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Standard Terms and Conditions for Sales

Acceptance/Governing Terms:

These terms and conditions govern all purchase orders and agreements for the sale of goods and services between Shealy Electrical Wholesalers, Inc. (“Shealy”) and its affiliated companies and subsidiaries and Shealy’s Customers. Unless otherwise specifically agreed in writing and signed by an authorized representative of Shealy, any different terms and conditions proposed by any Customer in a purchase order or otherwise are REJECTED by Shealy.

Customer shall purchase the goods and/or services from Shealy at the price quoted by Shealy. Prices and availability are subject to change without notice. All prices for goods are F.O.B. shipping point unless otherwise noted. Prices do not include any applicable federal, state or local taxes on any amounts payable by Customer.

Customer is solely responsible for ensuring the goods ordered, and quantities of goods ordered, comply with job or application specifications. Shealy is not responsible for meeting job or application specifications or quantities.

Unless otherwise agreed, Customer shall pay all invoiced amounts due to Shealy net thirty (30) days from the date of Shealy’s invoice. Payments shall not be subject to retainage of any kind. Customer shall pay interest on all late payments at the lesser rate of 1.5% per month (18% per annum) or the highest rate permissible under applicable law. Customer shall reimburse Shealy for all costs incurred in collecting late payments, including without limitation, reasonable attorney’s fees. Shealy reserves the right, to (a) withhold shipments, (b) require prepayment, and/or (c) impose or revise any credit terms or credit limits on Customer’s purchases when Shealy deems itself insecure with respect to Customer’s ability to pay for any Purchase Order.

All goods sales are F.O.B. shipping point. Shealy is not liable for delays in delivery or other failures in performance occasioned by acts of God, failure of its suppliers to ship or deliver on time, or other circumstances beyond Shealy’s reasonable control. Factory shipment or delivery dates are the best estimates of Shealy and its suppliers and are not guaranteed.

Title and risk of loss passes to Customer upon the sooner of (a) delivery of the goods to a carrier or (b) delivery of the goods at the Delivery Point. As collateral security; Customer grants to Shealy a security interest in the goods sold until such time as Customer pays to Shealy the full purchase price of the goods and any applicable late charges.

Customer shall have the right to inspect the goods before acceptance of delivery. Customer will be deemed to have accepted the goods unless it notifies Shealy in writing of any Non-conforming goods within 10 days of receipt of goods.

For all deliveries made by a carrier other than Shealy, Customer agrees that it shall make any claim for shortages, losses and apparent or concealed damages sustained in transit directly with the carrier. Shealy is not responsible for any shortages, losses or damages sustained in transit by any carrier other than Shealy.

Shealy will assign to Customer all transferable warranties made to Shealy by the manufacturers or suppliers of goods. Shealy warrants to Customer that, as of the date of delivery, Shealy has marketable title to the goods. SHEALY MAKES NO WARRANTY (AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES) WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

Shealy shall not under any circumstances be liable for special, indirect, incidental, consequential or punitive damages, such as, but not limited to, damages or loss of property or equipment, loss of profits or revenue, cost of capital, cost of purchased or replacement goods or claims of Customer or its Customers for service interruptions. Customer’s sole remedy shall be pursuant to any warranty extended by the Manufacturer. The remedy of the Customer set forth herein is exclusive, and the liability of Shealy with respect to any contract, or anything done in connection therewith, such as the performance or breach thereof, or from the sale, delivery, resale, installation or use of any goods sold, whether arising out of any theory of contract, negligence, strict liability, or under any warranty or otherwise, for any damages whatsoever, shall not exceed the price of the goods upon which such liability is based.

To the fullest extent permitted by applicable law, each of Customer and Shealy shall indemnify, defend and hold harmless the other and their respective officers, directors, employees, agents, affiliates, successors and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney’s fees, fees and the costs of enforcing any right to indemnification under these Terms and Conditions and the cost of pursuing any insurance providers, incurred by Indemnified Party, relating to, arising out of, or resulting from any claim of a third party in connection with the goods to the extent arising out of the Indemnifying Party’s negligence, willful misconduct, or breach of these Terms and Conditions or any Purchase Order or other agreement between the Parties.

In addition to any remedies that may be provided in these Terms and Conditions, Shealy may, in its sole discretion, terminate any and all Purchase Orders or other agreements or warranties, with immediate effect, upon written notice to Customer, if Customer (a) fails to pay any amount when due to Shealy and such failure continues for thirty (30) days after Customer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these Terms and Conditions or the terms of any Purchase Order, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

In addition to any remedies that may be provided by these Terms and Conditions, Customer may terminate a Purchase Order if, (a) Shealy agrees in writing to accept cancellation, (b) if Shealy materially breaches the terms of the Purchase Order or these Terms and Conditions and such breach continues for thirty (30) days after Shealy’s receipt of written notice of default from Customer.

Shealy may accept returns by Customer if, (a) Shealy has consented to such returns, (b) the returned goods are in resalable condition and are in the original manufacturer’s package, with sales receipt or invoice. Shealy will credit the Customer’s account based on the Price for the returned goods less any applicable restocking charges, freight, or other expenses of return or disposal. Factory special orders or otherwise altered to accommodate Customer are not returnable.

All notices, requests, consents, claims, demands, waivers and other communications to be given or made under a Purchase Order or these Terms and Conditions shall be in writing and delivered to each Party at its respective address specified below and will be effective upon receipt.

To Shealy:

Shealy Electrical Wholesalers, Inc.

c/o Chief Financial Officer

120 Saxe Gotha Road

West Columbia, SC 29172

 

To Customer:           Notice address and contact information specified in Purchase Order.

Customer shall not assign, transfer, delegate or subcontract any of its rights or obligations under any Purchase Order or other agreement with Shealy without the prior written consent of Shealy. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Customer of any of its obligations under a particular Purchase Order, any other agreement, or these terms and conditions.

Shealy may assign any Purchase Order or other agreement with Customer to: (a) an affiliate or subsidiary of Shealy; (b) a successor of Shealy by consolidation, merger or operation of law; (c) a Customer of all or substantially all of the assets of Shealy; or (d) a lender of Shealy as collateral.

These Terms and Conditions and any Purchase Orders or other agreements issued pursuant thereto are governed by, and construed in accordance with, the laws of the State of South Carolina, without regard to its conflict of laws provisions. Customer irrevocably and unconditionally agrees that the exclusive forum for any action, litigation or proceeding of any kind whatsoever against Shealy shall be either in Mecklenburg County, North Carolina or Lexington County, South Carolina; provided, however, if Shealy files a mechanic’s lien to protect its right to payment, Shealy may file said lien and any lawsuit to enforce it in the county in which the improved property is located. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and waives any right it may have to a trial by jury.