Terms and Conditions of Sale For Energy Cable Products
Last Updated: February 15, 2017
These Terms and Conditions of Sale (the “Terms”) govern Buyer’s purchase of any energy cable products (the “Products”) from LS Cable & System U.S.A., Inc. (“Seller”). Buyer’s purchase of the Products is limited to the terms and conditions contained herein. If these Terms are first tendered to Buyer before Buyer tenders a purchase order or similar document to Seller, these Terms are in lieu of any terms later submitted by Buyer and Seller rejects all additional or different terms and conditions of Buyer, whether confirmatory or otherwise. If Seller tenders these terms after the tender by Buyer of other terms, whether as part of a purchase order or otherwise, then Seller’s acceptance of any offer by Buyer associated with Buyer’s terms is expressly conditioned upon Buyer’s acceptance of these Terms exclusively and to the exclusion of any proffered Buyer terms or conditions, regardless of whether these Terms contain any terms additional to, or different from, any terms proffered by Buyer. Buyer’s performance, or acceptance of, or payment for, any products from Seller will constitute Buyer’s acceptance of these Terms exclusively. If there is an executed written sales agreement or quotation in effect between the parties (a “Sales Agreement”), these Terms form a part thereof. Waiver by Seller of any breach, remedy or provision of these Terms shall not be construed to be a waiver of any succeeding breach or any other provision or legal remedy of Seller. The section headings of these Terms are for ease of reference only and shall not be admissible in any action to alter, modify or interpret the contents of any section hereof. The International Convention on the Sale of Goods shall have no application to any sales of Products hereunder.
2. PRICE, CHARGES AND PAYMENT
Orders are not binding upon Seller until accepted by Seller in its sole discretion. No order submitted by Buyer shall be deemed accepted by Seller unless and until either confirmed in writing by Seller or by delivery of the Product specified in the order, and then only on these Terms. Seller may modify Buyer’s order where necessary as follows: (a) substituting the latest or correct part number or part description for the part number or part description set forth on the order; (b) substituting Seller’s prices in effect as applicable to the order; (c) substituting an estimated delivery schedule which is reasonable (considering Seller’s stock availability and lead time); and (d) correcting any stenographical or typographical error. Prices for energy cable products will be adjusted at the time of shipment to reflect the closing COMEX metal price on the date prior to the ship date. Seller’s current ancillary charges apply as applicable to the order such as parallel, cut, wood lagging, gas pressure, pulling eye and lift gate charges.
Fees for and relating to the Products are subject to adjustment in the event there are cost increases created by circumstances such as, but not limited to, changes in government energy policies, fuel and energy increases, metal premium or metal processing charges, chemical or material price increases, material and supply shortages, transportation and shipping costs. Any accepted order requiring special manufacturing processes, inspection, specified weight, packaging, test results, certification, etc., is subject to additional charges.
Unless otherwise agreed to by Seller in writing, Buyer agrees to pay all amounts due to Seller within thirty (30) days from the date of invoice. Overdue payments shall bear interest and service charges from the due date until paid at a rate of 1.5% (.015) per month or the maximum legal rate, whichever is less, and any collection costs of Seller. FAILURE TO PAY ANY AMOUNT WHEN DUE VOIDS ALL WARRANTIES.
Credit is extended at the sole discretion of Seller. If credit has been extended, the amount of credit may be changed or credit withdrawn by Seller at any time, in its sole discretion. If a cash discount is stipulated, it is subject to Buyer’s entire account being current. Any discounts given to Buyer by Seller in relation to the price of the Products are conditional upon payment for the Products being made strictly in accordance with the Sales Agreement and these Terms and to Buyer’s entire account for all products purchased from Seller being current.
3. DELIVERY, TITLE, RISK OF LOSS, AND SHIPPING OF PRODUCTS
Title to and risk of loss of the Products shall pass to Buyer upon tender of such Products to Buyer at Seller’s factory or a common carrier. Unless otherwise agreed by Seller in writing, shipping terms shall be Ex Works (Incoterms 2010) Seller’s factory or warehouse. Seller’s weights shall govern provisional and final settlement. Any shipping date provided by Seller is the Seller’s best estimate and will not operate to bind Seller to ship or make deliveries on such date. All shipments shall be subject to Seller’s then current shipment terms, including its Freight Policies, Freight Damage Policies, and minimum order values.
Buyer must thoroughly inspect the Products at the time of receipt for signs of damage, discrepancies or a shortage. Inspections of the Products at the time of delivery shall be commenced in the presence of the carrier’s driver and Buyer shall note on the freight bill any shortages, discrepancies or damages of any Product received on the carrier's receipt. If concealed loss or damage is discovered, Buyer must report it to the carrier within 15 days from the date of receipt.
4. LIMITED WARRANTIES AND DISCLAIMERS
Seller warrants to Buyer that at the time of delivery the Products will conform substantially to Seller’s specifications identified in the applicable Product Data Sheets (“Specifications”). As Buyer’s sole and exclusive remedy and Seller’s entire liability for any breach of the foregoing warranty, Seller will, at its sole option and expense, either refund the purchase price paid, repair or replace the Product which fails to meet this warranty upon return of the nonconforming Product; provided, Buyer notifies Seller of noncompliance in writingwithin one (1) year of delivery of such Product.
Transportation charges to and from Seller’s location for the return of all nonconforming Products to Seller and their re-shipment to Buyer and the risk of loss thereof will be borne by Seller. Buyer shall use Seller’s designated carrier for all re-shipments. These warranties do not apply to any Product that was not properly stored or handled by the Buyer, that was repaired or altered or was otherwise subject to abuse, neglect or improper use by Buyer or a third party, or that has any stage of processing performed on it which causes the defect. EXCEPT WITH RESPECT TO THE SPECIFIC WARRANTIES SET FORTH IN THIS SECTION 4 OF THESE TERMS, SELLER MAKES NO OTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS OR PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Without limitation, under no circumstances shall Seller be liable for any costs associated with reworking, re-manufacturing or scrapping goods in which defective Product supplied by Seller was incorporated, for any costs associated with production stoppages, machinery breakdown or recall campaigns, or for any troubleshooting, administrative or engineering charges.
5. CLAIMS OF PATENT INFRINGEMENT
Seller shall conduct, at its own expense, the entire defense of any claim, suit, action or other proceedings (“Claim”) brought against Buyer by a third party alleging that any Product manufactured by Seller infringes upon any United States patent of any third party; provided, however: (i) Seller receives prompt written notice of the Claim; (ii) Seller has full control of the defense and all related settlement negotiations; (iii) the Products are made according to a specification or design furnished by Seller, or if a process patent is involved, the process performed by the Products are recommended in writing by Seller; and (iv) Buyer provides Seller with all necessary assistance, information and authority to perform the defense and negotiate settlement thereof. Provided all four of the foregoing conditions are met, Seller shall, at its own expense, either settle said Claim or shall pay all damages (excluding incidental, consequential, statutory, or punitive damages) and costs awarded by the court therein. If the use or resale of such Products is finally enjoined, Seller shall, at Seller’s option, procure for Buyer the right to use or resell the Products, replace them with equivalent non-infringing Products, modify them so they become non-infringing but equivalent, or remove them and refund the purchase price (less a reasonable allowance for use, damage or obsolescence). Buyer shall indemnify and hold Seller harmless from all Claims based upon (i) the use of a Product customized for Buyer based on Buyer’s ideas, specifications or designs, (ii) the performance of a process performed by the Products not recommended in writing by Seller, or (iii) the use or sale of the Products delivered hereunder in combination with other products not delivered to Buyer by Seller.
6. EXCUSABLE PERFORMANCE
Seller is excused from performing any of its obligations under these Terms, any order or Sales Agreement if its performance is prevented, hindered or delayed by delays of suppliers, acts of God, nature, governments or their agencies, terrorism, war or sabotage, compliance in good faith with any applicable foreign or domestic governmental regulation or order (whether or not it proves to be invalid), fires, riots, inability to supply or obtain , products, materials, raw materials, supplies, fuel or utilities from normal sources of supply, labor disputes, work stoppages, lockouts, delays in transportation, earthquakes, floods, storms or other severe weather conditions, power shortages or power failures or any other events or circumstances beyond Seller’s reasonable control (an “Event”). To the extent an Event delays Seller’s performance, such performance shall be extended for as many days beyond the due date until the delay concludes; provided, however, if Seller is unable to perform any of its obligations under any order due to an Event for more than thirty (30) days, it may in its sole option terminate, without liability or penalty, any Sales Agreement, order or obligation in whole or in part. It is expressly understood that the Seller has available a limited source for the materials used by Seller in the manufacture of the Products. If there is an interference, limitation or cessation of any material from Seller’s source of supply for any reason, Buyer agrees to relieve the Seller temporarily, proportionately, or permanently of liability under these Terms or any Sales Agreement or order, depending upon whether the interruption of the source of supply is a temporary interruption, a reduced delivery of materials, or a permanent cessation of supply. In the event there is a Product shortage pursuant to this section, Seller may ration and distribute such Products as it deems appropriate.
7. TAXES AND EXPORTS
Any and all taxes (not including any U.S. income or excess profit taxes attributable to Seller) which may be imposed by any taxing authority, arising from the sale, delivery or use of the Products and for which Seller may be held responsible for collection or payment, either on its own behalf or that of Buyer, shall be paid by Buyer to Seller upon Seller’s demand. Export orders are subject to applicable export regulations and requirements. Buyer disclaims in favor of Seller any right or interest in, the drawback of duty, taxes or surcharges paid on imported material contained in the Products.
8. FINANCIAL RESPONSIBILITY OF BUYER
Buyer’s solvency is a condition of Seller’s performance and Seller may, at any time, in its sole discretion for credit reasons (including a good faith belief that a current or future payment is or may be impaired) or because of Buyer’s breach of this or any other agreement with Seller, suspend or change credit terms, fix a limit on credit, require progress payments, demand payment in full of any outstanding balance, withhold shipments, demand COD or request other assurances of payment, cancel or terminate any order or agreement or repossess all Products previously delivered, which Products shall become the absolute property of Seller subject to credit therefore. Buyer grants to Seller a security interest in Products delivered hereunder to secure Buyer’s obligations under these Terms and any Sales Agreement and grants to Seller the right to execute, deliver, and/or file any financing statement or do any other thing reasonably necessary to perfect Seller’s security interest. Notwithstanding any other provision of these Terms, Seller reserves the right in its absolute discretion from time to time to require payment in full of the price of the Products before delivery of all or any of the Products.
Seller may terminate any order or Sales Agreement by written notice to Buyer if (i) a receiver or trustee is appointed for any of Buyer’s property; (ii) Buyer is adjudicated or voluntarily becomes bankrupt or a debtor under any bankruptcy, dissolution or reorganization laws or similar law; (iii) Buyer becomes insolvent or makes an assignment for the benefit of creditors; (iv) an execution is issued pursuant to a judgment rendered against Buyer; or (v) Buyer is unable or refuses to make payment to Seller. If any order or Sales Agreement is terminated by Seller pursuant to this section, Seller shall be relieved of any further obligation to Buyer and Buyer shall reimburse Seller for its termination costs and expenses and a reasonable allowance for profit.
In addition to any right of set off or recoupment provided by law, Buyer agrees that all its accounts with Seller will be administered on a net settlement basis and that Seller may set off debits and credits, including Seller’s attorney fees and costs of enforcement, against any of Buyer’s accounts regardless of the basis for such debits and credits and without advance notice. In this section, “Seller” includes Seller’s parent, subsidiaries and affiliates, and “Buyer” includes Buyer’s parent, subsidiaries and affiliates.
9. CANCELLATIONS AND RETURNS
All orders accepted by Seller are non-cancelable unless (i) such order is cancelled in writing thirty (30) days prior to the scheduled ship date and (ii) the Products ordered were not manufactured as special or customized items. A cancellation fee of 10% of the quoted price shall apply. If paid for, cancelled Products may be returned for credit only. Return of any Product must be authorized by Seller. Seller will provide Buyer a Return Material Authorization number for all authorized returns which must be shown on the returned Product and associated shipping documents. Standard stock items are returnable at invoice price less a 20% restocking charge, freight prepaid by Buyer to the plant of manufacture or Seller’s designated location. Non-stock items, special items and/or custom length cut reels of energy cables are final sales and not subject to return. All material must be returned to Seller undamaged and in the original packaging.
10. CHANGES — PROCESS, MATERIAL AND PRODUCT DESIGN
Seller continually develops and uses new processes, materials and product designs in an effort to improve its Products, while maintaining conformity to the Specifications. If Buyer’s applications of the Products rely upon any performance, dimensional or constant criteria other than as required by the applicable Specifications, Buyer must conduct regular testing or evaluation of those specific Products. Seller makes no warranty or representation of any nature that any material shipped conforms to any material of like product description as may have previously been delivered to Buyer.
11. LIMITATION OF LIABILITY
IN NO EVENT WILL SELLER BE LIABLE TO BUYER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, DELAY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF DIRECT OR INDIRECT PROFITS, REVENUE, OR USE, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, EVEN IF BUYER OR ANY OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SELLER’S AGGREGATE LIABILITY TO BUYER EXCEED ALL AMOUNTS ACTUALLY PAID BY BUYER TO SELLER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF THE LIMITED REMEDY SET FORTH IN SECTION 4.
Buyer will not disclose to third persons any proprietary or confidential information of Seller concerning its business and operations, including without limitation, pricing information, for a period of five (5) years from the date such confidential information was learned or for confidential information meeting the definition of “trade secret” under applicable law, until such information is no longer a “trade secret.” The obligations of confidentiality in this Section 12 do not apply to Confidential Information to the extent that the Confidential Information becomes readily ascertainable by proper means by the public other than through breach of this Section 12 by Buyer.
13. CHOICE OF LAW
These Terms and all accepted orders shall be construed in accordance with the laws of the State of Georgia, United States of America without regard to its conflict of law principles. Buyer agrees that any and all disputes with Seller, including contract and tort claims, shall be resolved in the state and federal courts situated in Georgia, and that these courts shall have the exclusive jurisdiction over all such disputes and Buyer consents to the personal jurisdiction in these courts. Any action brought by Buyer against Seller shall be within one (1) year after the cause of action arises or it shall be deemed forever waived.
14. ADDITIONAL TERMS
The provisions of these Terms and the Sales Agreement, if any, constitute the entire agreement between Buyer and Seller with respect to the matter contained herein and supersedes any prior oral or written communications, understanding, representations, proposals or agreements with respect to such subject matter. Seller may revise these Terms from time to time. These Terms may not be amended or modified by the Buyer except upon the execution of a written agreement signed by both parties indicating an intent to modify these Terms. Neither Buyer nor Seller may assign any of its rights or obligations hereunder or under any order; provided, however, that Seller shall be permitted to assign any of its rights or obligations under these Terms, Sales Agreement or any order in connection with the sale or transfer of all or substantially all of its business, whether by merger, reorganization, consolidation, transfer of assets, transfer of equity interests, or otherwise. If any provision of these Terms or a Sale Agreement is invalid, unenforceable or in conflict with any law, such provision shall be deemed severed from these Terms and/or the Sale Agreement and the validity of the remainder of these Terms and/or the Sale Agreement shall not be affected thereby. The provisions of these Terms that by their nature are reasonably intended by the parties to survive the expiration or termination of the Terms or any accepted order, including without limitation sections 4, 5, 11, 12, 13 and this section 14, shall survive the expiration or termination of the Terms or any accepted order.