1. Definitions – “United” means United Electric Supply Company, Inc. and any name under which it may trade. “Purchaser” means the person identified as such in the Agreement of which these Terms and Conditions form a part. This “Agreement” consists of one or more documents that identify the pricing and scope of Services, together with these Terms and Conditions “Services” shall mean those services described in the Proposal.
2. Terms Governing Services – Purchaser agrees to be bound by all of the terms and conditions set forth in this Agreement. Any terms and conditions set forth in any quotation, proposal or other document or any oral communication or written agreement which purports to be an addition to this Agreement which is inconsistent herewith shall not be binding upon United unless made in writing and accepted by the signature of an authorized officer or manager of United. Any term or condition of sale or service contained in any document prepared by or received from Purchaser by United relating to the Services provided under this Agreement which is inconsistent with any term or condition of this Agreement is hereby rejected by United and shall have no effect.
3. Dates – Services commencement or completion dates, if any, furnished by United are approximate and shall not be deemed to be fixed or guaranteed.
4. Prices Unless otherwise specified by United, United’s price for the Services shall remain in effect provided an unconditional, complete authorization for the provision of Services pursuant to United’s standard order processing procedures is received and accepted by United within thirty (30) days.
5. Orders – All cancellations of orders for Services must be requested by Purchaser and approved by United in writing. Purchaser agrees to pay for any and all costs incurred by United in connection with any cancellation request.
6. Credit – Notwithstanding any prior extension of credit by United to Purchaser, if at any time United determines, in its sole judgment, that Purchaser’s financial condition does not justify United’s extension to it of credit in connection with any sale hereunder, United may, at its option, require Purchaser to make full payment in cash prior to provision, or continuation, of any Services.
7. Payment Terms – Unless otherwise stated in the Agreement or in United’s invoice, payment terms in connection with credit approved by United are net 30 days from the date of invoice, and United does not extend cash discount terms. A late payment charge of 2.0% per month on past due amounts or, if less, the maximum permitted by law, will be added to all outstanding balances after 30 days from date of invoice.
8. Default – In the event Purchaser defaults in payment, United may, in its sole discretion, suspend provision, or continuation, of Services at such time. Purchaser shall be liable for all costs incurred by United in connection with such default including, but not limited to, legal and collection agency fees.
9. Limitation of Liability – With respect to any claim against United arising in any way from Services hereunder other than warranty claims, United’s liability shall not exceed the purchase price of such Services. UNITED SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, CONTINGENT OR INCIDENTAL DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, BACK CHARGES. United shall not be liable for damages of any kind resulting from any delay or failure to deliver or perform due to strikes, lockouts or other labor difficulties, failure or delay of sources of supply, transportation difficulties, accidents, fires, war, riot, terrorism, acts of God, compliance with governmental requests, laws, regulations, orders or actions or any other cause of like or unlike nature beyond United’s reasonable control. Contracts which include liquidated damage clauses for failure to meet shipping of job completion promises are not acceptable or binding on United.
10. Specification Changes – All manufacturers’ specifications, whether contained in United’s catalogue or promotional literature or in any other document, are subject to change without notice to Purchaser and without liability to United.
11. Confirmations – Written confirmation by Purchaser of telephone or other oral orders must be clearly marked “confirming” to avoid duplicate Services. If this is not done and duplicate Services provided, Purchaser’s written confirmation shall be deemed to be a separate order subject to terms and conditions of this Agreement.
12. Claims – Any claim against United other than warranty claims must be made in writing within ten (10) days after completion of the Services, and must state the factual basis for such claim. Failure to make any such claim within ten (10) days of completion of the Services, shall constitute acceptance of the Services and waiver of any and all claims with respect to such Services. Purchaser agrees that warranty claims shall be barred unless asserted by Purchaser by the commencement of an action within 12 months after the completion of the Services. All provisions of this Agreement relating to warranties, remedies and claims shall survive any termination of this Agreement, however arising.
13. Warranties – UNITED MAKES NO WARRANTY, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR OTHERWISE, CONCERNING SERVICES SOLD HEREUNDER, EXCEPT AS EXPRESSLY STATED IN THIS SECTION 16. If Purchaser discovers any software configuration warranty defects and notifies United thereof in writing within twelve (12) months of the completion of the installation,, United, at its option, shall either correct any errors that are found by United in the software configuration or Services, repair or replace F.O.B. point of manufacture that portion of the software configuration found by United to be defective, or refund the purchase price of the defective portion of the configuration or Services. All replacements or repairs, or additional costs necessitated by improper specification, insufficient testing, inadequate maintenance, normal wear and usage, unsuitable power sources or environmental conditions, accident, misuse, improper installation, modification, repair, storage or handling, or any other cause not the fault of United are not covered by this limited warranty, and shall be at Purchaser’s expense. United shall not be obligated to pay any costs or charges incurred by Purchaser or any other person except as may be agreed upon in writing in advance by United. All costs of dismantling, reinstallation and freight and the time and expenses of United’s personnel and representatives for site travel and diagnosis under this warranty clause shall be borne by Purchaser unless accepted in writing by United. Configurations modified or Services rendered by United during the warranty period shall be in warranty for the remainder of the original warranty period or ninety (90) days, whichever is longer. This limited warranty is the only warranty made by United and can be amended only in a writing signed by United.
14. Licensing – Notwithstanding any other provision herein to the contrary, United or applicable third party owner shall retain all rights of ownership and title in its respective software and software configuration, including all copyrights relating to such software and software configuration. Except as otherwise provided herein, Purchaser is hereby granted a nonexclusive, license to use software configuration, incorporated into the equipment by United only in conjunction with such Services and only at Purchaser’s registered location(s). Purchaser may negotiate with United separate licenses to use such software and software configurations at other sites. Purchaser’s use of certain software configuration (as specified by United) and all other software shall be governed exclusively by United’s and/or third party owner’s applicable license terms. The foregoing licensing does not supersede or replace end-user licensing agreements and support contracts required by manufacturers, including, but not limited to, Schneider Electric and Iconics, to be entered into by Purchaser.
15. Purchaser Supplied Data – To the extent that United has relied upon any specifications, information, representation of operating conditions or other data or information supplied by Purchaser to United in the provision of the Services and the preparation of United’s quotation, and in the event that actual operating conditions or other conditions differ from those represented by Purchaser and relied upon by United, any warranties or other provisions contained herein which are affected by such conditions shall be null and void, unless otherwise mutually agreed upon in writing
16. Nuclear Applications – UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THE AGREEMENT, SERVICES HEREUNDER ARE NOT INTENDED FOR USE IN ANY NUCLEAR OR NUCLEAR-RELATED APPLICATIONS. Purchaser (i) accepts Services in accordance with the restriction set forth in the immediately preceding sentence, (ii) agrees to communicate such restriction in writing to any and all subsequent purchasers or users and (iii) agrees to defend, indemnify and hold harmless United from any and all claims, losses, liabilities, suits, judgments and damages, including incidental and consequential damages, arising from use of Services in any nuclear or nuclear-related applications, whether the cause of action be based in tort, contract or otherwise, including allegations that the United’s liability is based on negligence or strict liability.
17. Out of Scope Rates – United is responsible for Services performed outside of the scope of Services in this Agreement only if documented by United. Any additional work required outside the scope of the Services described in the Agreement or necessitated by delays caused by Purchaser’s staff or vendors, will be charged at the time and material rates defined therein, or according to the rate schedule published by United at the time of execution of this Agreement.
18. Non Solicitation – The parties agree not to solicit for employment any employee of the other with whom the parties have had contact as a result of this Agreement while the candidate is employed by the other party and for six (6) months following termination of such employment, unless specifically agreed to in writing by the parties. Either party shall not be prevented from hiring any employee who responds to a general hiring program conducted in the ordinary course of business and not specifically directed to such employee.
19. Unsafe Workplace – In the event United determines that Purchaser’s workplace contains any hazardous or unsafe conditions, United may, without limiting any other rights and remedies of United, immediately cease all Services until Purchaser has removed and disposed of such conditions in accordance with applicable laws.
20. Moving Hardware – Any request for United to relocate Purchaser’s hardware as a part of the Services will require Purchaser to indemnify United for any damage caused to the hardware or software as a result of this move.
21. Disposal – United shall have no obligation to dispose of any waste material from its Services and disclaims all liability for any such disposal.
22. Additional Requirements – Statement of work and pricing may require modification if the initial implementation meeting uncovers additional requirements.
23. Rescheduling – United reserves the right to reschedule the Services based upon events out of its control.
24. Hardware and Software Registration – Purchaser is responsible for registering hardware and/or software as required by the manufacturer or distributor. If failure to effectively complete registration prior to date of installation results in delay of installation, Purchaser agrees to accept billing for such delay over and above charges for United’s statement of work appearing in this Agreement.
25. Sales Representative – No United sales representative or other employee who is not an officer or manager of United shall have authority to change or waive any of the terms and conditions of this Agreement.
26. Waiver of Jury Trial – In the event of litigation relating to this Agreement or Services hereunder, Purchaser hereby agrees, to the extent permitted by law, to waive any right that it may have to a jury trial on any and all issues that may be raised in such litigation.
27. No Waiver – Nothing contained herein shall be construed to limit or waive any right or remedy of United under applicable federal, state, or local laws.
28. Severability – The invalidity of any provision of this Agreement shall not invalidate or render unenforceable any other provision of this Agreement.
29. Entire Agreement and Modification – This Agreement is intended by the parties hereto as a final expression of their agreement with respect to the subject matter hereof, and is intended as a complete and exclusive statement of the terms and conditions of that agreement (any prior agreement being superseded by this Agreement and such prior agreements are hereafter null and void). This Agreement may not be modified, rescinded or terminated orally, and no modification, rescission, termination or attempted waiver of any of the terms, provisions or conditions hereof (including this paragraph) shall be valid unless in writing, supported by consideration, and signed by the party against whom the same is sought to be enforced.
30. Governing Law – All orders are subject to acceptance by United in Delaware and this Agreement shall in all respects be governed by and construed under the laws of the State of Delaware. PURCHASER AGREES THAT ANY ACTION OR CLAIM ARISING OUT OF, OR ANY DISPUTE IN CONNECTION WITH, THIS AGREEMENT, ANY RIGHTS, REMEDIES, OBLIGATIONS, OR DUTIES HEREUNDER, OR THE PERFORMANCE OR ENFORCEMENT HEREOF OR THEREOF, SHALL BE BROUGHT IN THE COURTS OF THE STATE OF DELAWARE OR ANY FEDERAL COURT SITTING THEREIN AND IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURT AND TO BE SUBJECT TO SERVICE OF PROCESS IN THE STATE OF DELAWARE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PURCHASER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
31. Assignment – Purchaser shall not assign or otherwise transfer any of its rights, duties, obligations or undertakings or any portion thereof to any third party without the prior written consent of United, which consent may be granted or withheld in United’s sole and absolute discretion.
32. Confidentiality – Purchaser acknowledges that any confidential United information it obtains as a result of United’s performance of this Agreement will be confidential and a trade secret. The parties incorporate by reference into this Agreement any separate confidentiality agreement entered into by them.