SUPPLIER TERMS & CONDITIONS

 

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These Purchasing Terms and Conditions ("Terms") govern all purchases made by Service Wire Company ("Buyer") from the seller ("Seller" or “Supplier”) named in any associated Purchase Order ("Purchase Order"). The issuance by Buyer of the Purchase Order to Seller is an offer by Buyer for the purchase of the Goods and Services specified in the Purchase Order in accordance with and subject to these Terms. By accepting the Purchase Order or delivering any Goods or Services, Seller agrees to be bound by these Terms.

 

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“Deliverables” means all documents, work product and other materials that are delivered to Buyer under this Agreement or prepared by or on behalf of Seller in the course of performing the Services. "Goods" means the products, materials, equipment, or other items described in the Purchase Order, as well as all Deliverables. "Services" means the work and services described in the Purchase Order. "Agreement" refers to the Purchase Order together with these Terms.

 

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Seller’s commencement of Services, shipment of any Goods, or written acknowledgment of this Purchase Order constitutes acceptance of these Terms. No other Terms apply unless agreed to in writing by Buyer. The Agreement is not binding on Buyer until Seller accepts the Purchase Order. Buyer may withdraw the Purchase Order at any time before it is accepted by Seller.

 

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All purchases must be made under a written Purchase Order issued by Buyer. Seller must not proceed without a valid Purchase Order. Buyer reserves the right to modify quantities, delivery schedules, or specifications by written notice. Any price, schedule adjustments, changes or cancellations must be mutually agreed upon in writing by authorized representatives of Buyer and Seller.

 

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Prices are firm, agreed to in advance of a Purchase Order and inclusive of all applicable costs for packaging, packing, shipping, carriage, insurance and delivery of the Goods to the delivery address, for labor and materials of the Services, and any duties, tariffs, imposts, taxes or levies unless otherwise stated in the Purchase Order. Prices are not subject to increase without the Buyer’s written consent. No additional charges are applicable unless agreed to in writing. Payment terms are Net 30 days from receipt of a correct and complete invoice referencing Buyers’ Purchase Order and Buyers’ confirmation of satisfactory delivery of all Goods or Services. Invoices must reference the Purchase Order number and must be submitted by Seller upon shipment. The payment currency is in USD. Payment methods include electronic transfer or paper check. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller.

 

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Delivery of the Goods and Services must be made by the date specified in the Purchase Order to the address designated by Buyer. Timely delivery is of the essence. Early deliveries, partial shipments, or late deliveries require prior approval and may result in cancellation of the Purchase Order. Buyer reserves the right to reject Goods and Services delivered outside of agreed delivery dates. Title and risk of loss remain with Seller until delivery is complete and accepted by Buyer at the delivery location. Unless otherwise specified on the Purchase Order, all shipments are FOB Buyer’s facility.

 

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Buyer reserves the right to inspect all Goods and Services, and may at its option inspect all or a sample.  Buyer may reject nonconforming Goods and Services, which may be returned at Seller’s expense and risk. Buyer may exercise all rights and remedies under the Agreement or applicable law.  Acceptance does not waive any rights related to latent defects.

 

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Substitutions of any raw material or component of finished product or change in service is not permitted unless Buyer is notified in writing 60 days in advance of shipment to allow time for qualification.

 

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Seller Warrants that:

• a. All Goods will: (i) be free from any defects in workmanship, material, and design; (ii) conform to applicable specifications, drawings, designs, samples, and other requirements specified by Buyer; (iii) be fit and safe for their intended purpose and operate as intended; and (iv) be merchantable;
• b. No claim, lien, or action exists or is threatened against Seller that would interfere with the sale of the Goods or provision of the Services, or Buyer's use thereof;
• c. None of the Goods or Services, or Buyer’s use thereof, infringe or will infringe or misappropriate any third party's patent or other intellectual property rights.
• d. Buyer will receive good and valid title to the Goods, free and clear of all encumbrances and liens of any kind.
• e. Seller shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with best industry standards for similar services, and shall devote adequate resources to meet its obligations under this Agreement.
• f. Seller is in compliance with, and shall perform the Services in compliance with, all applicable laws.

All warranties survive inspection, acceptance, and payment. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer's discovery of the noncompliance of the Goods or Services with the foregoing warranties. If Buyer gives Seller notice of noncompliance with this Section, in addition to other remedies available to Buyer under the Purchase Order or at law or equity, Seller, if requested by Buyer, shall, at Seller’s own cost and expense, promptly replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer.

 

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Seller shall comply with all applicable local, state, federal, and international laws, regulations, and standards, including but not limited to labor, environmental, and safety laws. Seller shall, before the date on which the Services are to start, obtain, and at all times until the Services are complete, maintain, all necessary licenses, permits and consents required for performance of the Services. If Seller will be on Buyer’s property, Seller shall comply with all rules and policies of Buyer, including security procedures concerning systems and data and remote access thereto, building security procedures, and general health and safety practices and procedures.

 

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All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all Deliverables shall be owned exclusively by Buyer. Seller agrees, and shall cause its employees and permitted subcontractors (collectively, "Seller Personnel") to agree, that with respect to any Deliverables that may qualify as "work made for hire" as defined in 17 U.S.C. §101, such Deliverables are hereby deemed a "work made for hire" for Buyer. To the extent that any of the Deliverables do not constitute a "work made for hire," Seller hereby irrevocably assigns, and shall cause the Seller Personnel to irrevocably assign to Buyer, in each case without additional consideration, all right, title, and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein. The Seller shall cause Seller Personnel to irrevocably waive, to the extent permitted by applicable law, any and all claims such Seller Personnel may now or hereafter have in any jurisdiction to so-called "moral rights" or rights of droit moral with respect to the Deliverables.

 

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All non-public, confidential, or proprietary information of the Buyer, including, but not limited to, trade secrets, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic, or other form or medium, and whether or not marked, designated, or otherwise identified as "confidential," in connection with this Agreement is confidential, may only be used for the purpose of performing this Agreement and may not be disclosed unless authorized by Buyer in writing. Upon Buyer's request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.

 

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Seller agrees to indemnify, defend, and hold harmless Buyer and its affiliates from and against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, or expense, including, but not limited to, attorney and professional fees and costs and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, "Losses") arising from or occurring in connection with the Goods or Services, Seller’s breach of these Terms, noncompliance with laws, injury or damage caused by Seller’s acts or omissions, negligence, or willful misconduct. Seller shall also defend, indemnify, and hold harmless Buyer and its affiliates from and against any and all Losses arising out of or in connection with any claim that the Goods, Services or Deliverables or Buyer's or such affiliate’s use or possession of thereof infringes or misappropriates the patent, copyright, trade secret, or other Intellectual Property Rights of any third party. In no event shall Seller enter into any settlement without Buyer's or, as applicable, its affiliate’s prior written consent.

Unless the Purchase order specifies additional coverage, Seller  shall at all times during the term of this Agreement provide and maintain at its own cost (i) Workers’ Compensation and Employers’ Liability insurance in compliance with all applicable statutory requirements; (ii) comprehensive general liability insurance in an amount no less than $1,000,000 per occurrence and $3,000,000 aggregate; (iii) owned and non-owned automobile insurance in an amount no less than $1,000,000 per occurrence and $3,000,000 aggregate; and (iv) any other insurance coverages appropriate for the Goods or the performance of the Services.  All such insurance shall be with insurers reasonably satisfactory to the Buyer, and shall list Buyer as an additional insured.  Seller shall provide upon request a copy of certificates of insurance evidencing the maintenance of the insurance required under this Agreement, and each such certificate of insurance shall include: (i) a waiver of subrogation in favor of Buyer; (ii) a statement that Buyer will receive thirty (30) days’ notice if any coverages are cancelled; and (iii) confirmation that Buyer is an additional insured. 

 

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Buyer shall not be liable for any lost profits or indirect, incidental, or consequential damages. Buyer’s maximum liability to Seller shall not exceed the aggregate amount paid and payable under the Purchase Order. This limitation does not apply to liability arising from gross negligence or willful misconduct.

 

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Buyer may terminate this Agreement, in whole or in part, at any time with or without cause for undelivered Goods on written notice to Seller. In addition to any other remedies that may be provided under these Terms or otherwise, including without limitation return of nonconforming Goods, Buyer may terminate this Agreement with immediate effect upon written notice to the Seller if Seller has not performed or complied with this Agreement, in whole or in part. If the Seller becomes insolvent, is generally unable to pay, or fails to pay, its debts as they become due, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors, then the Buyer may terminate this Agreement upon written notice to Seller. If Buyer terminates this Agreement for any reason, Seller's sole and exclusive remedy is payment for conforming Goods and Services received and accepted by Buyer prior to the termination.

Warranty provisions, Sellers’ liability and indemnification obligations, limitation on liability, dispute resolution, and any other provisions which by their nature are reasonably anticipated to extend beyond termination shall survive termination.

 

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Neither party shall be liable for delays or non-performance due to causes beyond their reasonable control (e.g., natural disasters, strikes, acts of government), provided notice is given promptly and performance resumes as soon as possible.

 

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Any disputes arising from this Agreement shall first be resolved through mediation in accordance with the rules of the American Arbitration Association (AAA). The mediation shall take place in Charleston, West Virginia. If the mediation does not result in a resolution within 60 days, the dispute shall be resolved through binding arbitration by a single arbitrator in Charleston, West Virginia, under the rules of the American Arbitration Association (AAA).  All matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, shall be governed by and construed in accordance with the internal laws of the State of West Virginia, without giving effect to any choice or conflict of law provision or rule (whether of the State of West Virginia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of West Virginia.

 

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The Agreement constitutes the entire agreement of the parties and supersedes all prior or contemporaneous agreements, understandings, negotiations, representations and warranties and communications, both written and oral, with respect to the subject matter of the Purchase Order. The Agreement expressly limits Seller’s acceptance to the terms of the Agreement. The terms of the Agreement prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with the Purchase Order. No change to the Agreement is binding upon Buyer unless it is in writing, specifically states that it amends the Agreement, and is signed by an authorized representative of Buyer. If any provision is determined unenforceable, the remainder shall remain in full force and effect. Seller may not assign or subcontract without Buyer’s prior written consent. Notices must be in writing and delivered to the addresses stated on the Purchase Order.  No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Purchase Order, no failure or delay in exercising any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof.

 

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• a. Compliance Requirement: Supplier shall comply with all applicable requirements of the Build America, Buy America Act (“BABA”), as set forth in Public Law 117-58 (Infrastructure Investment and Jobs Act), and any implementing regulations, guidance, or waivers issued by the U.S. Office of Management and Budget, Federal agencies, or other applicable authorities.
• b. Domestic Sourcing: Supplier represents and warrants that all raw materials and materials used within manufactured components (see NEMA  70901-2024 found at 2 CFR 184.3) are produced in the United States, as required by BABA, unless an approved waiver has been obtained.
• c. Certification: Supplier shall provide upon request certifications, documentation, and other evidence necessary to demonstrate compliance with BABA requirements, including but not limited to Bill of Materials containing product origin information location or facility at which the Supplier manufactures the raw material or components, costs, transportation costs, and an assessment of whether the processes performed at the location satisfy the definition of “manufacturing”.
• d. Waivers: In the event that the Supplier seeks a waiver of BABA requirements, such waiver must be formally requested in writing and approved by an Officer of the Buyer.
• e. Flow-Down: Supplier shall include this BABA compliance requirement in all lower-tier subcontracts, purchase orders, and supplier agreements. The Supplier is responsible for ensuring that all subcontractors and suppliers comply with BABA requirements.