I. Applicable Terms:
All quotations, contracts and sales by Global Cable & Electronics, LLC, its divisions, subsidiaries and affiliates (referred to herein as “Seller”) are subject to the terms and conditions on this document. The acceptance by the purchaser (“Purchaser”) or any quotation by, contract with or sale of products from Seller shall be deemed to also constitute an acceptance of all of the terms in the “Global Cable & Electronics, EEC Standard Terms and Conditions dated January 30, 2009”, unless specifically stated otherwise in writing and signed by an approved signatory of the Seller.
Terms of payment are net 30 days from the invoice date. Payment is due at Global Cable & Electronics, LLC, 825 Progress Center Avenue, Suite A, Lawrenceville, GA 30043. Purchaser agrees that if any invoice is not paid when due it should bear interest on the Seller’s prevailing interest rate as may be established from time to time, from the date of the invoice (if not otherwise specifically stated in the quotations, contracts or sales documents of Seller), and that the interest rate applies both before and after easy of judgment
3. Delivery and Shipment:
All products will be Shipped F.O.B. at Seller’s facilities and all risk of loss or damage to such products will pass to Purchaser when the products are delivered by Seller to the carrier, unless specifically stated otherwise in writing and signed by Seller. Factory shipment or delivery dates are the best estimate of Seller only and not a guaranty of shipment or delivery on those dates.
4. Defective, Non-conforming and Returned Products:
Products will be deemed accepted by Purchaser unless written notice of rejection is furnished by Purchaser to Seller not more than 10 days after delivery of the products to Purchaser specifying the nature of the shortages, damages, defects or claims that products are non-conforming. All shortages, damages, defects or claims that products are non-conforming must be reported in writing by purchaser to Seller within 10 days of delivery to purchaser (or within 15 days that any such claim first becomes known to Purchaser if Purchaser could not have known of such claim with the exercise of due diligence upon delivery) or Seller shall have no further obligation regarding same and Purchaser shall be barred from any remedy against Seller. No return products will be accepted by Seller without a Return Material Authorization number (RMA#). RMA may be subject to re-stocking fee.
5. Variation of Quantities and Lengths:
Seller reserves the right on distribution products to ship and bill products with up to a 10% variation, over or under the quantity or length specified.
6. Exclusions and Limitations of Liabilities and Remedies:
Seller warrants that any products supplied by Seller to Purchaser shall be free from defects in material and workmanship at the time of delivery. Seller’s sole liability and Purchaser’s exclusive remedy shall be for breach of such express warranty and shall be expressly limited, at Seller’s option, to (1) the repair of defective products or services or the replacement thereof at the original F.O.B. point of origin or (2) the repayment of the purchase price. Except as set forth expressly herein, Seller shall in no event be liable for any incidental, special or consequential damages, lost profits, or other losses or expenses for breach of warranty (express or implied), product liability, strict liability, negligence or any other liability in tort, contract or under statute, or at any delay, performance, failure of performance or otherwise. Under no circumstances shall Seller be liable to Purchaser or any third party for any consequent or incidental damages related to personal injury, wrongful death or property damage resulting from the use of seller’s products, and therefore, Purchaser assumes the risk for all personal harm and injury which can occur from the use of such products, even if caused in whole or in part by Seller. Thus, should personal injury, wrongful death or property damage occur related to the use of this product, Purchaser understands it is not entitled to any injury-related damages. Purchaser agrees that if Purchaser or any third party institutes legal proceedings against Seller asserting claims of strict liability, tort, negligence, breach of contract or warrant, or any other claim for damages against Seller in any way related to Seller’s products as toy personal injury, wrongful death, property or other damage, Purchaser shall hold Seller harmless and indemnify Seller for all damages, costs and reasonable attorney fee which Seller incurs in connection with defending such claim, through appeal and post-judgment proceedings. Seller shall have the right to the attorney of his choice in any such proceedings, and Purchaser shall be responsible for payment of the reasonable attorney’s fees and cost as they come due while such claim is being litigated. THE FOREGOING LIMITATION OF DAMAGES AND WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. PURCHASER ACKNOWLEDGES THAT ALL CLAIMS FOR DAMAGES AND WARRANTIES IMPLIED BY THE COMMON LAW OR UNIFORM COMMERCIAL CODE ARE EXPRESSLY EXCLUDED FROM THIS SALE.
7. Force Majeure:
In no event shall Seller be liable for any incidental, special or consequential damages, lost profits, or other losses or expenses, occasioned by acts of God or of public enemy, natural disasters, severe weather, acts or omissions of other parties, acts or omissions of civil or liability authority, government priorities, changes in law, material shortage, fire, Labor strike or strike, floods, epidemics, quarantine restrictions, riots, war, insurrection, acts of terrorism, delays in transportation or inability to obtain labor or materials through Sellers regular sources or an y other fault or cause beyond Seller’s control whether specifically listed in this paragraph or otherwise
8. Governing Law and Forum and Attorney’s Fees:
All disputes between the parties and all disputes arising out of, or related to this contract, whether such disputes are based on contract, tort, statute or otherwise, (a) shall be governed I solely by the internal law of the State of Georgia without resort to its conflict of law principles, (b) shall be submitted for resolution exclusively to the courts located in Gwinnett County, Georgia, all objections to personal jurisdiction and venue in such courts being waived, and c) in connection with any such disputes, Seller shall be entitled to an award of reasonable attorney's fees and costs in all proceedings in trial and appellate courts and all reasonable attorney’s fees and costs of collection by Seller prior to commencement of litigation by any of the parties.
9. Purchaser’s Cancellation or Modification of Orders
Orders shall not be subject to cancellation or modification by Purchaser in whole or in part (a) without Seller’s written consent and (b) payment of a reasonable cancellation charge for applicable costs of purchased materials and engineering costs incurred or for which Seller is obligated prior to cancellation or modification. However, if special or custom products are ordered from Seller, Purchaser may not cancel or modify the order under any circumstances
10. Entire Agreement:
Except as expressly set forth herein, there are no other agreements between Purchaser an Seller regarding the products which are the subject hereof, and all other written proposals, drafts, quotes and oral agreements and understandings are superseded, memorialized and merged herein, which is the entire agreement of Purchaser and Seller regarding those products. Ni subsequent modification of the terms and conditions set forth herein shall be binding unless set forth in writing signed by Seller.