect it from claim or loss. Seller shall indemnify, defend, and hold Wholesale Electric Supply and affiliated companies, and their respective officers and employees harmless from any causes of action, claims, liabilities, costs (including attorney’s fees), damages, losses, liens, or judgments arising out of any claims or causes of action for failure of Seller to pay for services, labor, material, supplies or equipment furnished directly or indirectly by Seller or any of its Suppliers under the Purchase Order.
- PATENTS. Seller agrees to defend and hold Wholesale Electric Supply harmless from all damages or costs (including legal costs) arising out of alleged patent infringement resulting from acceptance of the Purchase Order or the Goods and Services that Seller provides hereunder.
- PROPRIETARY INFORMATION. Any drawings furnished to Seller with or as a result of the Purchase Order will be treated as proprietary information. Drawings, data, designs, inventories, and other technical information supplied by Wholesale Electric Supply shall be held in confidence by Seller. Such information shall not be reproduced, used, or disclosed to others by Seller without Wholesale Electric Supply’s prior written consent, and shall be returned to Wholesale Electric Supply upon completion of Seller’s obligations under the Purchase Order or upon demand.
- INCORPORATION. Any specifications and drawings which are attached hereto or are referred to herein are hereby incorporated into and made a part of the Purchase Order.
- ADVERTISING. Seller shall not release any photograph, drawing, data, or any article relative to the manufacture, sale, or installation of material furnished hereunder wherein Wholesale Electric Supply or Wholesale Electric Supply’s location is named or shown, without first receiving written consent of Wholesale Electric Supply.
All transactions under the Purchase Order shall be governed by the laws of the State of Texas, without regard to the conflicts of laws principles thereof that might otherwise compel the application of the laws of any other jurisdiction.
- To the maximum extent allowed by law Wholesale Electric Supply and Seller each waive their right to a trial by jury in any litigation arising from the Purchase Order.
- Exclusive venue for any action arising under the Purchase Order or otherwise related to any Goods or Services will lie in the State and Federal district courts in and for Harris County, Texas. Seller and Wholesale Electric hereby irrevocably consent to the jurisdiction of such courts and waive any objections thereto.
- In any litigation involving the Purchase Order the prevailing party shall be entitled to receive reasonable attorney’s fees and court costs.
- ASSIGNMENT. The Purchase Order shall not be assigned without the written consent of Wholesale Electric Supply.
INSURANCE. Seller shall provide at its expense the following insurance coverage:
- Insurance which shall comply with all applicable Workers’ Compensation and Occupational Disease laws.
- Employer’s Liability Insurance shall be provided with a limit of not less than $1,000,000 per occurrence.
- General Liability Insurance with a combined single limit for personal injury and property damage of not less than $1,000,000 per occurrence. Such insurance shall include coverage for all liability assumed by Seller under the terms of the Purchase Order with limits not less than those set out above.
- Such other insurance as Seller considers necessary. The insurance requirements listed above are established by Wholesale Electric Supply as minimum limits. Wholesale Electric Supply’s requirements are not to be considered as indicative of the ultimate amounts and types of insurance which Seller may need. Seller shall require each vendor used by it in the performance of the Purchase Order to carry and pay for Workers’ Compensation and Occupational Disease Insurance which shall comply with all applicable laws, General Liability Insurance with a combined single limit for personal injury and property damage of not less than $1,000,000 per occurrence, and such other insurance as Seller may deem necessary. Seller shall furnish Wholesale Electric Supply within 30 (thirty) days after the establishment of the Purchase Order, certificates of insurance on forms approved by Wholesale Electric Supply listing all such policies. Such certificates shall provide not less than 10 days’ prior written notice to Wholesale Electric Supply in the event of cancellation or material change affecting Wholesale Electric Supply’s interests and shall include a waiver of subrogation and a Seller liability endorsement in favor of Wholesale Electric Supply. Wholesale Electric Supply shall be named as additional insured on all such policies. Neither failure to comply nor full compliance with this Paragraph 19 shall limit or relieve Seller from holding Wholesale Electric Supply harmless pursuant to Paragraph 10.
- STATUTORY EMPLOYER. Acceptance of the Purchase Order by Seller constitutes its recognition and agreement that a statutory employer relationship as envisioned by La. R.S. 23:1061(A), as amended by Act 315 of 1997 or any other similar laws, exists between Seller and Wholesale Electric Supply with respect to the material or services to be provided under the Purchase Order, as to Seller’s direct employees and its statutory employees; and that the material and services to be performed under the Purchase Order is an integral part of, or essential to, the ability of Wholesale Electric Supply to generate its own goods, products or services.
- CONSEQUENTIAL AND DELAY DAMAGES. Neither Seller nor Wholesale Electric Supply shall be liable to the other for loss of profits, loss of use, business interruption or any other special, indirect, incidental, punitive or consequential damages. Seller shall receive no payment or compensation of any kind for delays, disruptions, hindrances, inefficiencies, overtime or loss of productivity from any cause in the manufacture, shipment, installation or servicing of the material or provision of services, whether such delays, disruptions, hindrances, inefficiencies, overtime or loss of productivity are avoidable or unavoidable, but shall be entitled to so much additional time in which to complete the whole or any portion of the material required under the Purchase Order as Wholesale Electric Supply representative approves in writing based on Seller’s written change orders.
- ETHICS AND CONFLICTS OF INTEREST. Seller shall not pay any salaries, commissions or fees, or make any payments or rebates, to any employee or officer of Wholesale Electric Supply, or any designee of any such employee or officer, or favor any such employee or officer, or any designee of any such employee or officer, with gifts or entertainment of significant cost or value or with services or goods sold at less than full market value.
- Cable Length Tolerances: Seller acknowledges that the length of cable on a reel can vary depending on the Supplier and type of cable, and that variances of up to 10% may exist and are normal. Variances of 10% or less will be accepted by Wholesale Electric Supply and will not be grounds for a claim for shortage. Cable sold on reels will not be cut by Seller and Wholesale Electric Supply will be required to purchase the entire length of cable on the reel.
- Returnable Containers and Spools: If shipment requires use of returnable containers, spools or tote bins, title to such containers, spools and tote bins shall remain in Seller. Wholesale Electric Supply shall return such containers, spools and tote bins in good condition within sixty (60) days from the date of shipment, freight charges prepaid.
- No Waiver: The failure of Wholesale Electric Supply to insist, in any one or more instances, on the strict performance of any of the terms or provisions set forth in these Terms and Conditions, or to exercise any right or remedy provided for herein, will not be deemed or construed as a waiver of any such term, provision, right or remedy or the right to insist on strict performance in the future.
- Severability: If any provision contained in these Terms and Conditions is held to be invalid, illegal, unenforceable, or otherwise void by a court of competent jurisdiction, the remaining provisions of these Terms and Conditions shall not be affected and shall continue in full force and effect.
- Entire Agreement: The Purchase Order, these Terms and Conditions, and documents that are incorporated into either, whether by reference, attachment or otherwise, set forth the entire agreement between Wholesale Electric Supply and Seller and no terms, conditions, understanding, or agreement purporting to modify or vary the terms of the Purchase Order shall be binding unless hereafter made in writing and signed by Wholesale Electric Supply and Seller.