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The Terms and Conditions defined herein supplement the corresponding Purchase Order, Quote, Statement of Work, Proposal or other written specification (“Specification”) with respect to the purchase of Products and Services by “Customer” and govern all matters between Commodity Cables, Inc. (“CCI”) and the Customer with respect to this subject. The combination of the corresponding Specification and these Terms and Conditions shall define the complete “Agreement” between parties. In the event of any conflict, the terms and conditions defined in this document shall prevail. The term of this Agreement shall continue from date of submission of the Specification by CCI until Customer has made payment for all corresponding Products and Services. No terms and conditions other than the terms and conditions set forth herein, shall be binding upon CCI unless accepted by it in writing signed by a CCI agent.
II. Purchase and Payment
When Customer has requested CCI to procure products or provide services, whether by oral, telephonic, electronic, written or other means, then Customer’s acceptance of (i) any products delivered; or (ii) any services performed constitutes agreement by Customer to make full payment for any invoices presented for these products or services m accordance with the payment terms defined on the corresponding Specification (in the absence of such terms, terms are NET 2O). CCI reserves the right to invoice Customer upon and for each service rendered or product delivered, but no less frequently than monthly. Customer cannot refuse to make payment for partial delivery of services or products. Customer shall pay all charges on terms established by CCI including reasonable charges for shipping, handling and insurance on any products delivered.
If Customer fails to pay an invoice when due per the stated payment terms, Customer shall pay interest of 1.5% per mouth on the outstanding amount from the due date until the payment date. If CCI undertakes collection or enforcement efforts, Customer shall be liable for all costs thereof, including reasonable fees. If Customer is in arrears on any invoice, CCI may, on giving notice, apply any deposit thereto and withhold or cancel further performance of services or delivery of products until all arrearages are brought current.
Written notice of any disputed charge must be received by CCI within 20 days of the date of issuance of the invoice in question or Customer forfeits the right to dispute the charge. This notice must include the invoice number in dispute, the items sold, amounts disputed and a complete description of the basis for Customer withholding payment. Notice of any disputed charge does not release Customer from the obligation of paying any remaining balance of the invoice under the terms specified. Upon resolution of the disputed charge, CCI will issue a credit memo or Customer will pay the total amount outstanding referenced by the dispute. Any disputed charge resolved in CCI’s favor shall be liable to accrue late payment fees based on the terms of purchase.
Due to Manufacturers’ restrictions, CCI reserves the right to refuse a product for return. Certain items such as software, special orders including distribution orders, and discontinued products are sold “as is” and cannot be returned. Customer shall inspect any goods upon receipt and shall have a reasonable time, but in no case more than 20 days from receipt, to reject and return any goods furnished hereunder found to be defective in material or workmanship or otherwise not in conformity with the requirements of the corresponding Purchase Order. Returns, if possible, are subject to current manufacturer’s policies and require a Return Merchandise Authorization (RMA) number in advance of the return. Returns without an RMA will be refused. COD shipments will be refused. If a returned product is not defective, CCI reserves the right to assess a 10% restocking charge. Final acceptance of the return is conditional upon receipt of the product in “like new” condition with all parts, packing materials, seals and documentation intact. CCI reserves the right to refuse a return which is not in “like new” condition.
All sales, use, excise, value added, or personal property taxes; tariffs or import fees; and other governmental charges shall be paid by Customer and are Customer’s responsibility except as expressly limited by law. A valid Tax Exemption Certificate must support exception to this provision and be on file with CCI. Customer holds CCI harmless from paying such taxes and charges on Customer’s behalf.
V. Security Interest and Sellers Option
Customer hereby grants to CCI a security interest in any and all products purchased by Customer from CCI to secure all obligations of Customer to CCI, including but not limited to any obligation of payment. The security interest granted to CCI shall also cover all property of the same character as that covered by this security agreement that the Customer may later acquire at any time until the termination of this security agreement. Customer agrees that in the event of default in any payment and failure to cure same within a reasonable time, CCI shall have, in addition to its rights under the law, the right to repossess such goods without further operation of law and without notice to Customer. Customer further agrees to execute any additional documents necessary to perfect or continue the security interest created by this agreement.
CCI may, at its sole option, withhold delivery of all or any part of any order or cancel the order if at any time Customer’s account with CCI is in arrears. If at any time, Costumer is in arrears on account, CCI may then cancel this Agreement and seek redress for damages, including lost profits, offsetting any deposit there against, and further recover its costs including reasonable attorney fees.
With respect to Services performed by CCI, CCI warrants to Customer, that the Services rendered shall be performed in a skillful and professional manner commensurate with the requirements of this effort. Customer shall notify CCI in writing within thirty (30) days after completion of the services in question when any of the services fail to conform to the standard of care set forth in this Agreement. The passage of the thirty (30) day period after completion of the services without the notification described herein shall constitute Customer’s final acceptance of the Services. In the event that any of CCI’s obligations hereunder is interfered with by reason of any circumstances beyond the reasonable control of CCI, including without limitation, acts of war, terrorism, civil disobedience, severe weather or other acts of God, failures of suppliers to deliver equipment; then CCI’s sole obligation to perform services and/or provide products shall be no a best effort basis irrespective of any other written or verbal commitment to the contrary.
VII. DISCLAIMER OF WARRANTY.
With respect to particular products manufactured or supplied by third parties to CCI for resale to Customer, CCI makes no warranties of any kind in addition to or exceeding the warranty supplied or offered by the respective manufacturer or supplier, which shall be transferred or assigned to Customer, and Customer’s recovery is limited to recovery against such manufacturer or supplier for breach of any applicable warranties of manufacturer or supplier. In the event of a claim by Customer for breach of product warranty, CCI must follow the warranty policy established by the manufacturer. This policy may require return of the warranted item to the manufacturer for repair. At Customer’s request, CCI agrees to take all actions reasonably necessary or appropriate to secure Customer’s rights and to protect its interests under such third party warranties. Work performed by CCI, not covered by product warranty, will be billed to Customer at the applicable labor rates
The warranty provided by CCI is specifically limited as described herein. No other warranty, expressed or implied, including but not limited to merchantability or fitness for a particular purpose, is made and none shall be imputed or presumed.
VIII. LIMITATIONS OF LIABILITY.
In no event shall CCI be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for: loss of profits, loss of confidential or other information, business interruption, personal injury, loss of privacy, failure to meet any duty (including of good faith or of reasonable care, negligence, and any other pecuniary or other loss whatsoever) arising out of or in any way related to the provision of or failure to provide Services, even if CCI has been advised of the possibility of such damages. CCI will have no liability for or obligation to defend or indemnify customer, contractually or otherwise, for any reason. The entire liability of CCI and Customer’s exclusive remedy for all of the foregoing shall be limited to the total value of this Agreement. These limitations, exclusions and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
VII. Other Terms
The parties are and shall be independent entities and nothing in this agreement shall be deemed to cause the creation of an agency, partnership, or joint venture between the parties. No party may assign its rights or obligations under this Agreement without prior written consent of the other party.
Each party agrees that it will not hire, solicit for hire, or retain the services of either party’s employees engaging in providing support or services under this Agreement during the term of the Agreement or for a period of six (6) months thereafter without prior written agreement of both parties.
Each party agrees that they will keep confidential the terms and conditions of this Agreement provided along with all information and data specifically identified as confidential or proprietary for the tern of this Agreement and for a period of six (6) months thereafter.
Any dispute arising from this service shall be governed and ruled by the laws of the State of Georgia, County of Gwinnett. The exclusive venue for any dispute arising from or relating to these Terms and Conditions shall be the federal and state courts residing in Gwinnett County, Georgia.
This Agreement constitutes the entire agreement of the parties and supersedes all prior representations, proposals, discussions, and communications written or oral and may only be amended in writing by authorized representatives of both parties. If any provision of these terms and conditions is held to be invalid, void, or unenforceable, the remaining provisions shall nevertheless remain in full force and effect.
The provisions of this Agreement that under a commercially reasonable interpretation reveals that the parties likely would have such provisions survive termination or expiration of this Agreement shall survive to the extent necessary to fulfill the purpose of such provision. This specifically includes any obligation of Customer to make payments, maintain the confidentiality of the Agreement, and refrain from hiring or soliciting to hire employees.
Commodity Cables, Inc. • 4180 Capital View Drive • Suwanee, GA 30024
www.commoditycables.com • Phone: 770-945-5051 • Fax: 770-945-9582
This information is confidential or proprietary to CCI and may not
be disclosed without written permission