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In consideration of Summit Electric Supply ("Summit") permitting the purchase of materials to the undersigned company or entity ("Applicant") agrees to the following terms and conditions:
Order acceptance. Summit’s acceptance of any order is subject to credit approval by Summit and, when applicable, Summit’s manufacturer (including any party that provides Goods to Summit for resale). Summit reserves the right, upon notice to Buyer, to demand adequate assurance of due performance from Buyer and/or terminate this agreement without liability.
By requesting a quote from or submitting an order to Summit, Buyer agrees that these Terms and Conditions govern all purchases of Goods (and associated services) from Summit. No terms or conditions different from these Terms and Conditions (including government regulations, so-called “flowdown” provisions, and any other terms purported to be incorporated herein) will become part of any contract with Summit unless specifically approved in writing by an authorized Summit representative.
Payments due. Buyer agrees to pay for all materials purchased from Summit by the due date according to the terms of sale stated on each invoice. Payments are not contingent on Buyer’s receipt of payment from third parties. All accounts are due and payable at the remittance address shown on Summit’s invoice. Payments may be applied by Summit to any of Buyer’s outstanding invoices unless Buyer provides specific payment direction. Any prompt payment discounts offered on invoices may be taken only if the invoice is paid not later than the 10th day of the month in which it is due.
Service charge on past due amounts. As allowed by applicable law, Buyer agrees to pay service charges on all past due amounts. Interest shall accrue at 1½% per month on the past due balance, but not to exceed the highest amount lawfully allowed by law in the state in which this application is executed. Acceptance of any payment from Buyer without the accrued interest included shall not be deemed to be a waiver of such accrued interest.
Costs of collection. Buyer agrees to pay all costs of collection, including reasonable attorneys fees that Summit may incur in connection with any effort to collect amounts owing to Summit.
Financial information. Buyer authorizes Summit to obtain credit and financial information concerning the Buyer at any time and from any source. As often as Summit may reasonably request, the Buyer will provide financial statements and such other financial information of the Buyer.
Applicable law. The law of the state in which the applicant’s Summit service center issuing an invoice is located, without reference to its choice of law rules, governs the terms and conditions of sale.
Jurisdiction. Buyer agrees that a legal or equitable action may be brought in an appropriate court in the county and state in which the Summit service center which sold the Goods is located. Buyer agrees that said court has personal jurisdiction over Buyer and that venue is proper in said court. The Buyer and Guarantor(s) waive their rights to a jury trial and agree that at Summit’s discretion, such claims will be subject to arbitration.
Change of control. In the event of any change in character of ownership of the Buyer’s business by incorporation, addition of partners, by change in ownership of the corporation, or otherwise, Buyer shall immediately notify Summit in writing at the address shown on the invoice, certified mail, return receipt requested. Summit will rely on the information provided on the credit application until so notified of the change.
Taxes. Buyer is responsible for additional applicable shipping and handling charges, taxes and duties. Summit shall collect applicable taxes unless Buyer submits a valid tax exemption certificate covering such Goods.
Title and risk of loss. Where Summit delivers Goods directly (via vehicle or over its counter), title to the Goods passes to Buyer upon delivery and all risk of loss or damage after delivery is borne by Buyer. All other sales are F.O.B. point of shipment, and Buyer takes title and assumes responsibility for risk of loss or damage at the point of shipment for such sales. Claims for Goods damaged in transit are Buyer’s sole responsibility when not delivered by Summit’s truck.
Product return. Summit accepts returns of normal stock Goods for 30 calendar days following shipment for exchange or refund if such Goods are in their original cartons, unopened, undamaged, and unused; SUBJECT TO restocking fees equal to the greater of (1) the cost incurred by Summit from its vendor as a result of the cancellation, or (2) 25% of the purchase price. Any Goods which are not returnable to Summit’s manufacturers are subject to a restocking fee of 100% of the purchase price.
Termination. Material breach of these Terms and Conditions is grounds for the termination of a purchase order or other contract of sale between the parties. In the event of any such breach, the non-breaching party will provide the breaching party with written notice of the nature of the breach and the non-breaching party’s intention to terminate. If the breaching party does not cure the breach within 10 days of such notice, the non-breaching party may terminate the order; provided, that the breaching party shall continue its performance to the extent not terminated.
Use of Goods. Unless specifically stated otherwise, Summit does not guarantee that the Goods conform to any plans, specifications, or intended use. Buyer has sole responsibility to verify Summit’s interpretations of plans and specifications, and it is Buyer’s sole responsibility to assure that Seller’s Goods will be accepted on any specific job. When Summit offers substitute Goods on any proposal, Buyer is solely responsible for confirming their acceptability. Buyer is responsible for consulting the National Electric Code and/or any other applicable codes for approved installation procedures, precautions, and safety guidelines.
Delivery from manufacturers. Factory shipping dates are not within Summit’s control and are estimates only. Manufacturers’ factory shipping dates given in advance of actual shipment are approximate and not guaranteed.
Excusable delay. Summit has no liability if its performance is delayed or prevented by causes beyond its reasonable control, including but not limited to, acts of nature, labor disputes, government priorities, transportation delays, inability to perform by its manufacturer(s), and any other commercial impracticability. In the event of such delay, the date of delivery or performance shall be extended for a period equal to the time lost by reason of delay.
Nonconforming goods. Claims that Goods are nonconforming must be made by Buyer by detailed and specific writing within 10 days of Buyer’s receipt of the Goods. Buyer accepts the Goods as conforming and waives any right to reject or revoke acceptance of the Goods if it does not provide such notice within 10 days.
Manufacturers’ warranties. Summit passes to Buyer all manufacturer or vendor warranties for Goods purchased through Summit.
Summit’s warranties. Summit warrants that all Goods sold are free and clear of any security interests or liens. Buyer’s exclusive remedy for breach of such warranty shall be replacement with a new product.
Intellectual property. Summit disclaims warranties and/or indemnifications against infringement of any intellectual property rights.
Other warranties disclaimed. Summit distributes but does not manufacture Goods, and therefore makes no independent warranties other than those specifically set forth herein. There are no other warranties, written or oral, express or implied. No implied statutory warranty of merchantability or fitness for a particular purpose applies. No repair of goods or other costs are assumed by Summit.
Limitations on liability. Summit’s and its manufacturers’ total liability related to any purchase governed by these Terms and Conditions, from the use of Goods furnished by Summit, or from the information, advice, or services provided by Summit is limited to the price of the Goods giving rise to the claim. Neither Summit nor its manufacturers or vendors shall be liable for any special, incidental, direct, consequential, or penal damages (including but not limited to backcharges, labor costs, costs of removal, replacement, testing or installation, loss of efficiency, loss of profits or revenues, loss of the use of goods, downtime, cost of substitute goods, and third party claims).
Liability to Buyer’s customers. Buyer assumes all liability for and agrees to indemnify and hold Summit harmless against all claims for damages made by Buyer’s customers or end users which relate in any way to the Goods sold by Summit.