Terms and Conditions

HUESON WIRE & CABLE

TERMS AND CONDITIONS OF SALE

  1. Application; Conflicting Terms; Contract Formation:

(a)        As used herein, “Hueson” shall mean Hueson Wire & Cable, LLC and its subsidiaries, as applicable.  Hueson offers to sell and deliver products (the “Products”) to a purchaser of such Products (a “Purchaser”) in accordance with the terms and conditions set forth herein. Purchaser’s acceptance of any offer to sell Products, or any actions indicating Purchaser’s acceptance of the Products or performance of the contract is expressly limited and subject to the terms and conditions herein, which shall apply to all offers made by Hueson and all orders accepted by Hueson (each, an “Agreement”). Hueson hereby objects to and rejects any additional or different terms proposed by Purchaser, including those contained in Purchaser’s purchase order. Fulfillment of Purchaser’s order does not constitute acceptance of any of Purchaser’s terms and conditions and does not serve to modify or amend this Agreement.  Any waiver, modification or amendment of these terms and conditions shall only be effective as against Hueson if such waiver, modification or amendment is contained in a written instrument duly executed by an authorized representative of Hueson.  These terms and conditions shall survive any termination of this Agreement.

(b)        A quotation by Hueson does not constitute an offer and Hueson reserves the right to withdraw or revise any quotation prior to the time of Hueson’s acceptance of an order from Purchaser. A contract for the sale of Products shall be formed at the time when Purchaser’s order is confirmed in writing or by means of electronic acknowledgement by Hueson, or the date Hueson releases the order for shipment, whichever occurs first.

  1. Prices:

(a)       Hueson reserves the right to revise the price, point of delivery, shipment and payment terms hereunder upon written notice to Purchaser.  Unless other pricing arrangements are set forth in Hueson’s order acknowledgement, the price applicable to any order accepted under an Agreement shall be the price in effect on the shipment date of the Products. If delivered pricing applies, Hueson reserves the right pass through to Purchaser any energy, fuel and transportation surcharges.

(b)        Purchaser shall be responsible for the payment of all freight charges and any freight charges incurred by Hueson shall be for the account of Purchaser and shall be added by Hueson as a separate item to Hueson’s invoices. Any tax, tariff, duty or charge which Hueson may be required to pay or collect, now or hereafter imposed by any governmental authority or agency, foreign or domestic, with respect to the purchase, sale, production, processing, storage, delivery, transportation, use or consumption of any Product shall be for the account of Purchaser, and any such charges may be added by Hueson as a separate line item on Hueson’s invoices.

  1. Title and Delivery:

Shipments shall be delivered Ex Works Hueson’s shipping dock (Incoterms 2020).  Hueson may deliver Products in installments. Delivery dates are estimates. Hueson shall not be liable for any damage, losses or expenses incurred by Purchaser if Hueson fails to meet the estimated delivery dates. Hueson shall deliver the Products to Purchaser using Hueson’s standard methods for packaging and shipping such Products.

  1. Inspection and Rejection of Nonconforming Products; Warranty:

(a)        Hueson’s sole and exclusive warranty is that, at the time of delivery, the Products will comply with Hueson’s standard chemical and physical specifications.  Purchaser must inspect the Products immediately upon receipt.  If Purchaser fails to immediately examine the Products upon receipt, Hueson shall not be under any liability with respect to Non-Conforming Products. Purchaser must provide written notice to Hueson of any Non-Conforming Products within five (5) business days of receipt and a detailed description of the alleged non-conformance (“Inspection Period”). Purchaser will be deemed to have accepted the Products unless it notifies Hueson in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Hueson. “Nonconforming Products” means Products that do not conform with Hueson’s standard chemical and physical specifications at the time of delivery.

(b)        If Purchaser timely notifies Hueson of any Nonconforming Products, Purchaser must return the Non-Conforming Products immediately in accordance with the procedures set forth in this Section 4(b), and Hueson shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, (ii) rectify the Products, or (iii) issue a credit up to the invoice price paid by Purchaser to Hueson for the Non-Conforming Products, and Hueson shall have no further liability for the Non-Conforming Products.  Purchaser must obtain proper written Return Merchandise Authorization (“RMA”) from Hueson’s Account Management or Customer Service team prior to returning Non-Conforming Products.  No returns will be accepted without a RMA and assigned return authorization number.  A physical sample and/or picture of the Non-Conforming Product, a picture of Hueson’s product label, and proof of purchase may be required prior to issuance of a RMA.  Purchaser must provide a detailed description of the alleged non-conformance and confirmation of the quantity of Non-Conforming Product.  Hueson reserves the right to (i) return to Purchaser, at Purchaser’s expense, returned Products that Hueson determines are not Non-Conforming Products and (ii) hold any credit to Purchaser’s account or replacement Products until the returned Products have been inspected and determined by Hueson to be Non-Conforming Products.

(c)        Hueson is not responsible for lost or damaged Products shipped by Purchaser via collect or third party carriers. Purchaser is responsible for filing a claim with the third party carrier.

(d)        Purchaser acknowledges and agrees that the remedies set forth in this Section 4 are Purchaser’s exclusive remedies for the delivery of Nonconforming Products. Except as provided under this Section 4, all sales of Products to Purchaser are made on a one-way basis and Purchaser has no right to return Products purchased under this Agreement to Hueson. Hueson shall have no liability with respect to storage, use, handling, unloading, discharge or disposal of Products or any Product container.  EXCEPT AS SET FORTH IN SECTION 4(A), PRODUCTS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” THE WARRANTIES PROVIDED IN SECTION 4(A) ARE PURCHASER’S SOLE AND EXCLUSIVE REMEDY, AND HUESON DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, OR STATUTORY, ORAL OR WRITTEN, REGARDING SUCH PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

  1. Payment Conditions:

Invoices are payable net within 30 days after the date of the invoice, unless explicitly agreed otherwise in writing. Purchaser shall not have the right to suspend, retain or set off any amounts that are due.  Upon failure of Purchaser to make any payment required, Purchaser shall owe interest for the delay at the lesser of the rate of SOFR + 4 % of the invoice currency as of the maturity date, or the maximum amount allowed by law. Under no circumstances shall Purchaser withhold any amount because of a disputed claim of any nature. Purchaser shall be liable for Hueson’s attorneys’ fees and costs incurred in any efforts or attempts to collect amounts due and owing by Purchaser to Hueson

If the Products are delivered in installments, Purchaser shall pay for each installment in accordance with the above payment terms. If Purchaser fails to make any payment when due, Hueson may suspend or cancel performance under any agreements in which Hueson has extended credit to Purchaser. Hueson’s suspension of performance may result in rescheduling delays. If, in Hueson’s judgment, Purchaser’s financial condition does not justify the payment terms specified herein, then Hueson may terminate this Agreement unless Purchaser immediately pays for all Products that have been delivered and pays in advance for all Products to be delivered. Termination in accordance with this Section shall not affect Hueson’s right to pursue any other available remedies. Hueson shall be entitled to its attorney’s fees and costs incurred in any efforts or attempts to collect amounts due and owing by Purchaser to Hueson.

  1. Taxes:

Prices are exclusive of applicable taxes or duties, including VAT. Purchaser is solely responsible for paying all applicable taxes and duties. Hueson will add sales taxes to the sales price where required by applicable law, and Purchaser will pay such taxes unless Purchaser provides Hueson with a duly executed sales tax exemption certificate. If Purchaser is required by law to withhold any amount of tax from its payment to Hueson, Purchaser shall promptly pay such amount to the appropriate tax authority and take all reasonable steps to minimize such withholding tax.

  1. Intellectual Property Rights; Indemnification:

(a)        All intellectual property, including without limitation all materials, designs, drawings, specifications, software, technical information, and technology, made or conceived by Hueson, and all intellectual property used or embodied in or in connection with the Product and any new intellectual property generated or arising or evolving as a consequence of the performance of this Agreement, is owned exclusively by Hueson, shall be treated as Confidential Information pursuant to Section 9, below, and may not be reproduced, redistributed, or resold without Hueson’s prior written permission.  Hueson retains ownership of any tooling, fixtures, equipment, software and designs used, produced or acquired by Hueson in the production of any Product.

(b)        Unless expressly agreed upon in writing by Hueson, nothing herein or in any Purchaser order shall be construed as granting, conveying or conferring any rights to Purchaser, either express or implied, (i) in any Hueson intellectual property or rights, including, but not limited to, any intellectual property rights in or to the Products; (ii) to use Hueson’s trademarks, trade names, name or logo on any marketing literature, websites, presentations, press releases or any other media form or in connection with any product, service or promotion; or (iii) to use Hueson as a reference account.

(c)        Purchaser will indemnify and hold harmless Hueson and its affiliates and representatives from any demands, losses, liabilities, claims and expenses (including attorneys’ fees) made against Hueson by a third party due to or arising out of or in connection with this Agreement.

  1. Limitations and Damages Disclaimer:

(a)        General Limitations. IN NO EVENT SHALL HUESON BE LIABLE FOR ANY SPECIAL, COLLATERAL, INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE USE OF THE PRODUCTS PROVIDED HEREUNDER, REGARDLESS OF WHETHER HUESON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COST OF REMOVAL OR REINSTALLATION, ANCILLARY COSTS TO THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, RETESTING, LABOR COSTS, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF USE, LOSS OF DATA, OR BUSINESS INTERRUPTION. NO CLAIM, SUIT OR ACTION SHALL BE BROUGHT AGAINST HUESON MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS OCCURRED.

(b)        Specific Limitations. IN NO EVENT SHALL HUESON’S AGGREGATE LIABILITY FROM ANY WARRANTY, INDEMNITY, OR OTHER OBLIGATION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR ANY USE OF ANY HUESON PRODUCT PROVIDED HEREUNDER, EXCEED THE TOTAL AMOUNT PAID TO HUESON FOR THE PARTICULAR UNITS SOLD UNDER THIS AGREEMENT WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. THE EXISTENCE OF MORE THAN ONE CLAIM AGAINST THE PARTICULAR UNITS SOLD TO PURCHASER UNDER THIS AGREEMENT SHALL NOT ENLARGE OR EXTEND THIS LIMIT.

(c)        PURCHASER UNDERSTANDS AND AGREES THAT THE FOREGOING LIABILITY LIMITATIONS ARE ESSENTIAL ELEMENTS OF THIS CONTRACT AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS OF THIS CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.

  1. Confidentiality:

(a)        “Confidential Information” means any and all: (a) information disclosed by Hueson (the “Disclosing Party”) to Purchaser (the “Receiving Party”) in connection with this Agreement, whether such disclosure is in writing, electronically, orally, or otherwise including, but not limited to, information which relates to research, concepts, product plans, products, services, customers, markets, algorithms, formulae, software, developments, inventions, technologies, processes, designs, drawings, engineering, hardware configuration information, business or contractual obligations of the Disclosing Party; and (b) documents, drawings, specifications, designs, and information created in the course of development work specifically for Purchaser.  Confidential Information shall not include any information that is: (a) publicly known or available without breach of an obligation of confidentiality; (b) already legitimately known by the Receiving Party at the time of disclosure by the Disclosing Party; (c) disclosed to the Disclosing Party by a third party without breach, and not subject to, an obligation of confidentiality; or (d) independently developed by the Receiving Party without reference to, or reliance upon, the Confidential Information.

(b)        The Receiving Party agrees to maintain the Confidential Information in confidence, to use the Confidential Information only for the purposes of this Agreement, and to protect the Confidential Information with at least the same degree of care that it protects its own confidential information of a similar nature, and in any case with no less than a reasonable standard of care.  The Receiving Party agrees that the Confidential Information shall not be decompiled, disassembled, or otherwise reverse engineered in any way by the Receiving Party, nor shall the Receiving Party use any similar means to discover its underlying composition, structure, source code or trade secrets.

(c)        Any knowledge or information that Purchaser may disclose to Hueson shall not be deemed to be Confidential Information and shall be acquired by Hueson free from any restrictions as to use or disclosure thereof, unless Hueson shall have agreed to accept Confidential Information from Purchaser pursuant to a duly executed nondisclosure agreement defining Hueson’s obligations with respect to such information.

  1. Cancellations and Rescheduling:

No cancellation or modification of any Purchaser order or rescheduling of any Product delivery may be made by Purchaser without Hueson’s prior, written approval.  Without limiting the generality of the foregoing, in addition to all other rights and remedies provided herein and at law, in the event that Purchaser amends its delivery schedule or does not purchase at the volume indicated in the purchase order, for any reason including termination as provided below in Section 11, if Hueson holds excess or obsolete inventory in reliance on such delivery schedule, Purchaser shall reimburse Hueson for any such excess items, provided that Hueson shall make reasonable commercial efforts to return unused affected parts and materials to vendors, and Purchaser shall promptly reimburse Hueson for all reasonable restocking and cancellation fees and other costs incurred by Hueson in connection with such efforts.

  1. Termination:

In addition to the other provisions of this Agreement, Hueson may, by written notice given to Purchaser, terminate this Agreement and/or the related Purchaser order if: (a) Purchaser (i) commits a material breach (including a failure to pay amounts due hereunder) of this Agreement and fails within thirty (30) days from the date of such notice (five (5) days for a failure to pay amounts due hereunder) to cure such breach, (ii) becomes insolvent, (iii) files or has filed against it a valid petition under applicable bankruptcy or insolvency laws, (iv) proposes any dissolution, composition, or financial reorganization with its creditors, or (v) makes an assignment for the benefit of creditors; or (b) a receiver, trustee, custodian, or other similar agent is appointed and takes possession of all or substantially all of Purchaser’s assets.

  1. Non-Waiver of Default:

In the event of any default by Purchaser, Hueson may, at its option, terminate this Agreement in accordance with Section 11 or suspend performance of its obligations hereunder. No failure by Hueson to enforce or exercise any of the provisions of this Agreement or any rights with respect thereto, or failure to exercise  any election provided herein shall be deemed a waiver of Hueson’s right to later enforcing or exercising the same or any other provisions, rights, or elections it may have under this Agreement.

  1. Force Majeure:

Hueson shall not be in breach of this Agreement and shall not be liable for any non-performance or delay in performance if such non-performance or delay is due to a force majeure event or other circumstances beyond Hueson’s reasonable control, including but not limited to, shortages of labor, energy, fuel, machinery or materials, technical or yield failures, war, civil unrest, any government act, law or regulation, including any judicial order or decree, any communication or power failure, labor dispute, natural disaster, fire, flood, earthquake, pandemic, epidemic, government-imposed shut-down or quarantine, explosion, terrorist act or act of God, and Hueson may, in its sole discretion, cancel, delay, reduce or modify its deliveries to Purchaser without liability for damages. In the event of a shortage of Products, Hueson may allocate, at its sole discretion, Product production and deliveries.

  1. Governing Law:

This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts, without reference to its conflict-of-laws principles. If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Products. Purchaser agrees that non-exclusive jurisdiction for any dispute arising out of or relating to this Agreement lies within courts located in the Commonwealth of Massachusetts and consents to venue in Worcester County, Massachusetts. Notwithstanding the foregoing, any judgment may be enforced in any United States or foreign court, and Hueson may seek injunctive relief in any United States or foreign court.

  1. Compliance with Laws:

Hueson and Purchaser shall comply with all applicable laws, regulations, and ordinances. Purchaser shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.

  1. User Recommendations:

Recommendations of Hueson about the use and processing of the Products are of a general nature only and do not exempt the Purchaser from its duty to carry out appropriate testing regarding the fitness of the Products for Purchaser’s particular purposes and processing conditions. Hueson does not make any warranty with regard to the fitness of the Products to Purchaser’s particular use or application and its particular conditions of processing.

  1. Production Quantity:

Purchaser agrees to accept and pay for the full production run of any Products, including any shortages or overages which shall not exceed ten percent (10%) of the originally ordered quantity, unless otherwise indicated at time of quotation.

  1. Assignment:

Purchaser shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Hueson. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Purchaser of any of its obligations under this Agreement.

  1. Relationship of the Parties:

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

  1. No Third-Party Beneficiaries:

This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

  1. Entire Agreement:

This Agreement constitutes the entire agreement between the parties relating to the sale of the Products and supersedes all previous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. No prior representations or statements relating to the sale of the Products made by any Hueson representative, which are not stated herein, shall be binding on Hueson. No addition to or modification of any provision of this Agreement shall be binding upon Hueson unless made in writing and signed by a duly authorized Hueson representative. No course of dealing or trade usage or course of performance shall be relevant to explain or supplement any term in this Agreement. This Agreement shall prevail notwithstanding any different, conflicting or additional terms and conditions that may appear on any purchase order or other writing not expressly incorporated herein. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.