- Acceptance - Unless otherwise specifically agreed to in writing and signed by an authorized representative of Houston Wire & Cable Company (collectively referred to as "HWC"), all orders received by HWC are subject to the following Terms and Conditions of Sale. Offers to purchase can be accepted only by an authorized representative of HWC and offers to purchase are not effective or binding until approved in writing by HWC. Any different or additional Terms and Conditions proposed by Buyer in its purchase order or otherwise are hereby rejected by HWC and shall not be incorporated into the Agreement. These Terms and Conditions shall apply to all of Buyer's purchase orders, irrespective of any provisions in Buyer's purchase orders or other business forms. These terms constitute the entire Agreement and notice of objection to any different or additional terms is hereby given or is waived. These Terms and Conditions may not be modified except by written agreement signed by both Buyer and a Vice President of HWC. No modification of this Agreement shall be effected by the acknowledgement or acceptance of confirming purchase orders, invoices or other documents from the Buyer. These Terms and Conditions supercede all previous Terms and Conditions and are subject to change at any time without prior notice.
- Acknowledgement - HWC will issue an order acknowledgement form upon acceptance and authorization of an order. The acknowledgement constitutes the entire agreement between HWC and the Buyer and supercedes any previous agreements. Prices and delivery dates stated on the order
acknowledgement shall prevail in the event of a discrepancy between it and the Buyer's written order. Stock material is subject to prior sale.
- Prices - Prices and charges per applicable quotation are stated in U.S. dollars unless otherwise noted and are subject to any price adjustment necessitated by HWC's compliance with any act of government, laws or regulations. Buyer's order is subject to HWC's applicable Price Escalation Policy (to be determined in HWC's sole discretion) as follows: Firm Price All shipments will be invoiced at the prices agreed to on the quotation and the order acknowledgement and are not subject to change on date of shipment. Should shipment be deferred by Buyer beyond two months from date of order acknowledgement, shipments will then be invoiced at HWC's price in effect on date of shipment. Price in Effect All shipments will be invoiced at HWC's price in effect on the date of shipment. Firm Except Metals All shipments will be invoiced at the prices agreed to on the quotation and the order acknowledgement except for adjustments either upward or downward for the price of metals on date of shipment. Should shipment be deferred by Buyer beyond two months after the date of order acknowledgement, shipments will be invoiced at HWC's price in effect on date of shipment.
- Taxes - Any tax or other governmental charge upon the production, sale, shipment, or use of the product which HWC is required to pay or collect from Buyer shall be paid by Buyer unless, prior to shipment, Buyer has furnished HWC with a tax exemption certificate acceptable to the appropriate taxing authority. Unless specifically identified on the face of an invoice, invoices include no federal, state, or local property, license, privilege, sales, use, excise, gross receipts or other like tariffs which may now or hereafter be applicable to, measured by, or imposed upon or with respect to the transaction, the property, its sale, its value, or its use, or any service(s) performed in connection therewith. Buyer agrees to indemnify, pay or reimburse any such taxes or tariffs which HWC, HWC's vendors, suppliers or subcontractors are required to pay, accumulative with other penalties or fees thereto.
- Minimum Order - The minimum order is $50.00 for all authorized stock products. Higher minimum orders may apply for non-stock and made-to-order products. Please contact your local HWC sales office for details.
- Payment - Pro rata payments are due as shipments are made. If shipments are delayed by Buyer, payments are due from the date when HWC is ready to ship. If fabrication is delayed by Buyer, payment shall be made based on the contract price and percent of completion. Products held for Buyer shall be at the risk of and the expense of Buyer.
- Terms of Payment - Domestic Shipments - Net 30 (Credit Approval Required); Export Shipments - Unless otherwise approved by HWC's Credit Department, all export sales must be secured by a confirmed irrevocable letter of credit or wire transfer of funds. Both of the above must be in U.S. dollars and issued by a national banking association with a branch in Texas and/or a correspondent bank of such a national banking association with a branch in Texas.
- Loss, Damage, or Delay - HWC shall not be obligated to perform under this Agreement, and shall not be liable for any damages (including, but not limited to, consequential, special or punitive damages or damages for lost profits) in connection with such nonperformance, when HWC's ability to perform is impeded, restricted or affected by strikes, work stoppages or other action by workmen, any act or omission by a governmental authority or by Buyer, insurrection or riot, war, terrorism, embargo, railcar shortage, wreck or delay in transportation, inability to obtain necessary labor, materials or manufacturing facilities from usual sources under usual terms, breakdown in the manufacturing process, disruption in the supply chain, acts of God and/or nature or any other cause beyond the reasonable control of HWC, whether similar or dissimilar to any of the aforementioned causes. In the event of a delay in performance due to any such cause, HWC may postpone its performance by such length of time as may be reasonably necessary.
- Cancellation / Default - Orders will not be cancelled or modified either in whole or in part, after HWC has issued its acknowledgement to Buyer, without HWC's written consent and then may be subject to a payment of a reasonable and proper cancellation charge that will reimburse HWC for applicable costs incurred by virtue of the order, including cost of materials and a reasonable allowance for profit. NON-STOCK AND SPECIAL MADE-TO-ORDER PRODUCTS AS IDENTIFIED ON THE ORDER ACKNOWLEDGEMENT ARE NOT SUBJECT TO CANCELLATION BY THE BUYER UNDER ANY CIRCUMSTANCES.
- Manufacturers' Warranties - Product may be covered, to the extent available, by warranties that are extended by the manufacturer of the product. Copies of applicable warranties are available upon request. Please contact your local HWC sales office for details. Buyer acknowledges that any applicable warranties are the warranties of the manufacturer of the product only, not warranties of HWC, and that any claim brought by Buyer with respect to these warranties will be brought against such manufacturer.
- HWC's Product Warranty - Should any HWC product not covered by a manufacturer’s warranty prove to contain a manufacturing defect within one (1) year from the date of HWC's invoice, upon written notice and return of the product to HWC, the product will be replaced or repaired at HWC’s sole option f.o.b. original destination point. HWC will not be obligated in any way for installation costs, incidental or consequential damages or costs, loss of profits, or any other costs resulting from any defect.
HWC'S PRODUCT WARRANTY APPLIES ONLY TO OEM, COMMERCIAL OR INDUSTRIAL USERS OR PURCHASERS FOR PURPOSES OF RESALE OF PRODUCTS THAT ARE NOT OTHERWISE COVERED BY A MANUFACTURER'S WARRANTY. HWC'S PRODUCT WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED. HWC EXPRESSLY DISCLAIMS ALL UCC AND COMMON LAW IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- Limitation of Liability - Neither party shall be liable for any lost profits or any special, indirect, incidental, or consequential damages. The remedies of Buyer set forth herein are exclusive, and the liability of HWC with respect to any contract or sale, or anything done in connection therewith, whether in contract, in tort under any warranty, or otherwise, shall not exceed the price of the product or part on which such liability is based. Responsibility is limited to the cost of the product and does not include the cost of any labor charges. HWC shall have no responsibility or liability with respect to: 1) matters not reported in writing within twelve (12) months of the date of shipment; 2) failure or damage due to misapplications, abuse, improper installation or abnormal conditions of use; 3) products damaged in shipment or otherwise damaged through no fault of HWC; 4) expenses incurred by Buyer for installation of products prior to discovery of the alleged defect or expenses incurred in an attempt to correct the same; 5) expenses incurred by Buyer for removal of non-conforming products and the expense of installation of replacement products; 6) failure or damage which cannot conclusively be proven to have proximately and solely resulted from a defect in materials or workmanship. BUYER HEREBY WAIVES ANY RIGHTS THAT BUYER MAY HAVE UNDER THE TEXAS DECEPTIVE TRADE PRACTICES ACT AS SET OUT IN THE TEXAS BUSINESS & COMMERCE CODE SECTIONS 17.41 ET SEQ. (EXCEPT RIGHTS UNDER SECTION 17.55A WHICH CANNOT BE WAIVED) TO THE EXTENT THAT BUYER MAY LAWFULLY DO SO.
- Indemnification and Hold Harmless - Buyer assumes responsibility and liability for any claim or action based on or arising out of injuries, including death, to persons or damages to or destruction of property, sustained or alleged to have been sustained in connection with or to have arisen out of or incidental to the performance of this Agreement by Buyer, its agents and employees, and its subcontractors, their agents and employees, regardless of whether such claims or actions are founded in whole or in part upon alleged negligence by HWC, HWC's representatives, or the employees, agents, invitees, or licensees thereof. Buyer further agrees to indemnify and hold harmless HWC and its representatives, and the employees, agents, invitees, and licensees thereof in respect of any such matters and agrees to defend any claim, suit or action brought against HWC, HWC's representatives, and employees, agents, invitees, and licensees thereof, regardless of whether such claims or actions are founded in whole or in part upon the alleged negligence of HWC, HWC's representatives, or the employees, agents, invitees, or licensees thereof. IT IS THE EXPRESS INTENT OF THE PARTIES THAT HWC MAY BE INDEMNIFIED FOR CHARGES ARISING FROM ITS OWN NEGLIGENCE, HOWEVER ALLEGED, WHETHER CONCURRENT, CONTRIBUTORY OR SOLE.
- Patents - Since products sold by HWC are not manufactured by it, but are sold under their respective manufacturer's brand or trade names, HWC disclaims all warranties against patent infringement. It shall, however, if given prompt notice by the Buyer of any claim of patent infringement with respect to any product sold hereunder, use commercially reasonable efforts to secure for the Buyer such indemnity rights as the manufacturer may customarily give with respect to such product.
- Governing Law - This Agreement, the relative rights and obligations of the parties arising out of or relating to this Agreement and any other matter referred to in this Agreement, and the terms and provisions of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas, without giving any effect to any choice or conflicts of law provision or rule that would result in the application of the laws of another jurisdiction.
- Forum Selection - In partial consideration, the Parties expressly and irrevocably waive any and all objections they may have to the jurisdiction and/or venue concerning the litigaton of claims arising from or relating to this Agreement. The Parties expressly agree that only state or federal courts in Houston, Texas, Harris County, shall have exclusive jurisdiction to settle any and all disputes arising from or relating to this Agreement. The Parties irrevocably waive any objection they may have to (a) any proceedings being brought in any such court as is referred to in this clause and (b) any such proceedings being brought in an allegedly inconvenient forum. The Parties expressly and irrevocably agree that a judgment in any proceeding brought in the state or federal courts in Houston, Texas, Harris Country shall be binding upon the Parties and may be enforced in the courts of any other jurisdiction.
- Error, Mistake or Assignment - HWC reserves the right to correct any clerical or stenographic error made in the preparation of quotations, orders, acknowledgements or invoices. Corrections shall be considered as binding amendments to the original contract of sale. This agreement is not assignable without the prior written consent of HWC. Any attempt to assign any of the rights, duties or obligations of this Agreement without such consent shall be void. The Buyer acknowledges that Buyer has read this Agreement, understands it and agrees to be bound by its Terms and Conditions.
- Severability - If any provision or provisions of this Agreement, or parts thereof, shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and this Agreement shall be interpreted to effect the original intent of the parties as closely as possible. If any provision in this Agreement is so broad as to be uninforceable, the provision shall be interpreted to be only so broad as is enforceable.
- Reels - Non-returnable wooden/plastic reels are used whenever possible and are normally included in the sales price of the wire. Wooden/plastic reels may be returned to HWC for recycling. Please contact your local HWC sales office for details. Returnable steel reels are loaned for transportation and installation purposes only and remain the property of HWC. Returnable steel reels are not included in the price of wire and shall be charged separately. All returnable steel reels are subject to the following terms:
Deposit A deposit is required for each returnable steel reel loaned by HWC. Deposits are charged as a separate item and invoiced to the Buyer at time of shipment. Refund of Deposit A full refund of Buyer's deposit will be made when reels are returned in good condition within one (1) year from date of shipment. Reels returned after one (1) year from date of shipment or in poor condition may be subject to a reduced credit. No reels may be returned without prior written authorization.
- Tolerance on Shipping Lengths and Quantity - All HWC products will have shipping tolerances as detailed below, unless otherwise agreed upon prior to receipt of an order:
Tolerance percentages are applicable to individual lengths. Customer is responsible for paying any overages within the above tolerances. Claims for shipping shortages must be received by HWC within fifteen (15) days from date of invoice.
- Authorized Stock Products -0 + 10%
- Made-to-Order Products -0 + 10%
- Special Orders or Lengths As shown on the quotation and/or acknowledgement
- Cutting, Reel and Wood Lagging Charges - In most circumstances, cutting or reel charges are included in the product price, however, additional charges may be assessed to Buyer by HWC. Where cutting and/or reel charges apply, the number and cost will be indicated in the quotation and/or order acknowledgement to Buyer. Wood lagging will be applied to wooden or steel returnable reels if requested. This nonrefundable charge is extra and is dependent upon the size of the shipping reel. Please consult your local HWC sales office for details and pricing. All additional charges for cutting, reels, and lagging will be charged as separate items and invoiced to the Buyer at time of shipment.
- Delivery and Transportation - F.O.B. Shipping location - for all shipments to destinations in the Continental U.S. served by common carrier. At Buyer's request, orders will be shipped either freight collect, billed to a third party, freight charges prepaid and charged to the Buyer or with will call (no freight charge). Buyer is responsible for material identification, footage count and visual inspection for damage upon receipt of shipment. Claims for freight charge or allowances of any kind will not be considered after fifteen (15) days from receipt of goods. HWC will ship via conventional methods unless otherwise specified.
- Title and Risk of Loss - Title to product and risk of loss shall pass from HWC to buyer as product is loaded onto carrier's equiment at HWC shipping location.
- Certified Test Reports and Certificates of Compliance - The price for Certified Test Reports (CTR's) which includes the cost to perform necessary tests, collect the data, publish the original test report and maintain reports on file for a minimum of five years will be as follows:
A Certificate of Compliance (COC) is included on the packing list of each shipment from an HWC shipping location at no charge. The price per order for a line item COC, which includes the cost to publish a certified, notarized, original copy will be as follows:
- No Charge For CTR's requested on the original purchase order prior to or with initial shipment.
- $75.00 For CTR's requested within one (1) year after initial shipment.
- $150.00 For CTR's requested one (1) year or more after initial shipment.
- $25.00 For COC's requested on the original purchase order prior to or with initial shipment.
- $75.00 For COC's requested within one (1) year after initial shipment.
- $150.00 For COC's requested one (1) year or more after initial shipment.
- Returns - Permission must be obtained in writing from HWC before any product is returned in the form of an approved Returned Material Authorization (RMA) number. A restocking charge, plus freight, will be assessed for authorized returns of standard stock material in saleable condition. Returns will not be accepted after 90 days of shipment. NON-STOCK AND SPECIAL MADE-TO-ORDER PRODUCTS AS IDENTIFIED ON THE ORDER ACKNOWLEDGEMENT ARE NOT SUBJECT TO RETURN BY THE BUYER UNDER ANY CIRCUMSTANCES.