The sale of products and services (“Products”) by CableMaster, LLC. (CM) are subject to these terms and conditions (“Agreement”) regardless of other or additional terms or conditions that conflict with or contradict this Agreement in any purchase order, document, or other communication (“Order”). Preprinted terms and conditions on any document of CM’s customer (“Customer”) (for example: Orders or confirmations) and/or CM’s failure to object to conflicting or additional terms will not change or add to the terms of this Agreement.
These Standard Terms and Conditions, together with the terms of any quotation from CM, constitute the entirety of terms and conditions concerning any such orders or purchases between CM and you (“Buyer”). CM’s willingness to conduct any such transaction is expressly conditioned on the purchaser accepting CM’s Standard Terms and Conditions. By placing an order or accepting shipment of goods, the purchaser confirms that they have reviewed CM’s Standard Terms and Conditions, and acknowledges and agrees (1) that CM’s entry into this transaction is conditioned on the purchaser’s acceptance of the CM Standard Terms and Conditions, (2) that CM’s Standard Terms and Conditions will control in the event they conflict with any terms or conditions contained in any purchase order, request for quotation, or other communication from the purchaser, and (3) that any failure by CM to object to conflicting or additional terms will not change or add to CM’s Standard Terms and Conditions.
Price and availability of products offered by CM are subject to change without prior notice. All listed prices are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies and similar assessments and you agree to bear and be responsible for the payment of all such charges, excluding taxes based upon CM’s net income. All amounts due will be grossed-up for any withholding taxes imposed by any foreign government.
Terms of Payment
Payment terms are net 30 days from the date of CM’s invoice or as otherwise specified by CM. All payments will be made (a) in United States dollars; and (b) in full without set-off or counterclaim, and without deduction for exchange, collection, taxes or other fees that may be imposed by any government or any other charges. If you fail to timely make payment hereunder, CM may defer shipments or otherwise suspend the sale of any products until all overdue payments are received. All amounts due hereunder will accrue interest from the first day following the due date until paid in full at a rate equal to the lesser of the highest rate legally permitted in the jurisdiction in which you are located or 1.5% per month. Payment of interest will not foreclose any other right that CM may have as a consequence of late payment. If CM is required to take legal action to collect unpaid amounts, and CM is successful in such action, you will reimburse all costs and reasonable attorneys’ fees incurred by CM in such collection.
No order will be binding upon CM until it is accepted in writing (which may include electronic transmissions) by CM. Any change to a purchase order must be in the form of a written or electronic communication acceptable to CM. Any purchase documents provided by you containing any standard printed terms of purchase/sale will be for administrative purposes only, and such standard printed terms of purchase/sale will be of no force or effect. All Orders including, but not limited to, Electronic Purchase Orders, for products identified by CM as non-standard or “NCNR”, are non-cancelable, non-returnable. CM may identify products as non-standard or “NCNR” by various means including, but not limited to, quotes, scope of services, products lists, attachments or exhibits.
No accepted orders may be changed, cancelled, or rescheduled without CM’s written consent (which may include electronic transmissions), which may be given or withheld by CM in its sole discretion. Upon cancellation of any purchase order, you must pay CM for any products or components thereof ordered pursuant to such purchase order which CM is not able to cancel or return (in each case without payment or liability) to the applicable product manufacturer. Notwithstanding anything to the contrary herein, NCNR Products are non-cancelable and non-returnable as discussed in the “NCNR Products” section below.
CM will use commercially reasonable efforts to fill each purchase order submitted by you and accepted by CM; provided that the purchase order has been properly submitted and such products are available to CM. Notwithstanding any other provision of the Agreement, the obligation of CM to sell or provide any product to you is subject to the availability of such product. CM will not be liable for damages caused by failure to ship or delay in shipment resulting from conditions beyond the control of CM. CM reserves the right to allocate sales of products among its Customers in its sole discretion. CM reserves the right to change the specifications of any product (including all statements and data appearing in CM’s website, data sheets and advertisements) without notice. If specifications are changed, CM assumes no obligation to provide the change on products previously purchased or to continue to supply discontinued products or versions. CM may substitute products manufactured to such modified specifications for those specified herein provided such products substantially conform to the products described in the sale contract. CM reserves the right to discontinue sale of products at any time.
CM is not liable, either wholly or in part, for non-performance or a delay in performance due to force majeure or contingencies or causes beyond the reasonable control of CM (each, a Force Majeure Event) including, but not limited to, acts of God, wars, acts of terrorism, riots, civil disturbances, strikes, labor disputes, fires, storms, floods, earthquakes, natural disasters, epidemics, inability to obtain or use raw or component materials or parts, fuel, labor, equipment, facilities, or transportation, or technical or yield failure where CM has exercised ordinary care in the prevention thereof, and acts of any government or agency thereof. Production and deliveries may be allocated in a reasonable manner in the event of a shortage of goods. Buyer’s order will be deemed suspended for so long as any such Force Majeure Event prevents or delays CM’s performance. In the event of any such suspension, CM shall have the right, at its option, upon notice to Buyer, (a) to terminate its obligation to sell any or all of the Products ordered hereunder, or (b) to resume performance as soon as practicable after the suspension, and reschedule delivery of the Products ordered hereunder to one or more deferred dates to be mutually agreed upon by Buyer and CM
With each shipment, CM will include an itemized packing list referencing the part number for each ordered product. CM may ship orders in installments or from multiple locations if it determines that it is commercially reasonable to do so.
Products will be delivered by CM to a carrier, FOB CM’s shipping facility. Title and risk of shipping loss or damage to products will pass to you when the products are delivered to such carrier. The cost of any handling, shipping and insurance arranged by CM will be billed as an add-on to your invoice and paid by you, unless otherwise noted. You are responsible for any and all costs of customs formalities as well as all duties, taxes and other official charges payable upon importing or exporting the products and you will be responsible for clearing the products through customs upon arrival, unless CM notifies you otherwise. CM may deliver goods in installments. All delivery dates are estimates. CM shall make reasonable efforts to effect shipment on or before the scheduled shipping date(s) reflected on CM’s acknowledgment or invoice, but shipping deadlines are not guaranteed. If no shipping date is specified, shipment will be made on date(s) selected by CM. CM shall not be liable for any loss or expense (consequential or otherwise) incurred by Buyer if CM fails to meet the estimated delivery dates. Delivery may be made in advance of any scheduled delivery date upon reasonable prior notice to Buyer. All items will be packed for shipment and shipped in accordance with CM’s standard practices. CM reserves the right to allocate production and deliveries among its various Customers at CM’s sole discretion under any circumstances. You must submit to CM all claims for shortages in shipment or notice of other irregularities within 10 days after receipt of such shipment by you. Any failure by Buyer so to inspect and report shall constitute a waiver by Buyer of any claim or right of Buyer against CM arising with respect to any such error, shortage, defect or nonconformity.
If you fail to pay when due any amount owed to CM for products purchased from CM, CM shall have, in addition to any other rights of CM, the right (without liability of CM) to repossess such products or to require you to effect (at your expense) return delivery of such products to CM. In addition, until you have paid to CM the entire amount due to CM for such products, CM shall retain a security interest in such products in the amount of the full purchase price plus all other amounts due hereunder and all costs of collection incurred by CM (including but not limited to court costs and reasonable attorneys’ fees), and CM shall retain all rights and remedies of a secured party under the Uniform Commercial Code as in effect at the time of delivery of such products. A copy of CM’s invoice may be filed with the appropriate authorities at any time as a financing statement or chattel mortgage in order to perfect CM’s security interest. Upon the request of CM, you will execute any financing statements and other documents or instruments necessary or appropriate in order for CM to perfect its security interest.
CM may designate a product as an “NCNR Product”. Notwithstanding any provision of this Agreement to the contrary, orders for special, custom, value-added and other non-standard products, including products to be assembled in kit form, products of manufacturers which do not appear on CM’s line card, works-in-process, and products otherwise identified by CM as “NCNR” or “Non-Cancelable and Non-Returnable” (or words of similar import) are “NCNR Products”.
You hereby acknowledge that NCNR Products are both non-cancelable and non-returnable and further acknowledge and agree to the following:
CM has no obligation to seek more favorable cancellation or return privileges with the manufacturer for the NCNR Products. However, if CM is able to negotiate more favorable cancellation or return privileges with the manufacturer for the NCNR Products, then, at its sole discretion, CM may extend such privileges to you. Also, CM may waive the above obligations under this Agreement concerning NCNR Products, in CM’s sole discretion, if CM can sell at a comparable price the full quantity of the NCNR Products to third parties at the time you request such waiver. CM may charge a restocking fee of up to 15% on any such NCNR Products.
Supplier warrants that the Products will be free from defects in material and workmanship and conform in all material respects to their applicable specifications for a period of one (1) year from the date of delivery (“Warranty Period”), when operated under normal conditions and in accordance with their applicable specifications. For any breach of this warranty, Supplier will, at its option and expense and as its sole obligation, and as Purchaser’s exclusive remedy, repair or replace any defective Product returned to Supplier during the Warranty Period, provided that an examination by Supplier discloses to Purchaser’s reasonable satisfaction that a defect is covered by this warranty. This warranty does not apply to any Products that have been (i) subject to misuse, neglect, or abuse, (ii) improperly installed or maintained, or (iii) repaired or altered by anyone other than Supplier. The warranty period for Products repaired or replaced under this warranty shall be limited to the components repaired or replaced and shall run for a period of one hundred and eighty (180) days from the date of delivery or the balance of the original one (1) year Warranty Period (excluding the time the Products were out of service and in Supplier’s plant), whichever is longer. EXCEPT AS STATED IN THIS SECTION, SUPPLIER MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
Prior to returning any product to CM, you must obtain a return materials authorization number (“RMA”) from CM’s inside sales department. The RMA must appear on all packages returned to CM. CM will issue an RMA within 10 business days after receiving your request. If CM requests or authorizes return of defective or non-conforming products, you are responsible for paying shipping and insurance costs from its location to CM; provided that if such return is the result of CM’s negligence in the filling of such order, CM will be responsible for paying such shipping and insurance costs. No returned packages will be accepted without a valid RMA provided by CM. As stated above, NCNR Products are non-returnable for any purpose.
LIMITATION ON CM’S LIABILITY
IN NO EVENT SHALL CM HAVE ANY LIABILITY TO BUYER, ARISING OUT OF OR IN CONNECTION WITH THE SALE OR USE OF THE PRODUCTS SOLD HEREUNDER OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, NEGLIGENCE, BREACH OF WARRANTY OR OTHERWISE), IN AN AMOUNT IN EXCESS OF THE AMOUNT(S) ACTUALLY RECEIVED BY CM FROM BUYER AS PURCHASE PRICE FOR THE PRODUCTS WHICH GIVE RISE TO CM’S LIABILITY. CM SHALL HAVE NO OTHER LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND, IN ANY WAY OR TO ANY EXTENT FOR ANY LOSSES, EXPENSES, COSTS, DAMAGES OR LIABILITIES FOR ANY REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE PRODUCTS (OR THE PERFORMANCE THEREOF), OR ARISING IN ANY WAY OR IN CONNECTION WITH THE PURCHASE BY OR USE OR SALE OF THE PRODUCTS BY BUYER, EVEN IF CM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CM HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING IN ANY WAY IN CONNECTION WITH THE PRODUCTS OR THEIR SALE OR USE, INCLUDING BUT NOT LIMITED TO DAMAGE TO PROPERTY, INJURY TO PERSONS, LOSS OF USE OF THE PRODUCTS OR ANY ITEM WITH WHICH SUCH PRODUCTS ARE USED, LOST PROFITS, OR DELAYS OR INCONVENIENCE.
Buyer agrees to defend indemnify, defend, and hold harmless CM, its shareholders, directors, officers, employees, agents, affiliates, and principals from and against any loss, damages, claims, liabilities, penalties, fines, costs, and expenses, including reasonable attorney’s fees, resulting from or relating to Buyer’s misuse of the Products, abuse of the Products, or Buyer’s negligence in the use of the Products, including but not limited to Buyer’s violation of any applicable law, regulation, or standard of applicable use for the Products.
Termination and Cancellation
Without prejudice to any rights or remedies CM may have under these Terms or at law, CM may, by written notice to Buyer, terminate these Terms, or any part thereof, without any liability whatsoever, if: (i) Buyer fails to make payment for any Products to CM when due; (ii) Buyer fails to accept conforming Products supplied hereunder; (iii) a voluntary or involuntary petition in bankruptcy or winding up is filed against Buyer, any proceedings in insolvency or bankruptcy (including reorganization) are instituted against Buyer, a trustee or receiver is appointed over Buyer, or any assignment is made for the benefit of creditors of Buyer; or (iv) Buyer violates or breaches any of the provisions of these Terms. Upon occurrence of any of the events referred to above under (i) through (iv), all payments to be made by Buyer under the Agreement shall become immediately due and payable.
In the event of any default by Buyer, CM may decline to make further shipments. If CM elects to continue to make shipments, CM’s action shall not constitute a waiver of any default by Buyer or in any way affect CM’s legal remedies for any such default.
Notices. All communications under these Terms shall be in writing and shall be deemed to have been duly given (i) upon personal delivery, (ii) upon deposit in the mail if mailed by certified mail, return receipt requested, postage prepaid, or (iii) upon deposit with a recognized courier with next-day delivery instructions
Severability. In the event that any provision of these Terms shall, in whole or in part, be determined to be invalid, unenforceable or void for any reason, such determination shall affect only the portion of such provision determined to be invalid, unenforceable or void, and shall not affect in any way the remainder of such provision or any other provision of these Terms. The parties agree that they will negotiate in good faith or will permit a court or arbitrator to replace any provision of these Terms so held invalid, unenforceable or illegal with a valid provision that is as similar as possible in substance to the invalid, unenforceable or illegal provision.
Waiver. The waiver by CM of a breach or a default of any provision of these Terms by you shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of CM to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by CM.
Governing Law; Jurisdiction & Venue; Attorneys’ Fees. These Terms and the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the State of Delaware without taking into account its principles on conflicts of law.
Relationship of the Parties. Nothing contained in these Terms shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose. Neither party shall have the authority to make any statements, representations or commitments or to take any actions which shall be binding on the other party, except as may be explicitly authorized in writing by such other party.
Entire Agreement; Amendment; Assignments. These Terms, together with information contained in CM’s written product order acknowledgment and written invoice, (a) constitute the entire agreement of the parties hereto with respect to the subject matter hereof and supersede all prior understandings and agreements, whether written or oral, as to such subject matter; (b) may be amended or modified only by a writing executed by an authorized officer of the party against whom enforcement is sought; (c) may not be assigned by you without the written consent of CM; and (d) shall be binding upon and shall inure to the benefit of the respective successors and permitted assigns of the parties hereto.