These terms and conditions of sale (these "Terms") are the only terms that govern the sale of the goods ("Goods") by Service Wire Company ("Service Wire Co.") to the buyer named on the Order Confirmation (as defined below) ("Buyer"). Collectively Buyer and Service Wire Co. are referred to as the "Parties" and individually as a "Party."
The Sales Order issued by Service Wire Co. (the "Order Confirmation") and these Terms (collectively, this "Agreement") comprise the entire agreement between the Parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement supersedes any of Buyer's general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer's order does not constitute acceptance of Buyer’s terms or serve to modify or amend these Terms. Acceptance of the Order Confirmation by Buyer (which shall be deemed accepted should Buyer not object in Writing within three (3) business days of receipt of the Order Confirmation) is a prerequisite to the purchase of the Goods and shall operate as an acceptance of these Terms which are expressly incorporated into the Order Confirmation. A standard, form purchase order or similar document issued by Buyer shall not constitute a written objection to the terms herein. Rather, a written notice must be emailed separately to Credit@servicewire.com and must state with particularity those specific terms to which Buyer objects. In the event this written notice is not timely sent before shipment or delivery of the product, then Buyer waives any and all rights to object to the terms herein.
No waiver by Service Wire Co. of any of the provisions of this Agreement is effective unless explicitly set forth in Writing and signed by Service Wire Co. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement by Service Wire Co. operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder by Service Wire Co. precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by Service Wire Co.
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
This Agreement benefits solely the Parties to this Agreement. Nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
All notices shall be in Writing and addressed to the Parties at the addresses set forth on the face of the Order Confirmation or to such other address for either Party as that Party may designate by written notice. All notices must be delivered by nationally recognized overnight courier, certified or registered mail (in each case, return receipt requested), or by email. When the term “Writing” is used in these Terms, it means any written communication, whether communicated by mail or email.
If any term or provision of this Agreement is determined to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Service Wire Co. reserves the right, by giving notice to Buyer at any time before delivery, to increase or decrease the price to reflect any increase in the cost to Service Wire Co. which is due to: (a) any factor beyond the control of Service Wire Co., including any foreign exchange or commodity fluctuation (unless a firm copper contract has been signed by the Parties), currency regulation, alteration of duties any increase in the costs of labor, materials, raw materials or other costs of supply or any increase in the costs of sourcing the Goods; (b) any change in delivery dates, quantities or specifications for the Goods which is requested by Buyer; or (c) any delay or expense caused by any instructions of Buyer or failure of Buyer to give Service Wire Co. adequate information or instructions. Prices do not include sales, use, excise, value added or similar taxes and, where applicable, such taxes shall be invoiced as a separate line item and paid by Buyer. Any deviation after placement of order such as changes in quantity or partial release or change in ship dates may increase price. If Buyer and Service Wire Co. have signed a Firm Copper Contract, the terms of the Firm Copper Contract will control over any inconsistent terms contained in these Terms.
The Goods will be shipped by the Promised Date stated in the Order Confirmation after the receipt of Buyer's purchase order, subject to availability of the Goods. Delivery commitments are estimates based upon the best information present at time of quotation and/or time of order entry but may change due to conditions beyond Service Wire Co.’s control. Service Wire Co. shall have no liability whatsoever for delays, loss or damage in transit. Extended requested delivery dates (defined as 30 days or quoted manufacturing lead time, whichever is longer) are subject to price revisions or cancellation of the order by Service Wire Co.
Unless otherwise agreed in Writing by the Parties in the Order Confirmation, Service Wire Co. shall deliver the Goods Ex Works Service Wire Co.’s dock (“Shipping Point”) using Service Wire Co.’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods promptly upon receipt of the Goods at the Shipping Point. Buyer is responsible for fees associated with not taking timely delivery of the Goods, such as storage fees at a minimum rate of one-half of one percent of the invoice amount per day. Such storage fees will begin to accrue if Buyer does not take delivery of the Goods within three (3) days of delivery of the Goods to the Shipping Point. Service Wire Co. reserves the right to invoice Buyer immediately if Buyer rejects shipment.
Buyer’s order is accepted subject to Service Wire Co. being able to obtain the necessary raw materials and subject to government priorities and other government regulations that may be issued from time to time. Availability of items quoted as “stock” are done so on a “subject to prior sales” basis.
Service Wire Co., may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer's purchase order.
Title and risk of loss pass to Buyer upon shipment of the Goods at the Shipping Point.
Payment is due and payable thirty (30) days after invoice date unless otherwise specified by Service Wire Co. A finance charge of 1.5% per month or the maximum amount permitted by law, whichever is less, will be added to the unpaid balance on all accounts not paid in full on the due date Buyer shall reimburse Service Wire Co. for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. Time is of the essence. In addition to all other remedies available under this Agreement or at law (which Service Wire Co. does not waive by the exercise of any rights hereunder), Service Wire Co. shall further have the right, at its option, to terminate this Agreement without notice to Buyer if payment is not made on the due date or if Buyer becomes insolvent, or if Buyer’s ability to pay debts in the normal course of business otherwise becomes impaired. If, in the sole judgment of Service Wire Co., the financial condition of Buyer at the time of manufacture or shipment does not justify the terms or payment specified, Service Wire Co. reserves the right to require full or partial payment before manufacture or shipment and to suspend any further performance until such payment has been received. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Service Wire, Co. whether relating to Service Wire Co.’s breach, bankruptcy, or otherwise.
On all orders, quantities are subject to a quantity variation of +/- 10% unless otherwise specified or agreed upon. If Service Wire Co. delivers to Buyer a quantity of Goods of up to 10% more or less than the quantity set forth in the Order Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods at the price set forth in the Order Confirmation adjusted pro rata.
Buyer shall inspect all Goods upon receipt. Buyer will be deemed to have accepted the Goods unless it notifies Service Wire Co. in Writing within 48 hours of receiving shipment of any Nonconforming Goods (as defined below), returns the goods within seven (7) days of receipt and furnishes such written evidence or other documentation as required by Service Wire Co. "Nonconforming Goods" means only the following: (i) product shipped is different than identified in the Order Confirmation; or (ii) product's label or packaging incorrectly identifies its contents.
If Buyer timely notifies Service Wire Co. of any Nonconforming Goods, Service Wire Co. shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the price for such Nonconforming Goods which are returned by Buyer to Service Wire Co. If Service Wire Co. exercises its option to replace Nonconforming Goods, Service Wire Co. shall, after receiving Buyer's return shipment of Nonconforming Goods, ship the replaced Goods to Buyer and issue Buyer a credit for the cost of shipping for the returned Goods. Title and risk of loss for replacement Goods shall transfer to Buyer when the replacement Goods are made available to Buyer at Service Wire Co.’s dock.
Buyer acknowledges and agrees that the remedies set forth in this section are Buyer's exclusive remedies for Nonconforming Goods. Except as provided in this section, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Service Wire Co. other than as specifically set forth in this section.
Goods cut to Buyer’s measurements, or manufactured to Buyer’s specifications, are non-cancelable and non-returnable. No credit will be allowed for Goods returned without Service Wire Co.’s prior authorization, nor will Service Wire Co. accept responsibility for return shipping costs.
Service Wire Co. warrants to Buyer that: (a) for a period of twelve (12) months from the date of delivery of the Goods (the "Warranty Period"), the Goods will materially conform to Service Wire Co.'s published specifications in effect as of the date of manufacture under the corresponding Order Confirmation; and (b) Buyer will receive good and valid title to the Goods, free and clear of all encumbrances and liens. The warranties under this section do not apply where the Goods have been: (i) subjected to abuse, misuse, neglect, negligence accident, abnormal physical stress or environmental conditions, use contrary to any instructions issued by Service Wire Co., or improper testing, installation, storage, handling, repair, or maintenance; (ii) reconstructed, repaired, or altered by anyone other than Service Wire Co. or its authorized representative; or (iii) used with any third-party product, hardware, or product that has not been previously approved in Writing by Service Wire Co.
Should any Goods prove defective due to defects in manufacture within the Warranty Period, upon written notice to Service Wire Co.,such goods shall be replaced F.O.B. original destination point. This guarantee covers the cost of replacement of the product only and does not include the cost for installation, shipping, and handling. This section sets forth Buyer’s sole and exclusive remedy and Service Wire Co.’s entire liability for any breach of the limited warranty set forth in this section.
In no event will Service Wire Co. be liable to Buyer or the ultimate user of the Goods or any other party, for any loss of profits, loss of use, cost to repair, replacement of damaged goods or property; or any other indirect, incidental, special, exemplary, punitive, enhanced or consequential damages arising out of or related to this Agreement or the use of the Goods, even if Service Wire Co., or its agents or representatives, has been advised of the possibility of such damages. Service Wire Co.’s aggregate liability arising out of or relating to this Agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, shall not exceed the total of the amounts paid to Service Wire Co. pursuant to this Agreement for such order.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION, SERVICE WIRE CO. MAKES NO EXPRESS OR IMPLIED WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SERVICE WIRE CO., OR ANY OTHER INDIVIDUAL OR ENTITY ON SERVICE WIRE CO.'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION OF THIS AGREEMENT.
Orders for product cut to Buyer’s measurements or manufactured to Buyer’s specifications may not be cancelled. All other orders may be cancelled by Buyer following payment to Service Wire Co. of reasonable and proper cancellation charges pursuant to Service Wire Co.’s pricing policy or as determined by mutual agreement.
Any assignment of this Agreement, or any right thereunder, by Buyer without the advance written consent of Service Wire Co. shall be void.
Service Wire Co.’s products are designed and manufactured for use in standard industrial and commercial applications. If our products are to be applied in any location which might be of a hazardous nature, such as atomic installations, commercial or military aircraft, missile installations, space explorations or other critical applications where a failure of a single component could cause substantial harm to persons or property, Buyer shall indemnify and defend Service Wire Co. from and against all damages, losses and liabilities arising from the use of the Goods in such conditions.
PFAS Disclosure: Some of Service Wire Co.’s products are manufactured using components that contain intentionally added per- and polyfluoroalkyl substances, otherwise known as PFAS. In accordance with state laws that govern the use of PFAS, we disclose that certain items in the Service Wire Co. product line are made with PFAS chemicals to improve Service Wire Co.’s products’ functionality, longevity, and performance.
Buyer agrees that in the event there is a dispute between Buyer and Service Wire Co., each Party will pay their individual costs of such proceedings, including but not limited to attorney fees, court costs and other costs (including without limitation all expert witness or other fees incurred, and any and all costs charged by any law firm or attorney). Buyer agrees that any and all disputes with Service Wire Co., including not just contracts but also tort claims, shall be resolved in the state or federal courts situated in Cabell County, West Virginia, and that these courts shall have exclusive jurisdiction over all such disputes and Buyer consents to personal jurisdiction in these courts. Any legal action brought by Buyer against Service Wire Co. shall be filed in the above-mentioned jurisdiction within one (1) year after the cause of action arises or it shall be deemed forever waived.
Service Wire Co. makes no warranty or representation with regard to any patent, trademark, copyright, trade dress, or trade secret, relating to or claimed to arise from any product sold to Buyer. Service Wire Co. will not and does not indemnify or otherwise hold harmless Buyer from any claim of misappropriation or infringement of any patent, trademark, trade dress, trade secret, copyright or other rights relating to any product. Buyer agrees that Buyer will not make any such claim, or seek any such indemnification, and that such a claim or demand by Buyer constitutes a breach of these Standard Terms, and that Buyer shall pay all attorney fees and other court costs incurred by Service Wire Co. in defending against any such claim or demand, whether or not a legal action is commenced or filed.
All non-public, confidential, or proprietary information of Service Wire Co., including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, disclosed by Service Wire Co. to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Service Wire Co. in Writing. Upon Service Wire Co.'s request, Buyer shall promptly return all documents and other materials received from Service Wire Co. Service Wire Co. shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party's ("Impacted Party" reasonable control, including, the following force majeure events ("Force Majeure Events"): (a) acts of God; (b) flood, fire, earthquake pandemic, epidemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) order or action by any governmental authority or requirements of law; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other events beyond the reasonable control of the Impacted Party.