1. APPLICABILITY. These Terms and Conditions of Sale (“Terms”) are the only terms and conditions which govern the sale of the goods (“Goods”) by Cable Components Group, LLC (“Seller”) to buyer (“Buyer”) and supersede all other terms and conditions, oral or written, between the parties suggesting additional or different terms.
2. ENTIRETY. These Terms represent the final and complete understanding of the parties and may be amended or cancelled only by mutual written agreement. Any proposal for additional or different terms or any attempt by Buyer to vary these Terms is hereby deemed material and is objected to and rejected. No terms of any document or form submitted by Buyer shall be effective to alter or add to these Terms. The earlier of Seller’s commencement of performance or Buyer’s receipt of any of the Goods shall constitute acceptance of these Terms. If a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
3. PRICES. Prices quoted are based on the price at the time of quotation and are subject to change without notice. Clerical errors are subject to correction without liability.
4. TAXES. Prices do not include any sales, use, excise, privilege, duty, levy, tariff, or other fee, tax or assessment now or hereafter imposed by or under the authority of any foreign, federal, state, or local law, rule, or regulation (collectively, “Law”) concerning the Goods or the manufacture or sale thereof. If Seller pays any such fees, taxes or assessments, Buyer shall, upon demand, immediately reimburse Seller for such amounts.
5. TERMS OF PAYMENT. Payments for Goods are due net 30 days from date of invoice, unless otherwise set forth on invoice to Buyer. Payments for made to order or custom Goods may require progress payments as determined by Seller.. All orders are subject to acceptance in writing by Seller. No discounts shall be taken unless specifically allowed in writing by Seller. All amounts due Seller from Buyer shall be paid without abatement, deduction, or setoff. The date of payment of an invoice shall be the date the payment is received by Seller at the location designated on the invoice. Invoices not paid when due are subject to a late payment service charge as determined by Seller, but in no event greater than 1.5% per month, calculated daily and compounded monthly. If Buyer fails to make any payment when due, Buyer shall be liable for all costs and expenses related to collection of past due amounts, including, without limitation, attorneys’ fees and costs. If, in Seller’s judgment, the financial condition of Buyer does not justify continuance on these terms of payment, Seller may require full or partial payment in advance, otherwise adjust the terms, or cease to supply Buyer.
6. FREIGHT. Unless agreed by Seller in writing, all shipments shall be F.O.B. origin, freight collect. Risk of loss or damage to Goods shall pass to Buyer upon tender to Buyer, its designated agent, or to a carrier for delivery to Buyer, whichever occurs first.
7. DELIVERY. Shipping and delivery dates are estimates and are based upon prompt receipt of all necessary information from Buyer. Delays in securing Buyer’s approval of any matter shall, at Seller’s discretion, extend the date of delivery. Seller shall not be liable for any claim, Loss, expense, or damage of any kind for delays or damage in transit.
8. INSPECTION. Buyer shall inspect the Goods upon arrival, and Buyer shall immediately notify Seller in writing of any claims that the Goods do not conform to the purchase order specifications. Failure to give such written notice within thirty (30) days of delivery will constitute satisfactory shipment by Seller and irrevocable acceptance by Buyer of all Goods.
9. CHANGES. Changes in specifications or designs relating to any products, changes in delivery schedules or reschedules or cancellations of orders are not permitted unless Seller has accepted same in writing, and such changes may be subject to additional charges.
10. RETURNS. Goods may not be returned without prior written authorization by Seller and compliance with Seller’s return policies and procedures. Requests to return Goods must be made within 60 days after receipt of Goods by Buyer to Seller. Goods that are returned must be unused, in like-new condition, in their original packaging with any and all accessories stated on the original order invoice, and able to be returned to stock. Any returned Goods that are damaged, used, or without its original packaging will not be credited.
11. STORAGE. In the absence of agreed shipping dates, Seller may invoice Buyer and ship the Goods once they are ready for shipment. If, because of Buyer’s inability to take delivery, the Goods are not shipped, stopped in transit or returned, Seller may store them for Buyer at Buyer’s expense and title and risk of loss shall pass to Buyer when the Goods are placed in storage and such date shall constitute the date of shipment for purposes of payment periods.
12. INTELLECTUAL PROPERTY. Except as expressly agreed to in writing signed by the parties, all intellectual property rights, including, without limitation, copyrights, patents, and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, confidential information, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “IP Rights”) in and to all Goods, documents, work product and other materials that are delivered to Buyer under these Terms or prepared by or on behalf of the Seller in the course of providing Goods or performing services shall be and remain owned by Seller.
13. DISCLAIMER OF WARRANTIES. SELLER MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, QUIET ENJOYMENT, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. Seller will pass on to Buyer the warranty, if any, it receives from the manufacturer of such Goods or part, but only to the extent allowed by such manufacturer. Seller’s aggregate liability to Buyer or anyone claiming through or on behalf of Buyer, with respect to any claim or Loss arising out of or relating to any Goods or alleged to have resulted from any act or omission of Seller, whether negligent or otherwise, and whether in tort, contract, or otherwise, shall be limited to an amount not to exceed the price received by Seller for the Goods with respect to which such liability is claimed. Any contract created between Seller and Buyer is subject to the specific conditions that (a) Seller is not obligated to provide insurance or indemnify Buyer (other than as provided in Section 14), and (b) there are no flow-downs from any person or entity including the federal government that become part of the contract.
UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER PERSON OR ENTITY FOR INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OR ANY OTHER LOSSES OR EXPENSES, INCLUDING WITHOUT LIMITATION, FOR INJURIES TO PERSONS OR DAMAGE TO PROPERTY, LOSS OF PROFIT, REVENUES OR USE, DIMINUTION IN VALUE, COST OF SUBSTITUTE PRODUCTS, DOWNTIME COSTS, OR CLAIMS OF BUYER’S CUSTOMERS EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14. INDEMNIFICATION. Buyer shall defend, indemnify and hold Seller, its affiliates and their respective officers, directors, members, managers, representatives, agents and employees harmless from and against all claims, suits, demands, losses, liabilities, damages (including injury and death) and expenses (including reasonable attorneys’ fees) (collectively, “Losses”), arising out of or relating to: (a) Buyer’s or its agents provided specifications, design, structure, operation, material or method of making Goods including (“Buyer’s Specifications”), without limitation, any resulting violation of Seller’s IP Rights; (b) Buyer’s use, misuse or disposal of Goods or materials; (c) Buyer’s non-compliance with any Law; (d) breach of these Terms by Buyer; and (e) Goods subjected to: (i) improper installation or storage; (ii) accident, damage, abuse or misuse; (iii) abnormal operating conditions or applications; (iv) operating conditions or applications above the rated capacity of the Goods; (v) repairs or modifications made to all or part of the Goods without the prior written consent of Seller; or (vi) a use or application other than or varying in any degree from the specifications and Seller’s instructions.
15. EQUIPMENT; TOOLING. Any equipment, machinery or parts therefor (collectively, “Equipment”), and any tools, jigs, dies, patterns, etc. (collectively, “Tooling”), which Seller owns, makes, acquires, or uses for the production of Goods shall be and remain Seller’s property, notwithstanding any charge by Seller therefor. In no event shall Buyer have any interest in any Equipment or Tooling which is utilized in the production of Goods, or which has been converted or adapted by Seller for such use, notwithstanding any charge for any such utilization, conversion or adaption.
16. CONFIDENTIALITY. All non-public, confidential or proprietary information of Seller, including but not limited to samples, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed in any manner and form by Seller to Buyer, whether or not marked, designated or otherwise identified as “confidential” is confidential, solely for the use of performing the transactions contemplated by these Terms and may not be disclosed unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this section. This section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
17. FORCE MAJEURE. Seller shall not be liable for any delay in or failure to perform, nor be deemed to have defaulted or breached these Terms, due to any cause, matter or contingency beyond its reasonable control, including, without limitation, natural disasters, governmental actions, war, hostilities, terrorist threats or acts, lock-outs, labor disputes, or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, or any act or omission of Buyer or its affiliates, agents, contractors, consultants or employees.
18. TERMINATION. Seller shall have the right to cease work or terminate these Terms or any purchase order, in whole or in part, at any time, without liability, if: (i) Buyer breaches or defaults under these Terms or any other agreement it has with Seller; (ii) a petition under any applicable law relating to bankruptcy, insolvency, or reorganization is filed by or against Buyer; (iii) Buyer executes an assignment for benefit or creditors; (iv) a receiver is appointed for Buyer or any substantial part of its assets; or (v) Seller shall have any reasonable ground for insecurity with respect to Buyer’s ability to perform and Buyer is unable to provide Seller with adequate assurance after written request from Seller. In all cases, Seller’s rights are cumulative, are not exclusive and in addition to all other rights and remedies it may have at law or in equity. No termination shall affect any accrued rights or obligations as of the effective date of such termination.
19. WAIVER. All waivers by Seller shall be in writing. Failure of Seller at any time to require Buyer’s performance of any obligation hereunder shall not affect Seller’s right to require performance of that obligation. No delay or omission in the exercise of any right, power, or remedy hereunder shall impair such right, power, or remedy or be considered to be a waiver of any default or acquiescence therein.
20. LAW; JURISDICTION. These Terms shall be construed in accordance with the laws of the State of Connecticut without regard to any rules on conflicts of laws. Any legal suit, action or proceeding arising out of or relating to Seller’s sale of Goods to Buyer shall be instituted in the federal courts of the United States of America or the courts of the State of Connecticut, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
21. MISCELLANEOUS. Buyer shall not assign any of its rights or obligations hereunder without Seller’s prior written consent. Buyer shall comply with all applicable Laws. There are no third-party beneficiaries. The relationship between the parties is that of independent contractors. Provisions which by their nature should survive will remain in force after any termination or expiration. The section headings are included solely for the convenience of the parties.