TERMS AND CONDITIONS OF SALE
EXCLUSIVE TERMS AND CONDITIONS. All sales of goods, materials and services (collectively “Products”) by Wholesale Electric Supply Company of Houston Inc. and its affiliates (“Wholesale Electric”) are made subject to these Terms and Conditions of Sale (“Terms and Conditions”). By requesting a quote from or submitting a contract or purchase order to Wholesale Electric, the buyer (“Buyer”) agrees that these Terms and Conditions will be the EXCLUSIVE terms and conditions applicable to any sale of Products by Wholesale Electric. Delivery of Products by Wholesale Electric to Buyer under Buyer’s purchase order form will not constitute acceptance of Buyer’s terms and conditions. Wholesale Electric objects to and rejects and excludes any changes or additional or different terms (whether contained in a purchase order accepted by Wholesale Electric, or otherwise) and no such terms will alter or expand these Terms and Conditions. Buyer’s acceptance is hereby expressly limited to the terms set forth in these Terms and Conditions. No modification of these Terms and Conditions will be valid or enforceable unless reduced to writing and signed by an officer or Branch Manager (“Authorized Representative”) of Wholesale Electric; no sales representative or other employee or agent of Wholesale Electric has the authority to modify these Terms and Conditions. Wholesale Electric further objects to and rejects and excludes any terms between Buyer and any other party, and no such terms, including but not limited to any government regulations or "flowdown” terms, shall be a part of or incorporated into any order from Buyer to Wholesale Electric. Any order for, direction to proceed, statement of intent to purchase, purchase or acceptance of Products by Buyer will constitute Buyer’s acceptance of and agreement to these Terms and Conditions.
ACCEPTANCE OF ORDERS. Acceptance of any order by Wholesale Electric is subject to (a) Buyer’s acceptance of these Terms and Conditions in accordance with Section 1 hereof, (b) approval of Buyer’s credit by Wholesale Electric, (c) written acceptance (subject to Section 1 hereof) of Buyer’s order by Wholesale Electric and, when applicable, by any suppliers, manufacturers, vendors, or other third parties that provide goods to Wholesale Electric for resale (collectively, “Suppliers”).
- PRICES AND QUOTES. Unless otherwise expressly provided in a quote signed by an Authorized Representative of Wholesale Electric, all prices are subject to change at any time and the price of all Products will be the price in effect at the time that Wholesale Electric accepts an order from Buyer. All quotes and proposals provided by Wholesale Electric expire thirty (30) days from the date of the quote or proposal unless otherwise specifically provided in the quote or proposal. This time limit applies even if Buyer uses the quote or proposal to submit a job or project bid to any other party. Prices on special-order Products may be subject to change before the order is received by the Supplier; Wholesale Electric shall notify Buyer of any change, and Buyer may at its discretion cancel the special-order Products if the revised prices are unacceptable, without charge other than applicable third-party related charges.
- TAXES. Prices quoted by Wholesale Electric do not include, and Buyer will be solely responsible for payment of, sales taxes, duties or other taxes imposed on the sale of the Products. Wholesale Electric shall collect applicable sales taxes from Buyer unless Buyer submits a valid tax exemption certificate and certifies which Products are tax exempt. Buyer will indemnify and defend Wholesale Electric against all claims for taxes due on the Products that are not paid by Buyer.
- SHIPPING AND DELIVERY; TITLE; RISK OF LOSS. Shipping and delivery dates are approximate and are not guaranteed. Prices quoted by Wholesale Electric do not include shipping, delivery or handling charges. All Products will be delivered to Buyer F.O.B. (or “Free Carrier” under Incoterms 2010) at the Wholesale Electric point of origin, provided that, unless otherwise expressly and specifically stated in Wholesale Electric’s written quote or otherwise agreed in writing by Authorized Representative of Wholesale Electric, title to and risk of loss pass to Buyer upon tender of the Products to the carrier. Notwithstanding the foregoing, upon prior written approval of an Authorized Representative of Wholesale Electric, Products may be delivered to a jobsite by Wholesale Electric or its affiliated delivery service, in which event title to and risk of loss for such Products pass to Buyer upon arrival of the Products at the jobsite.
- PAYMENT TERMS. Payment is required at the time the order is accepted by Wholesale Electric unless Buyer has an approved open credit account, in which event payment terms are net 30 days from the invoice date or upon such other terms approved in writing by an Authorized Representative of Wholesale Electric. Buyer shall pay the full amount of all invoices; no prompt payment or other discount shall apply unless specifically agreed to in writing by and Authorized Representative of Wholesale Electric. Payment to Wholesale Electric is not contingent on Buyer’s ability to collect or obtain funds from any other party. Wholesale Electric may apply payments to any outstanding invoices unless Buyer provides specific payment instructions.
- CREDIT TERMS. Wholesale Electric, in its sole discretion, may determine that Buyer’s financial condition requires full or partial payment prior to placing any special order for or shipment of Products. Wholesale Electric may (a) obtain and use Buyer’s credit history for credit evaluation purposes, (b) establish a credit limit for Buyer’s account, and (c) increase or decrease such credit limit from time to time, in its sole discretion. Wholesale Electric reserves the right to refuse to make shipments to Buyer if such shipments would cause Buyer to exceed such credit limit. Wholesale Electric’s failure to enforce the credit limit in any instance shall not constitute a waiver of Wholesale Electric’s right to subsequently enforce the credit limit. Wholesale Electric shall be under no obligation to hold or store Products for Buyer beyond the scheduled shipment date if, on such date, Buyer’s account would exceed the established credit limit if shipments were made. Products so affected may, at Wholesale Electric’s option and after written notice to Buyer, be shipped to another customer, or treated by Wholesale Electric as canceled, subject to cancellation charges to cover Wholesale Electric’s costs in relation to such cancellation. In lieu of extending credit, Wholesale Electric will have the right, in its sole discretion, to require security acceptable to Wholesale Electric from Buyer. Such security may include, without limitation, a cash-in-advance deposit or an acceptable letter of credit prior to delivery of any Products. If Wholesale Electric, in its sole discretion, determines that Buyer’s financial condition, ability to pay or credit is or becomes unsatisfactory, Wholesale Electric, at its option and without prejudice to its other rights and remedies, may (i) suspend delivery of Products, or (ii) place Buyer’s shipments on a cash-in-advance status until arrangements are made for security or other assurances satisfactory to Wholesale Electric.
- REMEDIES FOR NON-PAYMENT. If Buyer fails to pay Wholesale Electric in accordance with the payment terms set forth herein, then Wholesale Electric, at its option and without prejudice to its other rights and remedies, may (a) immediately terminate the delinquent order and any other order(s) then in effect with Buyer and without notice, and apply any amounts paid by Buyer in respect of any order (whether delinquent or not) to cancellation costs and damages relating to that order and/or any other order, (b) suspend deliveries on any and all orders until all indebtedness is paid in full, and/or (c) place Buyer’s shipments on a cash-in-advance basis. In the event of default in payment, Buyer shall pay Wholesale Electric’s costs of collection, including, but not limited to, reasonable attorneys’ fees and court costs. Any amounts that remain due and owing after the due date shall bear interest from the due date until payment is actually received by Wholesale Electric at a rate equal to the lesser of 1½% per month (18% per annum) or the maximum non-usurious rate of interest allowed by applicable law. Buyer acknowledges that the transactions to which these Terms and Conditions relate are commercial transactions.
- SECURITY INTEREST; RECLAMATION. Buyer hereby grants Wholesale Electric a security interest in all Products delivered by Wholesale Electric to Buyer on credit until the purchase price for such Products has been paid in full by Buyer. Buyer and Wholesale Electric agree that these Terms and Conditions shall constitute a security agreement between Buyer and Wholesale Electric with respect to such Products, in accordance with the provisions of the Uniform Commercial Code. Buyer authorizes Wholesale Electric to file financing statements and such other documents as are necessary to perfect Wholesale Electric’s security interest in such Products or the proceeds of such Products. By submitting an order, Buyer represents that Buyer is solvent at the time the order is submitted. In the event of insolvency of Buyer, Wholesale Electric hereby makes a demand for reclamation of Products delivered to Buyer but not yet paid for by Buyer. In the event of insolvency of Buyer, Buyer agrees to promptly notify Wholesale Electric of such insolvency, Buyer hereby waives any defenses to Wholesale Electric’s right of reclamation of such Products, and Buyer shall promptly return possession to Wholesale Electric of such Products at Buyer’s expense. In addition and without prejudice to the foregoing, Wholesale Electric hereby reserves any and all rights it may have under applicable law in respect of liens, claims of liens, notices regarding funds to be retained or reserved , ad similar rights for the benefit of suppliers of good and services and other parties, including without limitation under Sections 53 and 56 of the Texas Property Code and similar laws of Texas and any other jurisdiction.
- PRODUCT SPECIFICATIONS; USE AND SAFETY. Wholesale Electric does not warrant or guarantee that any Products conform to any plans and specifications or intended use, whether or not such use is specified by Buyer. When plans and specifications are involved in a purchase of Products, Buyer is solely responsible for verifying Wholesale Electric’s interpretations of such plans and specifications, and for confirming that the Products will be accepted on and are appropriate for any specific job. When Wholesale Electric offers substitute Products on any proposal, Buyer is solely responsible for confirming their acceptability. Before Buyer uses or installs electrical products, Buyer shall consult the National Electric Code and any applicable local, state or national codes, rules or regulations for approved installation procedures and precautions. Products sold by Wholesale Electric are NOT intended and are NOT to be used in connection with "safety-related’’ applications of a nuclear facility or any hazardous activity where failure of a single component could cause substantial harm to persons or property.
- DELIVERY DATES. Wholesale Electric is a distributor and not a manufacturer and factory shipping dates given by Wholesale Electric in advance of actual shipment are approximate and not guaranteed by Wholesale Electric. Wholesale Electric shall have no liability if its performance is delayed or prevented by causes beyond its reasonable control, including, without limitation, acts of God or nature, labor disputes, government priorities, transportation delays, insolvency or other inability or failure to perform on the part of Suppliers, or any other commercial impracticability. In the event of any such delay, the date of delivery or Wholesale Electric’s performance shall be extended for a period equal to the time lost by reason of delay. Should shipments be held or stored beyond the delivery date for convenience of Buyer, Wholesale Electric may, at its option, assess reasonable storage charges and other charges for any expense incident to such delay.
CANCELLATION AND RETURN POLICIES.
- Products that Wholesale Electric routinely stocks in inventory (“Stock Products”) will be eligible for return within ninety (90) days from the date of sale if they are in their original packaging, unopened, undamaged and unused. Proof of purchase is required. Buyer is responsible for the cost to return Stock Products to the original Wholesale Electric point of origin. Upon receipt, Wholesale Electric will inspect the Stock Products and, if accepted for return, will issue Buyer a credit in the amount of the sales price less a 25% restocking fee. Credits will be available for use by Buyer for a period of twelve (12) months following the date of issue; any credits not used by Buyer to within that time will be forfeited. Refunds require the prior written approval of an Authorized Representative of Wholesale Electric.
- Products that are special ordered for Buyer, ordered at Buyer’s request in quantities that are not routinely stocked by Wholesale Electric, or are otherwise not returnable by Wholesale Electric to its Supplier (“Special Order Products”) are not returnable. All sales of Special Order Products are final.
- Orders for Special Order Products may not be canceled by Buyer once accepted by Wholesale Electric. Orders for Stock Products that are canceled after acceptance by Wholesale Electric and prior to delivery of the Products to Buyer will be subject to a cancellation fee equal to the greater of (i) 25% of the sales price, or (i) expenses, including attorney’s fees, incurred by Wholesale Electric in settling its terminated orders and subcontracts with Suppliers.
- CLAIMS. Claims for any nonconforming Products or shortages must be made by Buyer, in writing, within ten (10) days of Buyer’s receipt of such Products. Failure by Buyer to give notice within such ten (10) day period shall constitute an unqualified acceptance of such Products by Buyer, and a waiver of any right to reject or revoke acceptance of such Products.
- Title Warranty: Wholesale Electric warrants that, except for the liens and security interests granted by Buyer under these Terms and Conditions or rights to liens and similar claims under applicable law reserved by Wholesale Electric, all Products are being sold free and clear of any third-party liens and security interests. Buyer’s SOLE AND EXCLUSIVE REMEDY for breach of such warranty shall be termination of any liens or security interests by Wholesale Electric.
- Supplier Warranties: Warranty for Products shall be limited to the Product manufacturer's pass-through warranty to the extent provided by the Supplier. Wholesale Electric shall assign to Buyer any Supplier warranties and/or remedies provided to Wholesale Electric by its Suppliers. BUYER ACKNOWLEDGES AND AGREES THAT WHOLESALE ELECTRIC IS STRICTLY A DISTRIBUTOR OF PRODUCTS AND IS NOT A MANUFACTURER, FABRICATOR OR PACKAGER OF ANY PRODUCTS BEING SOLD.
- Intellectual Property Infringement: Wholesale Electric disclaims any and all warranties and/or indemnifications against infringement of any intellectual property rights of any nature. Wholesale Electric shall, if given prior notice by Buyer of any claim of intellectual property infringement with respect to any Products sold hereunder, request the Supplier to grant to the Buyer such warranty or indemnity rights as the Product manufacturer may customarily give with respect to such Products.
- Disclaimers: THE EXPRESS WARRANTY SET FORTH IN SUBSECTION (a) OF THIS SECTION IS THE ONLY WARRANTY MADE BY WHOLESALE ELECTRIC WITH REGARD TO PRODUCTS SOLD BY WHOLESALE ELECTRIC. WHOLESALE ELECTRIC MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE PRODUCTS BEING SOLD. WHOLESALE ELECTRIC HEREBY EXPRESSLY EXCLUDES, DISCLAIMS AND NEGATES ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR REPRESENTATIONS OR WARRANTIES AS TO QUALITY OR CORRESPONDENCE WITH PRIOR DESCRIPTION OR SAMPLE. BUYER ASSUMES ALL RISK AND LIABILITY WHATSOEVER RESULTING FROM THE USE OF PRODUCTS SOLD BY WHOLESALE ELECTRIC, WHETHER USED SINGLY OR IN COMBINATION WITH OTHER GOODS. Descriptions of Products on the Wholesale Electric web site, sales materials, purchase orders and invoices are for the sole purpose of Product identification and DO NOT constitute representations or warranties on the part of Wholesale Electric. Safety Data Sheets (“SDS”) for Products that contain hazardous substances are prepared and provided by the manufacturer of the Product. Wholesale Electric makes no representations or warranties, and hereby expressly disclaims all representations or warranties (express or implied), concerning the accuracy or completeness of any SDS.
- Buyer Warranty: Buyer represents and warrants to Wholesale Electric that (i) Buyer has purchased the Products based on its own inspection and independent judgment and expressly disclaims any reliance upon any prior statements made by Wholesale Electric, (ii) each of the Products is of a size, design, capacity and manufacture selected by Buyer, and (iii) Buyer has satisfied itself that the Products are suitable for Buyer’s intended purposes.
- LIMITATION OF LIABILITY. Wholesale Electric’s and its Supplier’s total liability to Buyer, Buyer’s customers or to any other person, relating to any purchases governed by these Terms and Conditions, from the use of the Products furnished or from any advice, information or assistance provided by Wholesale Electric (by any method, including a web site), is limited to the price paid by Buyer for the Products giving rise to the claim. IN NO EVENT SHALL WHOLESALE ELECTRIC OR ITS SUPPLIERS EVER BE LIABLE (REGARDLESS OF THE THEORY ON WHICH ANY CLAIM MAY BE BASED, WHETHER IN CONTRACT, TORT, INFRINGEMENT, STRICT LIABILITY, WARRANTY OR OTHERWISE) FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR LOST PROFITS OR BUSINESS OPPORTUNITIES OR DAMAGE TO REPUTATION. Specifically, and without limitation of the foregoing, Buyer waives the right to assert any claims for back charges, labor costs, costs of removal, replacement, testing or installation, loss of efficiency, loss of profits or revenues, loss of use of the Products or any associated goods, damage to associated goods, lateness or delays in delivery, unavailability of Products, cost of capital, cost of substitute goods, facilities or services, downtime, or claims from Buyer’s customers or other parties. If Wholesale Electric furnishes Buyer with advice or other assistance which concerns any Products supplied hereunder, or any system or equipment in which any such Products may be installed, and which is not required pursuant to these Terms and Conditions, the furnishing of such advice or assistance will not subject Wholesale Electric to any liability, whether based on contract, warranty, tort (including negligence) or other grounds. Buyer agrees to INDEMNIFY, DEFEND and HOLD HARMLESS Wholesale Electric from and against any and all claims, demands and causes of action that may be asserted against Wholesale Electric by third-parties (including, without limitation, Buyer’s customers) arising from or in any way related to the Products.
- Cable Length Tolerances: Buyer 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 Buyer and will not be grounds for a claim for shortage. Cable sold on reels will not be cut by Wholesale Electric and Buyer 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 Wholesale Electric and Buyer shall make a security deposit in an amount required by Wholesale Electric at the time the shipment is ordered. Such containers, spools and tote bins shall be returned in good condition within 60 days from the date of shipment, freight charges prepaid. Upon return within the time period required, Wholesale Electric shall refund the security deposit; otherwise, the security deposit will be forfeited by Buyer
- Substitutions: Unless otherwise specifically provided in an order, Products (including manufacturer and country of origin) may be substituted and may not be identical to catalog or website descriptions or images.
- Assignment: Buyer shall not assign its rights under an order without the prior written approval of Wholesale Electric and any such purported assignment without approval shall be void and unenforceable. Nothing herein expressed or implied will give or be construed to give to any person, other than Wholesale Electric and Buyer and their respective successors and permitted assigns, any legal or equitable rights hereunder.
- Compliance with Laws: Buyer shall comply with (i) all applicable laws, rules, ordinances and regulations, from whatever governmental authority they may emanate, related to the ownership, transportation and use of the Products, (ii) all applicable U.S. laws and export control regulations, including but not limited to EPA, OSHA, Commerce Department, State Department and Treasury Department regulations, (iii) all applicable export control and trade embargo laws, rules and regulations (including but not limited to the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, the regulations administered by the Department of the Treasury’s Office of Foreign Assets Control and the U.S. Foreign Trade Statistics Regulations). Buyer shall not resell, export, re-export, distribute, transfer or dispose of Products, directly or indirectly, without first obtaining all necessary written consents, permits, authorizations, and licenses and completing such formalities as may be required by any such laws, rules and regulations. Orders for Products to be exported must be accepted by an Authorized Representative of Wholesale Electric. Buyer shall not name Wholesale Electric as shipper or exporter of record in connection with the export of any Products.
- No Waiver: The failure of Wholesale Electric 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.
- Entire Agreement: These Terms and Conditions supersede and replace all other communications, negotiations, and oral or written statements, and constitute the entire agreement and understanding between the parties, concerning the sale and purchase of Products. These Terms and Conditions shall not be modified or amended orally, by the terms of purchase orders or other documents issued unilaterally by either party (and the terms proposed by any such purchase order or other documents are specifically objected to and shall not be the basis for any contract regarding Products), or by any course of dealing or trade usage.
- 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.
- Governing Law: These Terms and Conditions and all disputes related to Products 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. Exclusive venue for any action arising under an order or these Terms and Conditions or otherwise related to any Products will lie in the State and Federal district courts in and for Harris County, Texas. Buyer and Wholesale Electric hereby irrevocably consent to the jurisdiction of such courts and waive any objections thereto.
- Jury Trial Waiver. To the maximum extent allowed by law, Buyer and Wholesale Electric expressly waive their right to a trial by jury in any litigation arising in connection with any dispute arising from an order or these Terms and Conditions or any Products.
- Wholesale Electric Parties: For the purposes of these Terms and Conditions, the term “Wholesale Electric” shall include Wholesale Electric Supply Company of Houston, Inc. and any of its related entities set forth on the quotation or other sales agreement to which these Terms and Conditions are attached or in which they are incorporated by reference and includes Wholesale Electric’s subsidiaries, affiliates, and business units.