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TERMS AND CONDITIONS OF SALE AND CREDIT

1. Y&B’S Terms and Conditions Control the Agreement.

 

• A. These terms and conditions are incorporated into and made a part of the agreement or proposal (“Agreement”) by Y&B Lighting and Electrical Supplies, LLC and any of its related unincorporated divisions or affiliates (“Y&B”) to sell to the named Buyer the goods referenced on the face of this document as well as goods to be sold pursuant to the Credit Application, if any (“Goods”) and services (including, without limitation, any material management, assembly and kitting services, and engineering and design services (whether performed by Y&B or a subcontractor)) referenced on the face of this document as well as goods to be sold pursuant to the Credit Application, if any (“Services”). The Agreement expressly limits Buyer’s acceptance to these terms and conditions. Buyer may reject the Agreement by not ordering or receiving any Goods or Services. The Agreement does not constitute an acceptance by Y&B of any offer or counteroffer of Buyer, and Y&B hereby rejects any additional, different, or inconsistent terms, conditions or limitations contained in or incorporated by reference in any forms, purchase orders or other documents of Buyer that already have been or hereafter may be presented to Y&B with respect to the Agreement.
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  B. If Buyer has submitted or will submit additional and/or different terms and conditions to Y&B, or submit a counteroffer to Y&B, Y&B’s subsequent performance will not be construed as either acceptance of Buyer’s additional and/or different terms and conditions or Buyer’s counteroffer, nor will Y&B’s subsequent performance be viewed as a willingness to accept any provision of the Uniform Commercial Code, as adopted by any State or Commonwealth, that is contrary or in addition to any of the terms and conditions hereof.

2. Prices.

• A. Unless otherwise agreed to by Y&B in writing, Y&B’s prices for the Goods and Services will be the prices stated on the face of this document or Y&B’s standard prices for such Goods and Services as of the date hereof, provided that, where standard prices for Goods in the quantities ordered as calculated by Y&B extend beyond two decimal places, Y&B shall round such prices for Goods to the nearest two decimal places for purposes of determining Buyer’s payment obligation with respect to such Goods; provided, however, that Y&B may change the price for the Goods and Services in accordance with any change to its standard pricing for such Goods and Services prior to the date of shipment of Goods or performance of Services, as the case may be.
• B. The prices of any and all Goods and Services shall be confidential, and Buyer shall not disclose such prices to any unrelated third party. Y&B and Buyer acknowledge and agree that money damages for any and all breaches of Buyer’s obligation not to disclose the price of any Goods or Services is both incalculable and insufficient and that any such breach would irreparably harm Y&B. Therefore, in the event of an actual or prospective breach of the obligation of Buyer not to disclose the prices of any Goods and Services, Y&B shall be entitled to a permanent and/or a preliminary injunction to prevent or remedy such breach and shall have the right to specific enforcement of this Agreement against Buyer in addition to any other remedies to which Y&B may be entitled at law or in equity.

3. Specifications.

Unless Y&B has expressly agreed otherwise in writing, it is Buyer’s responsibility to ensure that the Goods and Services are the ones that it has requested and that all specifications and quantities are correct. Y&B HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES THAT GOODS AND SERVICES CONFORM TO ANY SPECIFICATIONS, DRAWINGS, DESIGNS, OR SAMPLES. .

4. Shipment of Goods; Performance of Services.

• A. Shipment of all Goods shall be made F.O.B. point of shipment (Ex Works Y&B’s facility). Buyer shall bear the risk of loss and damage to Goods after delivery to the point of shipment.
• B. Any shipping dates for Goods or performance dates for Services given in advance of actual shipment of Goods or performance of Services are Y&B’s best estimates for informational purposes only, and deliveries of Goods and performance of Services will be made subject to prior orders on file with Y&B. Unless otherwise agreed to by Y&B in writing, Y&B may, in its sole discretion, use any commercial carriers for shipment of the Goods. Y&B will use its reasonable efforts to comply with Buyer’s requests as to method and route of transportation, but Y&B reserves the right to use an alternate method or route of transportation, whether or not at a higher rate.
• C. Unless otherwise agreed to by Y&B in writing, Buyer will pay all insurance costs in connection with delivery of the Goods, if any, and be responsible for filing and pursuing claims with carriers for loss of, or damage to, Goods in transit.
• D. Buyer is responsible for obtaining at its sole cost and expense any and all necessary licenses and permits for the Goods and Services, including, without limitation, any licenses and permits for transportation.
• E. If Buyer is unable to receive the Goods when they are tendered, Buyer will be liable to Y&B for any losses, damages, or additional expenses incurred or suffered by Y&B as a result of Buyer’s inability to receive the Goods.
• F. Buyer immediately will inspect all Goods upon its receipt of them and will be deemed to accept the Goods upon receipt. Any claims for shortages or discrepancies will be waived by Buyer unless made in writing to Y&B within five days of receipt of the Goods.
• G. For wire and cable, delivery length tolerance is ± 10%. Cutting and Reel charges will apply when other than standard manufacturer lengths are requested and delivery lead-times may be adjusted.
• H. Y&B may cancel in whole or in part any order for Goods or Services under the Agreement at any time.
• I. Until Buyer has fully and finally paid all amounts owed to Y&B for any Goods, Buyer shall hold such Goods in trust for Y&B, and Y&B may repossess them if Buyer fails to pay for them in a timely fashion.

5. Payment.

• A. All payments for Goods and Services must be made in United States currency unless specified in writing by Y&B. Payments for Goods and Services will be made by such means as Y&B may specify, such as by check or wire transfer, provided that Y&B may refuse, in its sole discretion, payment by any means, including, without limitation, credit cards.
• B. Payment for Goods and Services is due within 30 days from the date of Y&B’s invoice; provided, however, that Y&B reserves the right, in its sole discretion, to require full payment in cash before order entry, shipment, or delivery.
• C. Y&B shall have the right to offset any and all amounts due and owing from Y&B to Buyer under this Agreement, including, without limitation, any chargebacks or rebates, against any amounts due and owing from Buyer to Y&B under this Agreement.
• D. If Buyer defaults in payment, Buyer will be liable for all collection costs incurred by Y&B including, but not mited to, attorneys’ and collection agency fees, and all related disbursements. 
• E. If Buyer does not pay when payment is due, past due amounts are subject to service charges of one and a half percent (1 1⁄2%) per month or the maximum percentage rate permitted by law, whichever is less.

6. Taxes.

The purchase price of the Goods and Services does not include transportation taxes and sales, use, excise, import or any similar tax or other governmental charge arising pursuant to or in connection with the sale, purchase, processing, delivery, storage, use, consumption, performance or transportation of the Goods and Services. Buyer is responsible for payment of any transportation taxes, and any present or future sales, use, excise, import or any similar tax or other governmental charge applicable to the Agreement and to the sale and/or furnishing of the Goods and Services.

7. Cancellation.

Buyer may cancel its order for Goods and/or Services, but only if Y&B agrees to such cancellation in writing and only after Buyer pays reasonable charges for expenses already incurred and commitments made by Y&B in connection with the placement of such order(s).

8. Disclaimer of Warranties.

Y&B HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN OR ORAL, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY CONTRACT, AT LAW, IN EQUITY, BY STRICT LIABILITY OR OTHERWISE, WITH RESPECT TO THE GOODS AND SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, ANY WARRANY AGAINST DEFECTS IN DESIGN, MATERIALS AND WORKMANSHIP, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY AGAINST REDHIBITORY DEFECTS, ANY WARRANTY OF GOOD TITLE, AND ANY WARRANTY AGAINST INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY PATENTS, TRADEMARKS, OR COPYRIGHTS. Y&B shall, however, if given prompt written notice by Buyer of any claim of alleged patent, trademark or copyright infringement with respect to any Goods use its reasonable efforts to secure for Buyer such indemnity rights as the manufacturer may offer with respect to such Goods.

9. Exclusive Remedy.

Buyer’s EXCLUSIVE remedy against Y&B for any claim for, or arising out of any in a Good tendered to Buyer is the repair or replacement of the Good, or alternatively, at Y&B’s sole election, a refund of the purchase price of the Good. Buyer’s EXCLUSIVE remedy against Y&B arising out of any defect in, or in connection with, any Service provided hereunder is the re-performance of that Service or, at Y&B’s sole election, a refund of the purchase price of the Service. These remedies only will only be available to Buyer for one year after the Good is tendered or Service is provided to Buyer, and Y&B’s obligations under this Section 9 will be void unless Buyer provides Y&B with notice of the defect in the Good or Service within 30 days of discovery of the defect. Any Good returned to Y&B for repair, replacement or refund under this
Section 9 will be returned by Buyer in accordance with Y&B’s return material authorization procedures then in effect, Returns for a refund may be subject to restocking fees..

10. Limitation of Liability.

NOTWITHSTANDING ANYTHING ELSE CONTAINED HEREIN TO THE CONTRARY, IN NO EVENT WILL: (A) Y&B BE LIABLE TO BUYER FOR ANY CIRCUMSTANTIAL, CONSEQUENTIAL, CONTINGENT, EXEMPLARY, INCIDENTAL, INDIRECT, LIQUIDATED, MATERIAL, PUNITIVE, SPECIAL, SPECULATIVE OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, SALES OR REVENUES, COST OF REPLACEMENT GOODS, LOST BUSINESS OR BUSINESS INTERRUPTIONS, OR ATTORNEYS FEES OR COURT COSTS ARISING IN ANY MANNER PURSUANT TO OR IN CONNECTION WITH THE AGREEMENT, THE GOODS OR THE SERVICES (EVEN IF Y&B IS MADE AWARE OF THE POTENTIAL FOR SUCH DAMAGES); AND (B) Y&B’S TOTAL LIABILITY RELATED TO ANY GOOD OR SERVICE EXCEED THE PURCHASE PRICE OF SUCH GOOD OR SERVICE.