VISIONARY ELECTRICAL SOLUTIONS, INC.
TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale apply to all products and services provided by Visionary Electrical Services, Inc., an Arizona corporation (“VES”) to the purchaser of such products and services (the “Purchaser”).
In consideration of the mutual promises and covenants set forth herein, the parties mutually agree as follows:
1. Products (the “Products”) are engineered and designed after Purchaser provides written instructions or a purchase order to VES regarding defined scope (e.g., 3rd floor units, all assemblies for the 5th floor, etc.) and specifying the delivery location and desired date of delivery. Engineering and design are performed utilizing project drawings, specifications, and any supplemental information supplied requested and received by VES (the “Project Specifications”). Purchaser orders and Project Specifications are subject to acceptance by VES in writing. Purchaser shall verify and be responsible for the Project Specifications and the Products’ fitness for their specified use. Upon submittal of the Project Specifications to VES, changes may be made prior to the commencement of design engineering by VES and/or production of ordered products. Any additional design changes directed by Purchaser, the project architect, project electrical engineer, project developer, etc. must be communicated to VES in writing and acknowledged by VES in writing; if VES has not acknowledged changes in writing then it is to be assumed that VES never received design changes from the Purchaser. Design changes may incur additional cost. If additional costs are required, then no change will be made to the defined scope until VES receives written authorization that Purchaser approves additional costs associated with scope change(s), if any. If changes are made to the Project Specifications after production has commenced then VES will take no action to incorporate said changes in its defined scope and Purchaser must provide all materials and labor for all field modifications. VES has no duty to notify Purchaser when production will or has commenced. Purchaser acknowledges and confirms that VES is not providing labor or installation services relating to the Products after delivery to the project site.
2. Purchaser may not cancel or terminate any purchase order, or any part thereof, except with the written consent of VES which may be conditioned or withheld in VES’s sole discretion and on terms acceptable to VES. Purchaser shall be responsible for the payment of all costs or fees associated with the cancellation or termination of any purchase order, including but not limited to cancellation or restocking fees. VES may terminate any pending purchase orders if Purchaser (i) is in default of the provisions of these terms of sale or payment of any sums due to VES by Purchaser; (ii) makes an assignment for the benefit of its creditors or avails itself of any rights or remedies or files any petition under any state or federal bankruptcy or debtor relief laws, (iv) is adjudged or declared bankrupt, or (iv) at any time becomes insolvent.
3. Due to the unpredictability of commodity costs, this proposal may be withdrawn by VES upon written notice to Purchaser at any time prior to the receipt of a purchase order.
4. If the project associated with this proposal is delayed by more than ninety (90) days past the purchase order date, then VES reserves the right to submit a change order for additional costs, including those associated with increased commodity costs due to market conditions. Failure of the Purchaser to approve said change order will result in the cancellation of the purchase order without penalty, liquidated damages, or any other costs to VES.
5. If the project associated with this proposal is not completed within twelve (12) months from the purchase order date, then VES reserves the right to submit a change order for additional costs, including those associated with increased commodity costs due to market conditions. Failure to approve said change order will result in the cancellation of the order without penalty, liquidated damages, or any other costs to VES. Purchaser may, at their option, “lock-in” the project cost, for a period of more than twelve (12) months but not more thirty (30) months, by paying a project cost guarantee premium equal to ten percent (10%) of the total project cost. Any project guarantee premium paid is non-refundable for any reason, including, but not limited to, project cancellation (for any reason), declining commodity costs or any event(s) that give rise to, or may form the basis of, a claim of force majeure.
6. VES shall use its commercially best efforts to provide the Products in accordance with the desired delivery date stated in the Project Specifications. Delivery dates are approximate and based upon receipt of all necessary information from Purchaser. VES shall not be responsible for delays caused by the manufacturer(s) of any components required in the Project Specifications, the shipping carrier, or any other third parties. VES reserves the right to suspend the provision of Products in the event of Force Majeure (defined below). Purchaser shall be responsible for the payment of all costs or fees associated with the Purchaser’s refusal to accept delivery of the Products. Risk of loss or damage for the Products in will pass F.O.B. point of shipment to Purchaser.
7. Base commodity costs, for copper and aluminum, as included herein, are based on the 24-hour commodity cost (http://www.kitcometals.com/charts) on the date of this proposal; Steel base commodity cost, as included herein, are based on the closing day’s cost for HRC Steel Futures Continuous Contract (https://www.marketwatch.com/investing/future/hrn00) on the date of this proposal. VES may, at its sole option and discretion, consider reducing the project cost of this project, after receipt of a purchase order if 1) any commodity cost (aluminum, copper, or steel) declines more than fifteen percent (15%), and 2) no Product has shipped for the project, and 3) at least ninety-days have passed since the purchase order date. However, VES’s declination to reduce the project cost, for any reason, shall in no way release the Purchaser from its contractual obligations to take delivery of, and pay in full for, all services and materials covered by the purchase order.
8. Prefabricated wiring device assemblies often require that wiring devices be adjusted to complete the installation for proper fit and function. The Purchaser/installation contractor is responsible for material and labor costs associated with, and required for, the adjustment of wiring devices in walls after wall finishes are applied and before finish wall plates are installed.
9. The transportation of prefabricated wiring device assemblies often results in wire connectors (push-in connectors, wire nuts, etc.) loosening due to vibration, temperature changes and other related handling issues. It is the sole responsibility of Purchaser and/or the installation contractor to visually inspect all connectors and connections, including connections made by VES at its facilities and the connections made by Purchaser’s own field installers, to ensure they have been properly installed per manufacturer’s specifications and in accordance with the N.E.C. VES will not be responsible for trouble-shooting or other functionality issues related to the proper connections of wires/conductors.
10. Products engineered or fabricated by VES that deviate from the Project Specifications will be replaced after written notification by Purchaser. Notification must occur the earlier of (1) within thirty (30) days of delivery to the project site where the Product will be installed and (2) before drywall or other wall finishes are installed. Under no circumstances will VES be responsible for labor or other remedial costs incurred by Purchaser, or by any third party, if replacements of the Products are required after drywall or other wall finishes are installed, even if VES deviated from the Project Specifications.
11. Pricing included in this proposal includes all standard freight costs for standard service from the VES facility and assumes that the receiving Purchaser can accept delivery from a commercial freight carrier utilizing a trailer not to exceed 32 feet. Additional costs will be invoiced to the Purchaser for carrier accessory charges including, but not limited to, expedited service, lift-gate, for delivery within a scheduled time window, and special equipment. Receiving Purchaser must provide necessary equipment to unload shipment without the assistance of the carrier’s driver. If the Purchaser fails to accept delivery of any shipment after they have scheduled delivery with the delivering carrier, then Purchaser will be liable for re-delivery charges levied by the carrier.
12. Purchaser shall pay all of VES’s invoices within thirty days of the invoice date unless otherwise negotiated in advance prior to VES’s acceptance of Purchaser’s order. A service charge of 1% per month, but not to exceed the highest amount allowed by applicable state law, shall be added on all sums due VES that have not been paid within thirty days from the invoice date. Purchaser represents and warrants that Purchaser is solvent and has the ability to pay its obligations as they become due. Upon VES’s request, Purchaser will furnish a written representation concerning its solvency at any time prior to shipment. If Purchaser’s financial condition at any time does not justify continuance of the work to be performed by VES in VES’s reasonable discretion, VES may require full or partial payment in advance. In the event of Purchaser’s bankruptcy or insolvency, or in the event any proceeding is brought against Purchaser, voluntary or involuntary, under any bankruptcy or insolvency laws, VES shall be entitled to cancel any order then outstanding at any time during the period allowed for filing claims against the estate, and shall receive reimbursement for its proper cancellation charges. Purchaser shall pay the gross amount of any present or future sales, use, excise, value-added or other similar tax applicable to the price, sale, or delivery of any Product furnished hereunder.
13. VES reserves the right to file mechanics liens against any work of improvement in which the Products have been incorporated if Purchaser is not in compliance with its payment obligations hereunder.
14. If VES’s performance under this Agreement is prevented, hindered, delayed, or stopped due to trade embargoes or sanctions; strikes, lockouts, labor disputes, or interference from trade unions; acts of God (such as earthquakes, floods, severe weather, or other natural disasters); industry-wide inability to obtain labor, service or materials or reasonable substitutes for those items; epidemics or pandemics; extraordinary governmental restrictions, laws, regulations, or controls; judicial orders; governmental action or inaction (including failure, refusal, or delay in issuing permits or other approvals provided that the failure, refusal, or delay is not due to the action or inaction of the claiming party); enemy or hostile governmental action; war; terrorism; riots; civil commotion; unforeseeable delays, failures, or interruptions of utility services; fire or other casualty; or any other similar causes beyond the reasonable control of the party obligated to perform the act (each, an event of “Force Majeure”), then VES’s performance will be excused for the period of the Force Majeure, and the period for performance will be extended for a period equal to the period of the Force Majeure. VES is an assembler of components and goods, and is not a manufacturer. VES’s industry is currently experiencing uncontrollable and unprecedented delays in obtaining delivery of goods from manufacturers. Any quotation of estimated delivery dates of goods is based on information provided by the manufacturer or its representatives to VES, and is not a contractual commitment by VES to Purchaser for delivery on the estimated delivery date. VES will notify Purchaser promptly of any material delay in estimated delivery dates of the Products and will specify the revised estimated delivery date as soon as practicable. VES’s performance will be extended for a period equal to the delay in VES obtaining delivery of such goods from the third parties. VES shall not be liable for damages of any nature for delays in delivery or performance, or for failure to manufacture, deliver or perform as a result of Force Majeure or delays in delivery by manufacturers, carriers, or any third parties. Financial inability to perform shall not constitute an event of Force Majeure. Nothing in this section shall operate to excuse Purchaser from the timely payment of VES’s invoices.
15. VES shall not, under any circumstances, be liable for any special, direct, indirect, incidental, exemplary, liquidated, or consequential damages to persons or property arising out of or connected with the transactions contemplated hereby or the design, manufacture, subsequent sale or use of the Products, including, but not limited to, loss of profit or revenues, loss of use of the goods, or any associated equipment, cost of capital, cost of substitute goods, facilities, service, or replacement power, down time costs, or claims of Purchaser’s customers for such damages. VES’s maximum cumulative liability relative to all other claims and liabilities, including that with respect to direct damages and obligations under any indemnity, whether or not insured, will not exceed the price of the Products giving rise to the claim of liability.
16. Purchaser releases and agrees to defend, indemnify, and hold VES, its shareholders, offices, directors, employees, and agents harmless for any claims of any nature whatsoever related to any obligation, risk, liability or responsibility which was Purchaser’s under any contract, or which was assumed by Purchaser towards any owner, contractor, construction manager, governmental entity, or other party. In addition, Purchaser shall indemnify and defend VES from any losses, liability, expenses, judgments, including reasonable attorney fees (collectively the “Claims”) that arise from the negligent acts or omissions of Purchaser, including Claims related to Purchaser’s employees, contractors, or damage to persons or property. VES shall indemnify and defend Purchaser from any Claims that arise from the sole negligence acts or omissions of VES. VES will not be responsible to defend and indemnify Purchaser to the extent such Claims arise from the negligence or willful misconduct of Purchaser. VES shall have no obligation to indemnify or defend Purchaser (i) from any Claims that do not arise out of, pertain to, or relate to the scope of VES’s provision of the Products, including those Claims that arise from the installation or use of the Products; and (ii) for defects in the construction, workmanship, materials, or functionality of any work or improvement that relate to the negligence of Purchaser or its other agents or independent contractors who are directly responsible to Purchaser. Notwithstanding anything to the contrary in this Agreement, if any Claims arise from the comparative negligence of VES and Purchaser or any other third party indemnitee, VES shall be responsible for only the proportionate share of damages resulting from claims caused by the negligent acts or omissions of VES.
17. If Purchaser has contracted with, or assumed the obligations or liabilities of any other party to an owner, contractor, construction manager, governmental entity, or any other person or entity relating to the completion of any portion of any project in which the Products will be used, Purchaser agrees that VES is not a party to such contract and that VES is not responsible for any liabilities or obligations under any such contract or Agreement.
18. Purchaser shall inspect all Products within five business days of delivery and shall notify VES of any Products that are damaged or not in conformance with the packing slip within such time. Failure of Purchaser to notify VES of any damage or non-conformance of the Products with the packing slip shall be deemed acceptance of the Products by Purchaser.
19. The Product warranty begins on the date of shipment and is limited to a period of twelve (12) months and is further defined as follows:
a. Defective materials/components: VES’s warranty and liability for defective materials and components is limited to only the provision of replacement materials or components to the project site and excludes all labor or installation costs of any kind. VES is not responsible for the installation of such replacement materials and components. If a third-party component manufacturer offers warranties longer than twelve (12) months on their products, VES will assist Purchaser with the replacement of the defective component within the manufacturer’s published warranty period. However, the final decision as to whether to provide a replacement for a defective component shall be determined solely by the component manufacturer. The manufacturer may require the return of defective materials or components; VES shall not be required to un-install or remove such defective materials or components from the Products.
b. Improper Design: If a defect is a result of improper design, then VES’s liability is limited to furnishing replacement materials or components to the project site to facilitate the proper installation as required by the Project Specifications. VES is not responsible for the installation of such replacement materials and components.
c. Incorrect Components: If the Purchaser has provided VES with approved Project Specifications that define manufacturer, type, quality, color, etc. of components and VES furnishes components that are not in compliance with the Project Specifications, VES will provide replacement materials or components to the project site but will not be responsible for the installation of such replacement materials and components. VES may consider reimbursing the Purchaser for reasonable replacement labor costs, which are limited to wages, taxes, and reasonable benefits costs for the installers. Costs associated with overtime, overhead, profit, general conditions, supervision, project management, work performed by any third-party, back-charges and other indirect costs will not be considered.
d. Freight Claims: Title to the goods transfers to Purchaser when freight is placed on a carrier’s truck (F.O.B.). Claims for lost materials, shortages or damages must be filed by the Purchaser with the transporting carrier and/or their affiliated partners. VES will assist the Purchaser with filing freight claims, and obtaining an equitable settlement from the carrier, however the final decision on whether to pay a filed claim shall rest solely with the carrier pursuant to their published terms and conditions.
The foregoing shall constitute the exclusive remedy of Purchaser and the sole obligation of VES. Except as to title, Supplier gives no warranty, express or implied, as to merchantability, fitness for any particular purpose, or otherwise.
20. Jurisdictions have varying laws, codes and regulations governing construction, installation, and/or use of goods for a particular purpose. Certain goods may not be available for sale in all areas. VES does not guarantee nor warrant compliance or suitability of the Products with any laws, codes, or regulations. VES is not responsible for the installation and/or use of the Products. It is Purchaser’s responsibility to review the Product Specifications and all applicable laws, codes, and regulations for each relevant jurisdiction to ensure that the construction, installation, and/or use of the Products are compliant with applicable law. ABSENT ADVANCE WRITTEN ACKNOWLEDGEMENT BY VES, NOTHING VES SELLS IS FOR USE IN CONNECTION WITH SAFETY-RELATED APPLICATIONS OF A NUCLEAR FACILITY OR ANY HAZARDOUS ACTIVITY WHERE FAILURE OF A SINGLE COMPONENT COULD CAUSE SUBSTANTIAL HARM TO PERSONS OR PROPERTY.
21. In order to give VES a reasonable opportunity for investigation, any claim by Purchaser against VES based wholly or in part upon, or any manner related to this Agreement and/or the Products shall be made in writing and delivered to VES within thirty days after delivery of the Products; otherwise, such claims shall be waived. Each notice of claims shall set forth fully the facts on which the claim is based. Any action based on such claim, or otherwise arising hereunder, must be commenced and prosecuted within two years after the cause of action has accrued.
22. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by binding arbitration in Maricopa County, Arizona, before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures, but discovery shall be permitted in accordance with the applicable state law. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. VES AND PURCHASER VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY DISPUTE CONCERNING THE RIGHTS, OBLIGATIONS, OR REMEDIES OF EITHER PARTY UNDER THIS AGREEMENT OR ANY LITIGATION REGARDING THIS AGREEMENT.
23. Purchaser agrees to secure performance of all sums due VES by granting a security interest in Purchaser’s assets pursuant to the terms and conditions set forth herein. The security interest shall be a first priority security interest against the Collateral. For this purpose, the term “Collateral” shall mean all assets of Purchaser, including, without limitation:
a. All accounts, contract rights, chattel paper, instruments, deposit accounts, letter of credit rights, payment intangibles and general intangibles, including all amounts due to the Purchaser from any other party.
b. All goods and inventory, including all materials, work in process and finished goods.
c. All machinery, furniture, fixtures and other equipment of every type now owned or hereafter acquired by the Purchaser.
d. All of the Purchaser's deposit accounts with any bank or lending institution.
e. All instruments, notes, chattel paper, documents, certificates of deposit, securities and investment property of every type.
f. All general intangibles.
g. All substitutes, additions, replacements or additions to any Collateral, all cash or non-cash proceeds, insurance proceeds, goods, rebates, rents and profits of any Collateral, all income, benefits, rebates and property receivable on account of the Collateral, and all proceeds from the sale, destruction, loss, or other disposition of any of the Collateral and sums due from a third party which has damaged or destroyed the Collateral or from that party's insurer, whether due to judgment, settlement or other process.
Purchaser irrevocably authorizes VES to file in any filing office in any Uniform Commercial Code jurisdiction an initial financing statement and amendment thereto that (a) indicate the Collateral (i) as all assets of Purchaser or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the Uniform Commercial Code, or (ii) as being of an equal or lesser scope or with greater detail, and (b) provide any other information required by Article 9 of the Uniform Commercial Code, for the sufficiency or filing office acceptance of any financing statement or amendment. Purchaser must furnish any such information to VES promptly upon VES’s request. VES also ratifies its authorization for VES to have filed in any Uniform Commercial Code jurisdiction any like initial financing statements or amendments thereto if filed prior to the date hereof. VES shall have the rights and remedies of a secured party under the laws of the State of Arizona, including without limitation thereto, the right to sell, lease, or otherwise dispose of any or all of the Collateral and the right to take possession of the Collateral.
24. General Terms and Conditions.
a. Attorney Fees. Should any party bring any action or arbitration against any other party related in any way to this Agreement, its validity, enforceability, scope or subject matter, the prevailing party or parties shall be awarded its or their actual attorneys’ fees and costs incurred for prosecution, defense, consultation or advice in connection with such action or arbitration. The attorneys’ fee award shall fully reimburse the prevailing party or parties for all attorneys' fees incurred in good faith and shall not be reduced below the actual amount of fees incurred for any reason, including, but not limited to, the amount of judgment sought or received, or by any court schedule for attorneys’ fees.
b. Governing Law. The laws of the State of Arizona shall govern the validity, enforcement, and interpretation of this Agreement.
c. Integration; Modification; Waiver. This Agreement constitutes the complete and final expression of the Agreement of the parties and supersedes all previous contracts, agreements and understandings of the parties, either oral or written, relating thereto. This Agreement cannot be modified except by an instrument in writing signed by both parties. Any waiver of a party’s right or remedy related to this Agreement must be in writing, signed by that party to be effective. No waiver shall be implied from a failure of either party to exercise a right or remedy. In addition, no waiver of a party’s right or remedy shall affect the other provisions of this Agreement.
d. Invalid Provisions. If any one or more of the provisions of this Agreement, or the applicability of any such provision to a specific situation, shall be held invalid or unenforceable, such provision shall be modified to the minimum extent necessary to make it or its application valid and enforceable, and the validity and enforceability of all other provisions of this Agreement and all other applications of any such provision shall not be affected thereby.
e. Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of VES and Purchaser, and their respective successors and assigns. Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent. Any attempted assignment without such written consent shall be void.
25. All notices, demands, requests and other communications required or permitted hereunder shall be in writing, and shall be deemed to be delivered when actually received (signature proof of delivery required) by personal delivery, guaranteed overnight delivery, or email followed by next day delivery by a recognized national carrier such as FedEx or UPS, addressed to the addressee at its address set forth in the purchase order. Either party may change its address for such notices by giving written notice to the other party in accordance with the terms of this section.
Version 09132023