SELLER TERMS AND CONDITIONS OF SALE
The following terms and conditions are applicable to Mercom Corporation’s (“Mercom”) sale of products or services. These terms and conditions of sale are limited to those contained herein. Product sales are also subject to the manufacturer’s terms and conditions. Any additional or different terms in any forms delivered by Customer are hereby deemed to be material alterations and notice of Mercom’s rejection of such additional/different terms is hereby given.
- QUOTES. All quotes are valid for 30 days unless otherwise specified in writing on the face of the quote. Quotes are valid only for the quantities and line items specified on the face of the quote. Any alteration or variation in quantities and/or line items by the customer may alter unit pricing and are not authorized or accepted by Mercom. Any such variation requested by Customer will require a new written quote from Mercom.
- PRICING/PAYMENT. Payment terms are NET 30 days from the date of Mercom’s invoice. Prices are those stated on the quote/order. Customer agrees to make payment in full to Mercom for all amounts due according to Mercom’s invoice(s). Customer agrees to pay all collection costs incurred by Mercom for any delinquent amounts due for this purchase, including attorney’s fees and legal costs. Customer also agrees to pay Mercom, as interest, an amount equal to 1 ½% per month, or the maximum provided by law (whichever is less) for invoice amounts that are past due. Should Customer default in any such payment(s), Mercom shall have the right, without notice to Customer, to declare all invoice amounts immediately due and payable.
- CREDIT. All orders on credit are subject to credit department approval. Mercom reserves the right to decline credit to any applicant. Mercom reserves the right at any time to change or revoke Customer’s credit for any reason.
- CABLE/WIRE ORDERS: All sales of fiber optic and/or cable wire are subject to +/- 10% reel tolerance. Customer agrees to pay Mercom for the quantity actually delivered and invoiced.
- SHIPPING. Customer is responsible for all shipping costs unless otherwise noted. All sales are FOB Origin unless otherwise noted. Additional charges may apply for expedited shipments, special handling requirements and orders below a certain minimum.
- ORDER ACCEPTANCE. Acceptance is limited to the express terms contained herein and terms are subject to change by Mercom with reasonable notice to Customer. Mercom rejects any terms proposed by Customer that conflict with these terms and conditions. By issuing a purchase order to Mercom, Customer agrees to and accepts these terms and conditions of purchase. Mercom shall not be bound by the terms of any order confirmation or other form of Customer unless signed by Mercom. Any rejection of terms shall not operate as a rejection of the offer unless it contains variances in the terms of description, quantity, price or delivery schedule of goods.
- DELIVERY TIME. Mercom’s quotes may include a forecast of product availability and an estimated number of days or weeks for delivery after order receipt (DARO/WARO). Any such forecast is an estimate only and may be impacted by time between quote and order receipt. Mercom will confirm delivery date upon order receipt.
- RETURN POLICY. Products must be in saleable condition, in Mercom’s sole discretion, to qualify for return and approved for return by the manufacturer or Mercom’s distributor/vendor. “Saleable condition” is defined as those unused items in original packaging and in unbroken quantities. All returns are subject to Mercom inspection, acceptance and a 15% restocking charge. Proof of purchase is required for all returned materials. Special orders, custom products and discontinued items are not eligible for returns or credit. Dated materials are not returnable 30 days beyond date of invoice.
- DOMESTIC ORIGIN. Any non-domestic products will be so identified on shipping documents for federal government customers. All other customers may obtain such information by written request to Mercom.
- WARRANTY. Mercom warrants all goods delivered hereunder shall be of new and first quality material, of good workmanship and free from defects. Mercom further warrants that services furnished hereunder shall conform to specifications and shall be performed in a skilled and workmanlike manner. During the Warranty Period, if any, with respect to any allegedly Defective Goods or Services, (a) Customer shall notify Seller, in writing, of any alleged claim or defect within 5 Business Days from the date Customer discovers, or upon reasonable inspection should have discovered, such alleged claim or defect but in any event before the expiration of the applicable Warranty Period; (b) Customer shall give Mercom access to any Defective Goods or Systems ship for inspection and testing by Seller; (c) If Seller’s inspection and testing reveals, to Seller’s reasonable satisfaction, that such Goods are Defective, Seller shall in its sole discretion, (subject to Section, (i) repair or replace such Defective Goods, or (ii) credit or refund the Price of such Defective Goods less any applicable discounts, rebates or credits. This warranty shall not apply where the Defective Goods have been: (a) subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by Seller; (b) been reconstructed, repaired or altered by Persons other than Seller or its authorized Representative; or (c) been used with any third-party product, hardware or product that has not been previously approved in writing by Seller.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY WARRANTY OF MERCHANTABILITY; OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER PERSON ON SELLER’S BEHALF.
- INDEMNITY. Customer shall defend, indemnify and hold Mercom, its employees, agents, customers, successors and assigns, harmless from any and all liabilities (including attorney’s fees), claims, or suits arising out of Customer’s violation of any Federal, State or Local statute, regulation or ordinance. It shall be Customer’s sole responsibility to comply with all applicable laws and regulations regarding the handling, use, transportation, or disposal of products upon taking possession of same.
- REMEDIES. UNDER NO CIRCUMSTANCES SHALL MERCOM OR ITS REPRESENTATIVES BE LIABLE TO CUSTOMER FOR LOST OR ANTICIPATED PROFITS, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR ANY OTHER TYPE OF INDIRECT DAMAGES ARISING UNDER OR RELATING TO THIS ORDER WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CUSTOMER OR COULD HAVE BEEN REASONABLY FORESEEN BY CUSTOMER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. . CUSTOMER’S DAMAGES SHALL BE LIMITED TO THE LESSOR OF THE PURCHASE PRICE OF THE PRODUCTS AND/OR SERVICES OF THIS ORDER OR THE AMOUNT PAID BY CUSTOMER TO DATE ON THE ORDER.
- MODIFICATIONS. No modification to these terms and conditions shall be authorized unless in writing and agreed to by Mercom. Any such modifications shall appear on the face of the Purchase Order. Mercom Sales Representatives are not authorized to modify these terms and conditions, warrant specific applications, or execute customer documents.
DEBARMENT/SUSPENSION. Mercom certifies that it is not presently debarred or suspended from contracting with the Federal Government. Mercom certifies further that it has not been proposed for debarment from contracting with the Federal Government.