- 1. TERMS AND CONDITIONS
1. Definitions. “HESCO” shall mean Hartford Electric Supply Company (and its subsidiaries and affiliates), which is the seller of the Equipment pursuant to the proposal, purchase order or other order under which products or services are being purchased from HESCO (the “Proposal”); “Buyer” shall mean the person or entity purchasing the Equipment; and “Equipment” shall mean the products and services described in the Proposal. The “Terms and Conditions” refers to these Terms and Conditions, as they may be updated from time to time.
2. Acceptance. Acceptance of the Proposal by Buyer is expressly limited to these Terms and Conditions. Any term or condition in any Buyer purchase order or other form in conflict with the terms and conditions of the Proposal or these Terms and Conditions is expressly rejected and shall not be binding on HESCO. The Proposal may be withdrawn by HESCO at any time prior to acceptance by Buyer and will expire automatically thirty (30) days from the date hereof unless accepted by Buyer.
3. Prices. Prices are (a) subject to change without notice prior to acceptance of the Proposal by Buyer; (b) exclusive of all federal, state, municipal or other government excise, sales, occupational or like taxes; (c) subject to an increase equal in amount to any tax HESCO may be required to collect or pay upon the sale of the Equipment, provided Buyer shall not be required to pay any income tax that may be payable by or chargeable to HESCO with respect to the purchase price of the Equipment; (d) F.O.B. point of shipment; and (e) subject to change by HESCO in the event of any change in the terms and conditions of the Proposal at Buyer’s request.
4. Terms of Payment. Invoices will be issued upon shipment of the Equipment with terms as specified in the Proposal. Payments past due are subject to a charge at the lesser of the rate of 1-1/2% per month or the maximum permitted by applicable law.
5. Changes. Prior to the date of delivery of the Equipment, Buyer shall have the right to make changes in the Proposal provided that HESCO receives written notice of the desired changes and accepts the same, and provided further that Buyer accepts the additional charge therefore as determined by HESCO. If such changes affect delivery, Buyer must also accept a modification to the established schedule as deemed necessary by HESCO.
6. Excusable Delay. HESCO shall not be liable for delays in delivery due to any cause beyond its control, including acts of God, fire, strike, flood, embargo, acts of government, inability to obtain materials or defaults of suppliers or subcontractors, and in the event of any such delay the date of delivery shall be extended for a reasonable length of time not less than the period of delay, provided HESCO shall use its best efforts to minimize the effects of any such delay.
7. Shipment. The Equipment shall be F.O.B. point of shipment, and HESCO shall have the right to select the carrier unless the carrier is designated by Buyer at the time of acceptance of the Proposal. Upon delivery of the Equipment to the carrier or Buyer, whichever is earlier, the risk of loss shall be on Buyer. All carriers shall be deemed agents of Buyer.
(a) Any Equipment or part thereof manufactured or designed by HESCO which under normal operating conditions in the plant of Buyer proves defective in material or workmanship within one (1) year from the date of installation if installed by HESCO or one (1) year from the date of delivery if not installed by HESCO will be repaired or replaced by HESCO, provided that Buyer promptly gives notice of the defect and establishes that the Equipment has been properly installed in accordance with installation recommendations and maintained and operated within the limits of normal usage. All transportation expenses, as well as repair personnel travel, lodging and premium labor expenses shall be paid by Buyer.
(b) This warranty shall not extend to or obligate HESCO for defects in any item of Equipment not manufactured or designed by HESCO. With respect to materials, parts and accessories not manufactured or designed by HESCO, it will undertake to obtain for Buyer the full benefits of the manufacturer’s warranties.
(c) Any request by Buyer to return parts which are claimed to be defective must be made to HESCO in writing promptly upon discovery of the claimed defect and must include the invoice number, date of purchase of the Equipment and all product identifying information (such as serial number, revision and series, to the extent applicable). Parts may be returned only upon prior written authorization and with shipment prepaid.
(d) This warranty is of no effect if the Equipment claimed to be defective or any part or component thereof shall have been improperly repaired or altered or if the Equipment is operated or installed contrary to instructions or is subjected to misuse, negligence or accident.
(e) Any warranty claim must be addressed to HESCO in writing, set forth sufficient detail to permit identification of the defect, and be made no later than ninety (90) days after the expiration of the warranty period set forth above.
(f) THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. HESCO MAKES NO WARRANTY, EXPRESS OR IMPLIED, AND SHALL HAVE NO OBLIGATIONS OR LIABILITY, WITH RESPECT TO ANY DELIVERY, INSTALLATION, REPAIR, MAINTENANCE OR OTHER SERVICES PROVIDED BY ANY THIRD PARTY AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT TO ANY OF SUCH SERVICES. No statement, oral or written, inconsistent with this warranty shall be binding on HESCO.
9. Limitation of Liability. HESCO shall not be liable for special, incidental, indirect or consequential damages, including but not limited to loss of profit, increased expense of operation, or any other losses resulting from the Equipment, whether based upon contract, tort (including negligence), strict liability or otherwise even though HESCO may have been advised of the possibility of such damages. Notwithstanding anything herein to the contrary, HESCO’s liability with respect to any item of Equipment shall not exceed an amount equal to the purchase price. The remedies for breach of warranty contained herein shall be exclusive.
10. Property and Patent Rights.
(a) HESCO retains all rights to designs, inventions and improvements made by or for or assigned to HESCO pertaining to the Equipment and to patents, trademarks, copyrights and related property rights in connection therewith, and Buyer will not assert any rights thereto.
(b) HESCO will indemnify and hold Buyer harmless from all costs, expenses and damages resulting from any claim of infringement of a patent by reason of its use in the manner contemplated hereby of Equipment manufactured or designed by HESCO or from any suit resulting from such claim, provided that Buyer promptly notifies HESCO in writing of such claim or the institution of such suit and gives HESCO its full cooperation and grants HESCO the exclusive right to defend such suit. In the event of such claim or suit, HESCO shall have the right to modify or replace the Equipment or to remove it and refund the purchase price less 15% for each full year from the date of shipment. This paragraph shall not apply to any modifications by Buyer or at its request, any process in which the Equipment is used, any products made by Buyer, or any claims or suits related solely to materials, parts or accessories not manufactured or designed by HESCO.
11. Applicable Laws and Jurisdiction. The provisions hereof shall be governed by and construed in accordance with the laws of the State of Connecticut, excluding its rules of conflicts of law. Any proceeding hereunder shall be brought in the United States District Court for the State of Connecticut and the parties waive trial by jury in any such proceeding.
12. Security. The Proposal and these Terms and Conditions constitute a security agreement and Buyer grants HESCO a security interest in the Equipment within the meaning of the Uniform Commercial Code until the purchase price is fully paid. Buyer will execute and deliver financing statements and other documents reasonably requested by HESCO to give effect to this provision, and Buyer authorizes HESCO to sign Buyer’s name to such documents and to file such documents with appropriate governmental authorities.
13. Assignment. Except as provided in Section 14, neither party may assign any of its rights or obligations under the Proposal or these Terms and Conditions without the written consent of the other except to an affiliate of the assigning party, and any assignment with such consent or to an affiliate shall not release the assignor from its obligations in the event the assignee fails to perform.
14. Subcontracting; Supplemental Terms. Buyer acknowledges and agrees that HESCO may subcontract or delegate delivery, installation, repair, maintenance or other services relating to the Equipment to its suppliers, distributors or other providers or their affiliates or successors (“Providers”), without notice to or consent by Buyer. To the extent any such Provider delivers, installs, repairs, maintains or provides other services relating to any Equipment, all additional or supplemental terms and conditions imposed by such Provider are deemed incorporated by reference into and made a part of these Terms and Conditions, and HESCO shall have no obligation or liability to Buyer with respect to such services. Buyer further acknowledges that no such Provider has any obligation to provide delivery, installation, repair, maintenance or other services relating to the Equipment, except as expressly agreed.
15. Waiver of Terms. Failure or delay of either party to insist upon strict performance of any of the provisions hereof or to exercise any rights or remedies provided herein shall not release the other party from any of its obligations and shall not be deemed a waiver of any right of either party to insist upon strict performance hereof or to exercise any right or remedy as to any default hereunder.
16. Complete Agreement. The Proposal and these Terms and Conditions constitute the entire agreement between Buyer and HESCO, supersede all oral or written agreements or understandings between the parties relating to the subject matter hereof, and no alteration or addition shall bind HESCO unless agreed in writing by its authorized representative.