1. ACCEPTANCE. These Terms and Conditions (these “T&Cs”) shall apply to all Mid-State Supply Company, LLC, d/b/a ElectProtect (“Seller”) quotes and sales. By placing an order with Seller and accepting products sold by Seller, Purchaser is deemed to have accepted these T&Cs. Seller’s acceptance of Purchaser’s order and shipment of products is expressly conditioned upon such acceptance. These T&Cs shall be applicable whether or not they are attached to or enclosed with the products to be sold hereunder.
2. PRICES. Prices do not include shipping and handling, taxes, or duties and are subject to change without notice. Seller shall not be bound to any price until Seller actually fills Purchaser’s order. Purchaser is responsible for all applicable taxes or for providing a valid tax exemption certificate. Seller will, where required by law, collect taxes for the customer and remit to the appropriate taxing authority. The charge for tax will be indicated on the customer’s invoice.
3. TERMS OF PAYMENT. Seller accepts Mastercard, Visa, Discover, and American Express. Credit may be available pursuant to a separate agreement with Seller. Purchaser shall pay all amounts invoiced by Seller thirty (30) days net from the date of the applicable invoice. Seller reserves the right to require payment in advance and otherwise to modify credit terms, if any. Seller may accept partial payment in an amount less than the full amount of any invoice, but such acceptance shall not constitute a waiver of Seller’s right to collect the balance or accord and satisfaction, notwithstanding Seller’s endorsement of a check or other instrument. If, in the judgment of Seller, the financial condition of Purchaser at any time does not justify continuance of production or shipment on the terms of payment originally specified, Seller may stop production and charge Purchaser an appropriate cancellation fee or require full or partial payment in advance, and in the event any proceeding is brought by or against Purchaser under bankruptcy or insolvency laws, Seller shall be entitled to cancel any order then outstanding without waiving its claim for damages or other remedies. Each shipment made to Purchaser shall be a separate and independent transaction and shall be invoiced separately and Purchaser shall pay for each shipment separately and as invoiced. If shipments are refused or delayed by Purchaser without Seller’s prior written consent, payments shall become due on the date when Seller is prepared to make shipment.
4. TITLE AND DELIVERY. Unless otherwise instructed in writing, Seller shall ship by the method which it deems most advantageous. Transportation will be collect, or if prepaid, will be subsequently billed to Purchaser. Title shall pass to Purchaser and Seller’s liability as to delivery shall cease on delivery of products to carrier at Seller’s facility regardless of any provisions for payment of freight or insurance or the form of shipping documents. Risk of loss or damage in transit will rest with Purchaser. All claims for loss or damage must be filed with the carrier. Claims against Seller for shortages occurring before delivery to carrier shall be waived unless made within ten (10) days after delivery of shipment to Purchaser. Notwithstanding any instruction from the Purchaser. Seller shall have no obligation to ship via carrier which does not comply with applicable law.
5. CONTINGENCIES. All shipping dates and quantities are approximate. Seller will use reasonable efforts to fill all orders according to the agreed schedule and quantity. Seller shall not be responsible for any failure to perform resulting from unforeseen circumstances or causes beyond Seller’s reasonable control. Examples of such causes include, but are not limited to, strikes, fires, floods, labor disputes, accidents, inability to obtain materials or supplies, excessive demand for products over the available supply, customs duties or surcharges, any interruption for any reason in the manufacture of products by Seller’s suppliers, any act of God, or the action of any government. In the event of any delay caused by such contingency, the date of delivery shall, at the request of the Seller, be differed for a period equal to the period of the delay. Where only part of Seller’s capacity to perform is excused under this condition, Seller shall attempt to allocate deliveries among its various customers in a commercially fair and reasonable manner. Where such allocation has been made, reasonable notice of the estimated quota available to Purchaser shall be given.
6. WARRANTY AND SOLE REMEDY. Seller is a distributor of products manufactured by third parties and therefore, all sales are “as is,” “where is” and without warranty of any kind. ALL WARRANTIES WHETHER EXPRESS OR IMPLIED, ALL GUARANTIES AND ALL REPRESENTATIONS AS TO PERFORMANCE, INCLUDING ALL WARRANTIES WHICH, BUT FOR THIS PROVISION, MIGHT ARISE FROM COURSE OF DEALING OR CUSTOM OF TRADE AND INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXPERSSLY EXCLUDED AND DISCLAIMED BY SELLER. No agent, employee or representative of Seller has any authority to bind Seller to any affirmation, representation or warranty relating to the products other than as specifically provided herein.
7. MANUFACTURER’S WARRANTY. The manufacturers of products distributed by Seller may provide a manufacturer’s warranty. Purchaser shall address any issues related to such manufacturer’s warranty, if any, directly with the manufacturer.
8. PRODUCT RETURNS. Returned products will not be accepted without prior authorization from Seller and certain items may not be returnable. Purchaser should inquire regarding the ability to return products when placing orders. Returns may be subject to a restocking charge.
9. LIMITATION OF LIABILITY. Purchaser agrees that the liability of Seller, if any, for breaching these T&Cs and for any damages caused by defective, damaged, or malfunctioning products sold by Seller shall be limited to the repair or replacement of the affected products or the refund of the purchase price paid by Purchaser, at Seller’s election.
10. SPECIAL, INCIDENTIAL, CONSEQUENTIAL OR INDIRECT DAMAGES. INDEPENDENTLY OF ANY OTHER LIMITATION HEREOF AND REGARDLESS OF WHETHER THE PURPOSE OF SUCH LIMITATION IS SERVED, IT IS AGREED THAT IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES.
11. LIMITATION OF ACTIONS. No action against Seller for breach hereof shall be commenced more than one (1) year after the accrual of action.
12. GOVERNING LAW: SEVERABILITY. These terms and conditions of sale shall be governed by the laws of the State of Delaware. Any provisions hereof which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdictions, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability without invalidating the remaining provisions hereof affecting the validity or enforceability of such provision in any other jurisdiction. Purchaser hereby consents to the exercise of jurisdiction over it by any state or federal court within the state of Delaware.
13. ARBITRATION. If a disagreement or controversy of any kind arises between Purchaser and Seller, both parties shall meet to attempt to resolve such disagreement. If the disagreement cannot be resolved by the parties, an informal binding arbitration shall be held. The rules of the informal arbitration shall be agreed upon by the parties prior to the arbitration. To the extent that Purchaser and Seller cannot agree on the rules of the arbitration, the rules of the American Arbitration Association shall apply. As a minimum set of rules, the parties agree as follows:
a. The arbitration shall be held by a single arbitrator mutually acceptable to both parties. If the parties cannot agree on a single arbitrator, each party shall identify one independent individual who shall meet to appoint a single arbitrator.
b. The decision of the arbitrator shall be considered as a final and binding resolution of the disagreement which may be entered as a judgment by any court of competent jurisdiction.
c. The arbitration shall be held in Wilmington, Delaware.
d. Neither party shall sue the other except for enforcement of the arbitrator’s decision.
All disagreements or controversies of any kind whether claimed in tort, contract or otherwise, either concerning this agreement or any other matter whatsoever, shall be arbitrated according to the provisions of this paragraph and shall be brought within one (1) year after the accrual of the disagreement or controversy.
14. MODIFICATIONS. No addition to or deletion from, nor any modifications of these terms and conditions of sale shall be binding upon Seller unless acknowledged and accepted in writing by an authorized officer of the Seller. Any change made by Seller will be deemed accepted by Purchaser unless, within ten (10) days from notice of such change, purchaser notifies Seller of Purchaser’s exception to such change. A waiver by Seller of any default or of any of the terms and conditions of sale shall not be deemed to be a continuing waiver of any other default or of sale, but shall apply solely to the instance to which the waiver is directed.