General Terms & Conditions
Unless otherwise specifically agreed to in writing and signed by an authorized representative of Omni Cable, LLC, Houston Wire and Cable Company, HWC Wire and Cable Company, and their subsidiaries (collectively referred to as "Company"), all orders received by Company from its customers (“Buyers”) are subject to the following Terms and Conditions of Sale (“Terms”). Offers to purchase can be accepted only by an authorized representative of Company and offers to purchase are not effective or binding until approved in writing by Company. Any different or additional Terms proposed by Buyer in its purchase order or otherwise are hereby rejected by Company and shall not be incorporated into the Agreement. These Terms 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 may not be modified except by written agreement signed by an authorized representative of both Buyer and Company. No modification of these Terms shall be effected by the acknowledgement or acceptance of confirming purchase orders, invoices or other documents from the Buyer. These Terms supersede all previous terms.
Company will issue an order acknowledgement form upon acceptance and authorization of an order. The
acknowledgement constitutes the entire agreement between Company and the Buyer and supersedes any previous agreements. Firm Price (as defined below) 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 and charges per applicable quotation are stated in U.S. dollars unless otherwise noted and are subject to any price adjustment necessitated by Company's compliance with any act of government, laws, or regulations. Buyer's order is subject to Company's applicable Price Escalation Policy (to be determined in Company'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 Company 's price in effect on date of shipment.
“Price in Effect”: All shipments will be invoiced at Company'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 Company's price in effect on date of shipment.
Any tax or other governmental charge upon the production, sale, shipment, or use of the product which Company is required to pay or collect from Buyer shall be paid by Buyer unless, prior to shipment, Buyer has furnished Company 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 Company, Company's vendors, suppliers or subcontractors are required to pay, accumulative with other penalties or fees thereto.
Terms of Payments
Domestic Shipments - Net 30 (Credit Approval Required); Export Shipments - Unless otherwise approved by Company's Credit Department, all export sales must be secured by a confirmed irrevocable letter of credit or advance wire transfer of funds. Service charges will begin accruing after due date on the amount due thereunder at the highest permissible contract rate allowed by governing law, not to exceed 1 ½% per month. In addition, Buyer shall pay all reasonable attorney fees and expenses incurred by Company in connection with the collection of the invoice amount and service charges. Company reserves the right to set-off any sums due to Buyer under the Agreement against any sums due from Buyer to Company for damages, refunds or otherwise, whether or not those sums are due at the time of setoff.
Loss, Damage, or Delay
Company shall not be obligated to perform under these Terms, 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 Company'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 Company, whether similar or dissimilar to any of the aforementioned causes. In the event of a delay in performance due to any such cause, Company may postpone its performance by such length of time as may be reasonably necessary.
Orders will not be cancelled or modified either in whole or in part, after Company has issued its acknowledgement to Buyer, without Company's written consent and then may be subject to a payment of a reasonable and proper cancellation charge that will reimburse Company for applicable costs incurred by virtue of the order, including cost of materials and a reasonable allowance for profit. NONSTOCK AND SPECIAL MADE-TO-ORDER PRODUCTS AS IDENTIFIED ON THE ORDER ACKNOWLEDGEMENT ARE NOT SUBJECT TO CANCELLATION BY THE BUYER UNDER ANY CIRCUMSTANCES.
Disclaimer of Warranties
COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTY, STATUTORY OR OTHERWISE, CONCERNING ANY PRODUCT,
INCLUDING WITHOUT LIMITATION ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OF MERCHANTABILITY, OR ANY WARRANTY AS TO QUALITY OR CORRESPONDENCE WITH A DESCRIPTION OR SAMPLE.
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 Company sales office for details. Buyer acknowledges that any applicable warranties are the warranties of the manufacturer of the product only, not warranties of Company, and that any claim brought by Buyer with respect to these warranties will be brought against the manufacturer.
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 Company 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. Company shall have no responsibility or liability with respect to:
- matters not reported in writing within three (3) months of the date of shipment;
- failure or damage due to misapplications, abuse, improper installation or abnormal conditions of use;
- products damaged in shipment or otherwise damaged through no fault of Company;
- 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:
- failure or damage which cannot conclusively be proven to have proximately and solely resulted from a defect in materials or workmanship.
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 these Terms by Buyer, its agents and employees, and its subcontractors, their agents and employees, regardless of whether such claims or actions are founded in part upon alleged negligence by Company's representatives, or the employees, agents, invitees, or licensees thereof. Buyer further agrees to indemnify and hold harmless Company 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 Company, Company's representatives, and employees, agents, invitees, and licensees thereof, regardless of whether such claims or actions are founded in part upon the alleged negligence of Company, Company's representatives, or the employees, agents, invitees, or licensees thereof. IT IS THE EXPRESS INTENT OF THE PARTIES THAT COMPANY MAY BE INDEMNIFIED FOR CHARGES ARISING FROM ITS OWN NEGLIGENCE, HOWEVER ALLEGED, WHETHER CONCURRENT OR CONTRIBUTORY.
Since products sold by Company are not manufactured by it, but are sold under their respective manufacturer's brand or trade names, Company 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.
These Terms, the relative rights and obligations of the parties arising out of or relating to these Terms and any other matter referred to in these Terms, and the terms and provisions of these Terms shall be governed by, and construed in accordance with, the laws of the State of Delaware, 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.
In partial consideration, the Parties expressly and irrevocably waive any and all objections they may have to the
jurisdiction and/or venue concerning the litigation of claims arising from or relating to these Terms. The Parties expressly agree that only state or federal courts in Bear, Delaware, New Castle County shall have exclusive jurisdiction to settle any and all disputes arising from or relating to these Terms. The Parties irrevocably waive any objection they may have to;
- any proceedings being brought in any such court as is referred to in this clause and;
- 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 aforementioned state or federal courts shall be binding upon the Parties and may be enforced in the courts of any other jurisdiction.
Error, Mistake or Assignment
Company reserves the right to correct any clerical or human error made in the preparation of quotations, orders, acknowledgements or invoices. Corrections shall be considered as binding amendments to these Terms. These Terms may not be assigned without the prior written consent of Company. Any attempt to assign any of the rights, duties or obligations of these Terms without such signed written consent shall be void. The Buyer acknowledges that Buyer has read these Terms, understands it and agrees to be bound by its Terms.
If any provision or provisions of these Terms, 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 these Terms shall be interpreted to effect the original intent of the parties as closely as possible. If any provision in these Terms is so broad as to be unenforceable, the provision shall be interpreted to be only as broad as is enforceable.
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 Company for recycling. Buyer must contact the local Company sales office for details. Returnable steel reels are loaned for transportation and installation purposes only and remain the property of Company. 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 Company.
- 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 steel 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 or no credit. No steel reels may be returned without a prior written authorization signed by an authorized representative of Omni Cable.
Tolerance on Shipping Lengths and Quantity
All Company products will have shipping tolerances as detailed below, unless otherwise agreed upon prior to receipt of an order:
- Authorized Stock Products -0 + 10%
- Made-to-Order Products -0 + 10%
- Special Orders or Lengths As shown on the quotation and/or acknowledgement
- 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 Company within fifteen (15) days from date of invoice.
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 Company in Company’s sole discretion. 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 Company 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. Company will ship via conventional methods unless otherwise specified.
Title and Risk of Loss
Title to product and risk of loss shall pass from Company to Buyer as product is loaded onto carrier's equipment at Company 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:
- No Charge for CTR's requested on the original purchase order prior to or with initial shipment.
- $25.00 For CTR's requested within one (1) year after initial shipment.
- $50.00 For CTR's requested one (1) year or more after initial shipment.
A Certificate of Compliance (COC) is included on the packing list of each shipment from Company shipping location at no charge. The price per order for a line-item COC, which includes the cost to publish a certified, original copy will be as follows:
- $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.
Permission must be obtained in writing from Company 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. Any request for a return must be made within 60 days of the item invoice date. Any material returned without RMA documentation cannot be processed. Company is not responsible for any material damaged during transit. Damaged freight will be refused at our dock. All Value-Add items such as material striped, twisted, paralleled, or lashed are considered processed and no longer eligible for return. Material cut to length or otherwise modified to customer specification, obsolete, discontinued or close out items and any material not passing Company inspection does not qualify for return credit. 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. Company reserves the right to change this policy at its discretion.
Relationship of the Parties.
Nothing contained within these Terms shall be construed to form any exclusive relationship, partnership, joint venture, agency, franchise, or employment relationship.
Successors; No Assignment.
The terms of the Agreement shall inure to the benefit of and be binding on the successors and assigns of the parties.
These Terms are an electronic contract that sets out the legally binding terms of the parties. Buyer indicates acceptance of these Terms by its purchases of products. This action creates an electronic signature that has the same legal force and effect as a handwritten signature.
Modification of these Terms.
Company may modify these Terms at any time by posting a revised version on Company’s website (the “Site”). The modified Terms will become effective upon posting. By placing an order after the effective date of any modifications to these Terms, Buyer agree to be bound by the modified Terms. It is Buyer’s responsibility to check the Site regularly for modifications to these Terms. Company last modified these Terms on the date listed at the beginning of these Terms.