2. ORDER ACCEPTANCE AND PO ACCEPTANCE
Where a purchase order (“PO”) is issued by a customer, pursuant to these Terms, acceptance of the PO is subject to written acknowledgment by Southwire but may occur by performance by Southwire. Acceptance of the PO constitutes a legally binding agreement, and customer agrees to these Terms and any terms of the applicable order acknowledgment form, if any, except to the extent that the parties have entered into a separate written agreement regarding the subject matter of the applicable PO. Southwire’s failure to insist upon strict performance of these Terms or any terms and conditions specifically negotiated or otherwise applicable to a PO shall not constitute a waiver.
Acceptance of a customer’s PO is based on Southwire providing customer an order acknowledgement form incorporating these Terms. Prices and delivery dates stated on any order acknowledgment form shall prevail in the event of a discrepancy between Southwire and the customer’s submitted PO. Stock products are subject to prior sale.
The customer shall pay the prices quoted or acknowledged within the order acknowledgement form including, all taxes (sales, use, excise, and/or others incurred through commercial transaction), as well as charges stated in the special terms and conditions for a specific product, and charges for customer-requested special packaging, design and specifications.
Southwire reserves the right to modify prices for accepted POs upon a material increase in any of such costs, including without limitation, increases in costs of materials and/or labor, tariffs and/or regulatory fees. Prices are subject to adjustment without notice to conform to prices in effect on the date of order shipment and apply only to the specific product ordered.
Unless specific credit terms are approved by the Southwire Credit Department, payment terms shall be in cash in advance.
If credit is approved, unless otherwise specified in the order acknowledgment, payment shall be due in thirty (30) days from the date of invoice. A FINANCE CHARGE OF 1.5% PER MONTH WILL BE ADDED TO THE UNPAID BALANCE ON ALL ACCOUNTS NOT PAID IN FULL ON OR BEFORE THE DUE DATE. THIS FINANCE CHARGE IS EQUIVALENT TO AN ANNUAL PERCENTAGE RATE OF 18%.
Accounts not paid in full according to established credit terms shall be considered in default and the customer agrees that a lien will attach upon all property in customer’s possession which was purchased on account from Southwire including all proceeds resulting therefrom.
Southwire may, at its discretion, reclaim the product under lien or take any other action that may be permitted under applicable law. In the event of default, customer shall also assign to Southwire the right to collect all accounts receivable which may have occurred to customer from the sale of said products. Customer shall furnish, upon demand by Southwire, copies of all invoices covering sales of such products so that Southwire may notify the purchaser thereof this assignment.
Credit approval is subject to revocation and/or modification upon discovery of material changes in the customer’s financial condition, previously undisclosed information, or other reasons which Southwire, in good faith, feels adversely affect the credit agreement. Stoppage or recall in transit is authorized. Upon revocation of credit, the terms of sale revert to cash in advance.
Transportation terms and charges shall be according to special terms and conditions stated in Southwire’s applicable freight policy. Southwire’s Wire and Cable Freight Policy may be located at https://www.southwire.com/freight-policy. Delivery dates specified on the order acknowledgment form are approximate only, and any reasonable variation of the delivery date shall constitute adequate performance on the part of Southwire. Southwire shall not be liable for any resulting charges, costs or damages incurred by Customer on account of delays or failure to deliver.
Southwire’s responsibility for shipping shall be limited to shipping at a competitive rate. Any excess costs for shipping, including special handling costs, will be charged to the customer, in addition to above-mentioned prices (see PRICES).
Southwire warrants that it has good title to merchandise shipped. Delivery of the merchandise shall be made F.O.B. Origin Southwire’s designated shipping point (Incoterms 2020). In addition, title and risk of loss shall pass to customer at Southwire’s shipping point.
Failure or refusal to accept delivery without just cause is considered a default by the customer on the purchase agreement. For standard products, customer is liable for damages or loss suffered by Southwire, including but not limited to, storage, shipping and restocking costs, anticipated profits and losses due to market fluctuation. In the case of default on specially designed, construed, procured, or packaged products, customer shall be liable for damages amounting to the contract price less the net salvage value of the product.
Force Majeure: Southwire shall not be liable for failure to perform hereunder as a result of any cause beyond Southwire’s reasonable control, including any failure to meet delivery terms if such failure is a result of and includes but is not limited to, accidents, machinery or equipment breakdown, strikes or labor troubles, material shortages, supply chain shortages, fires, floods, war, acts of government or military, public disturbances or riots, government allocations, acts of God, acts of terrorism, epidemics, pandemics, or quarantines or other measures taken to ensure compliance with government issued health guidelines or other circumstances beyond Southwire’s control.
6. QUANTITY TOLERANCE
Quantities shall be subject to standard industry shipping tolerances or other special terms and conditions of sale for that product. The quantity stated on invoice will be final quantity shipped.
Any shortage must be stated in writing on the carrier’s freight receipt. Customer claims for shipping shortages must be received by Southwire in writing, within thirty (30) days from date of invoice.
7. DEFERRAL OF SHIPMENT
Customer may request to defer any shipment of products for a maximum of six (6) months provided a written request for deferral is received by Southwire ninety (90) days or more prior to the scheduled shipment date and such deferral is agreed upon in writing by Southwire, in Southwire’s sole discretion. CUSTOMER WILL BE ASSESSED A 1.5% PER MONTH DEFERRAL CHARGE, TO BE BILLED MONTHLY AND UPON SHIPMENT OF ORDER MATERIAL INVOICED AT THE ORIGINAL CONTRACT PRICE. THIS DEFERRAL CHARGE IS EQUIVALENT TO AN ANNUAL PERCENTAGE RATE OF 18%.
8. NO CANCELLATION
All orders are non-cancellable and non-refundable.
Permission must be obtained in writing from Southwire before any product is returned. All returns shall be subject to Southwire’s Return Goods Authorization policies and procedures. The product must be returned to Southwire within 30 days or such permission shall be null and void. Product returned without prior written permission will be refused.
A restocking charge of 20% of the product value will be assessed for authorized returns of standard stock products in re-sellable condition. The product value is determined as either the invoiced price or the current market level, whichever is lower. Customer is responsible for return freight cost.
10. RETURNABLE REELS/RETURNABLE PROPERTY
Steel reels are often required for transportation and storage of product. Each reel will have an associated charge. Southwire will reimburse customer for the charge of the reel if reel is returned in a specified timeframe as outlined below.
(a) Reels should be returned based on terms listed on invoice.
(b) Reels should be returned in good condition. Normal wear is expected; charges are made only for “exceptional damage” (that which makes the reel unusable through abuse or unauthorized modifications) as determined by Southwire in its sole discretion.
(c) Prompt notification of reels available for return should be given to Southwire’s Steel Reel Manager at 1-866-SW-REELS, firstname.lastname@example.org, or via a Reel Pick-up Request Form found at www.southwire.com/reels-data. Notification should specify:
o Original consignee
o Date shipped
o Charge invoice number
o Serial numbers of reels to be returned
(d) No reels should be returned without prior consent from Southwire. Upon receipt of return notification, Southwire will provide customer with complete shipping instructions. Charges incurred over and above the least-cost mode of return (as determined by Southwire in its sole discretion) by unauthorized return shipment, may be charged to the customer.
11. ERROR, CONTRADICTION OF TERMS, ADJUDICATION
Southwire reserves the right to correct any clerical or stenographic error made in the preparation of orders, quotes, acknowledgments, or invoices. Corrections shall be considered as binding amendments to the aforementioned documents.
No special terms and conditions take precedence over these Terms unless specific reference is made to any conflict, waiving the requirements of these Terms. In the event any of these Terms are declared invalid by a Court of competent jurisdiction, all other terms and conditions contained herein shall remain in full force and effect.
12. LIMITED WARRANTY; DISCLAIMERS
(a) Southwire warrants that all products manufactured by Southwire will materially conform to the specifications provided by Southwire and will be free of defects in material and workmanship (“Defects”) under normal use and regular service and maintenance, and if installed pursuant to Southwire’s instructions. Southwire’s standard warranty period for the specific products purchased shall apply. Customer’s sole and exclusive remedy for Southwire’s breach of this Section 12 or a Defect found and reported within the applicable warranty period, shall be for Southwire to repair, replace or refund the purchase price for the defective product at Southwire’s sole discretion.
(b) Southwire does not warrant and shall have no obligation with respect to any products that: (i) have been repaired or altered by someone other than Southwire; (ii) have been subject to misuse, abuse, neglect, intentional misconduct, accident, customer or third party negligence, unauthorized modification or alteration, use beyond rated capacity, a force majeure event, or improper, insufficient or a lack of maintenance; (iii) are comprised of materials provided by, or designed pursuant to instructions from, customer; (iv) have failed due to ordinary wear and tear; or (v) have been exposed to adverse operating or environmental conditions.
(c) Products supplied by Southwire but manufactured or created by third parties are warranted only to the extent of the original manufacturer’s warranty and to the extent such manufacturer permits Southwire to pass any third-party warranty through to customer.
(d) Notwithstanding anything to the contrary herein, Southwire will have no liability for any (a) costs necessary to extract or uninstall the products that fail to conform to the warranties set forth herein, and/or (b) any costs to reinstall any repaired non-conforming products or new products replacing any such non-conforming products.
(e) Customer is solely responsible for determining the fitness and suitability of products for the use contemplated by customer. Customer shall ensure that (i) the products are used only for the purposes and in the manner for which they were designed, (ii) all persons likely to use or come into contact with the products receive appropriate training, (iii) all persons likely to use or come into contact with the products receive copies of applicable instructions and documentation supplied by Southwire, (iv) all third parties who use or may be affected by or rely upon the products are given full and clear warning of any hazards associated with them or limitations of their effectiveness and that safe working practices are adopted and complied with, (v) any warning notices displayed on the products are not removed or obscured, (vi) any third party to whom the products are supplied agrees not to remove or obscure such warning notices. Customer assumes all responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of products, either alone or in combination with other products or components.
(f) THE WARRANTIES SET FORTH IN THIS SECTION 12 ARE SOUTHWIRE’S SOLE AND EXCLUSIVE WARRANTIES WITH RESPECT TO PRODUCTS, AND ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AGAINST INFRINGEMENT AND/OR TITLE, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, USAGE OF TRADE, AND FITNESS FOR A PARTICULAR PURPOSE. Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to customer if prohibited by applicable law. THE REMEDIES PROVIDED IN THIS SECTION 12 ARE CUSTOMER’S SOLE REMEDIES FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED TO PRODUCTS. All warranty claims must be received by Southwire on or before the end of the applicable warranty period.
(g) WARRANTIES AND REPRESENTATIONS TO CONSUMERS WHO PURCHASE SOUTHWIRE PRODUCTS TO BE USED FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES, ARE MADE SEPARATELY AND ARE AVAILABLE UPON REQUEST.
13. RESTRICTION ON RENTALS TO END CUSTOMERS OF PRODUCTS.
Customer agrees and acknowledges that unless Southwire and customer have executed Rental Terms and Conditions, which are available upon request, customer is expressly prohibited from renting, leasing or otherwise temporarily transferring the products sold under these Terms and/or any PO entered into pursuant to these Terms. Customer is expressly prohibited from renting and/or leasing any products purchased hereunder and any violation of this restriction by customer shall void any and all warranties provided by Southwire for the products, whether express or implied. Customer is prohibited from making any representations and/or warranties regarding the products in excess of the limited warranty that is provided by Southwire. If customer makes any representation and/or warranty regarding the products in excess of the limited warranty offered by Southwire, Southwire shall not be responsible or liable for any claims or losses relating thereto.
14. CUSTOMER’S ACTS AND OMISSIONS; CUSTOMER’S COMPLIANCE WITH LAWS.
If Southwire’s performance is prevented or delayed by any act or omission of customer or its agents, subcontractors, consultants, or employees, Southwire shall not be deemed in breach of its obligations or otherwise liable for any costs, charges, or losses sustained or incurred by customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
Customer shall comply with applicable laws and regulations, including without limitation, those relating to anti-corruption, including, without limitation, (i) the United States Foreign Corrupt Practices Act (FCPA) (15 U.S.C. §§78dd-1, et. seq.) irrespective of the place of performance, and (ii) laws and regulations implementing the Organization for Economic Cooperation and Development’s Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the U.N. Convention Against Corruption, and the Inter-American Convention Against Corruption in customer’s country or any country where delivery of products will occur.
In the event that customer breaches any applicable laws or regulations, Southwire may immediately terminate these Terms and all fees due hereunder shall become immediately due and payable.
15. LIMITATION OF LIABILITY.
(a) Notwithstanding anything to the contrary in these Terms, Southwire shall not be liable for indirect, special, delay/liquidated, incidental, or consequential damages, including but not limited to, the loss of profits or revenue, loss of use of any equipment, down time costs, loss of opportunity, loss of goodwill, cost of purchased or replacement power, or claims of customers of the other party or end users for such damages.
(b) Notwithstanding anything to the contrary in these Terms, in no event shall Southwire’s aggregate liability arising out of or related to these Terms, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed one hundred percent (100%) of the total of the amount paid to Southwire for the applicable portion of the PO subject to the claim.
(a) Any designs, manufacturing drawings or other proprietary or confidential information submitted to customer (the “Southwire IP”) remain the sole and exclusive property of Southwire and no right or license, either express or implied, is granted hereunder to any Southwire IP. Customer shall not, without Southwire’s prior written consent, copy such information or disclose such information to a third party.
(b) For the purposes of these Terms, “Intellectual Property Rights” shall mean all Southwire’s and Southwire’s affiliates and subsidiaries rights in and to US and foreign (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing, (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases, (d) trade secrets, know-how, and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all registrations and applications for, and renewals and extensions of, such rights, all improvements thereto and all similar or equivalent rights or forms of protection in any part of the world.
(c) Customer shall not violate, tamper with, or interfere with the Southwire IP. Customer shall be held liable for the breach of the obligations contained hereunder.
17. DATA COLLECTION AND TREATMENT.
18. CONFIDENTIAL INFORMATION.
(a) Customer shall not disclose any Confidential Information (as such term is defined herein below) to any party without the express written consent of Southwire.
(b) For the purposes of the instant Terms, “Confidential Information” shall mean any and all information of Southwire and its affiliates and subsidiaries that is not generally available to the public, including but not limited to Intellectual Property Rights and trade secrets as defined by applicable law, as well as lists of and any information pertaining to the clients, customers, vendors, and any party with whom Southwire performs business with. Confidential Information also includes any information received by Southwire and its affiliates and subsidiaries from any person with any understanding, express or implied, that it will not be disclosed. Confidential Information does not include (a) information that is in or enters the public domain, other than through the Customer’s breach of his or her obligations under these Terms or any other agreement between the Customer and Southwire and/or its affiliates and subsidiaries; or (b) Customer’s own information.
19. CHOICE OF LAW.
CONTRACTS OF SALE AND POs ARE ACCEPTED IN THE STATE OF GEORGIA, U.S.A., AND SHALL BE INTERPRETED ACCORDING TO GEORGIA STATE LAW. EACH PARTY HEREBY (A) SUBMITS TO PERSONAL JURISDICTION IN THE STATE OF GEORGIA FOR THE ENFORCEMENT OF THESE TERMS, AND (B) WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE LAW OF ANY STATE TO OBJECT TO JURISDICTION WITHIN THE STATE OF GEORGIA, FOR THE PURPOSES OF LITIGATION TO ENFORCE THIS TERMS. THE SUPERIOR COURT OF CARROLL COUNTY, GEORGIA SHALL HAVE THE EXCLUSIVE JURISDICTION AND VENUE OVER ALL DISPUTES ARISING UNDER THESE TERMS.
20. ENTIRE AGREEMENT.
These Terms constitute the entire agreement between the parties and supersedes all other communications between the parties relating to the subject matter of these Terms. Southwire’s quotations are offers that may only be accepted in full. No conditions, usage or trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, reject, or supplement these Terms shall be binding unless made in writing and signed by both parties, expressly and specifically referencing these Terms, and no modification or objection shall be caused by Southwire’s receipt, acknowledgment, or acceptance of POs, shipping instruction forms, or other documentation containing different or additional terms to those set forth herein.