GENERAL

These Customer Terms and Conditions (these “Terms and Conditions”) shall apply to all quotations for purchase orders delivered by KBS Electrical Distributors, Inc. and accepted by KBS. KBS is not obligated to accept any purchase order. Acceptance by KBS must be in writing, with confirmed email communication by authorized parties. The terms “Goods” or “Services” whether used together or separately and wherever appearing in these Terms and Conditions mean (i) any and all products, supplies, materials, processes and/or equipment, and/or (ii) any and all services, work or labor of any kind furnished or performed by KBS, under these Terms and Conditions and any subsequent amendments, changes or modifications hereof.

PRICING, TAXATION AND PAYMENT TERMS

Prices stated on the body of any quotation or invoice do not include taxes. Rates and any quantity of hours indicated on the quote for services shall be construed only as an estimate. KBS’s acknowledged purchase order prices are firm and final for thirty (30) days from the date of the order. Goods that do not ship within thirty (30) days from the date of order may be subject to a price change due to manufacturer/supplier price increases and applied surcharges and Buyer agrees that the price of the Goods shall be the price in effect on the date Goods are shipped to Buyer. Taxes are invoiced as a separate item, unless certificates of exemption acceptable to the taxing authorities are provided by Buyer. KBS will invoice goods upon shipment. Buyer waives the right to dispute any invoiced amount unless Buyer advises KBS of the dispute (with detailed reasons) within ten (10) days of the invoice date. Buyer will pay all undisputed amounts in full, without set-off, counterclaim or withholding within thirty (30) days from the date of the invoice or such other time as approved, in writing, by KBS’s credit department. If Buyer ever becomes delinquent with its payment obligations, or if KBS believes that Buyer’s business operations cause a risk of collection, KBS may require that all purchase orders be paid on a C.O.D. basis. All past due accounts will bear interest at the rate of the lesser of: (i) fifteen percent (15%) per annum; or (ii) the maximum rate permitted by applicable law. Payment terms, imposed by third party vendors, may require advance installments or progress payments by Buyer. Upon termination or breach of any installment purchase order by such third party vendor, KBS shall have no liability or responsibility to Buyer regarding the repayment or recovery of any installation or progress payment.

TERMINATION OF ORDER OR PAYMENT TERM CHANGES

KBS reserves the right to terminate a quoted price prior to acceptance by Buyer. Further, KBS reserves the right to terminate any acknowledged purchase order, or KBS may change the terms of payment of any purchase order, if at any time prior to shipment of the order, (i) KBS deems there is a significant change in Buyer’s financial condition; (ii) there is a change in control of Buyer; (iii) there is a breach by Buyer of any purchase order or any provision in these Terms and Conditions and such breach is not cured within ten (10) days of KBS’s delivery of written notice to Buyer identifying such breach; or (iv) if any petition is filed or proceeding commenced by or against Buyer under any state or Federal law relating to bankruptcy, reorganization, receivership or assignment for the benefit of creditors. Any such termination of the quoted price, acknowledged purchase order, or change of payment terms will be without liability to KBS, and shall be effective upon delivery of written notice by KBS to Buyer.

After Buyer’s acceptance of KBS’s quotation or KBS’s acceptance of Buyer’s purchase order, the order may also be terminated by mutual written agreement of KBS and Buyer. Upon such mutual termination, KBS may levy termination charges of up to 100% of the non-cancelable goods. The termination charges may include, without limitation, the recovery costs or costs in process of KBS or KBS’s supplier incurred up to the date of the agreed termination.

SHIPMENTS

Goods will be shipped F.O.B. origin, freight prepaid, and all associated charges will be added to the invoice. Buyer guarantees payment of prepaid freight. If Buyer specifies a carrier, the goods must be picked up at the place of business of KBS or KBS’s supplier within three (3) business days of written notification by KBS that the goods are completed by KBS or KBS’s supplier. If Buyer fails to coordinate pick-up of the goods within such three (3) day period, KBS or KBS’s supplier may charge Buyer a reasonable storage fee (to be paid by Buyer upon demand). On placing goods in storage, delivery is complete and risk and title in the goods passes to Buyer. KBS has no liability or responsibility for risks of loss related to such goods after delivery.

BUYER DUTIES

Buyer must, in a timely manner, supply the information, documents and instructions KBS reasonably needs to proceed with performance of the purchase order. Buyer is responsible for the accuracy and completeness of all information it supplies. If KBS performs services at Buyer site, Buyer will not ask KBS or its personnel to enter any agreement which imposes, waives, releases, indemnifies or otherwise limits or expands any rights or obligations in respect of KBS or its personnel. Any such agreement is void. If the acts or omissions of Buyer, its personnel or other contractors delay or prevent KBS from performing its duties under the purchase order or increases KBS’s costs, time will be extended and Buyer will compensate KBS accordingly. KBS will ensure that its personnel will, while on the Buyer premises, comply with the Buyer’s reasonable site rules that are communicated in writing to KBS personnel prior to arrival and with Buyer’s reasonable instructions relating to health and safety while on site.

WARRANTY

Components Not Manufactured By KBS But Distributed By KBS

For any goods or components not manufactured by KBS, KBS extends to Buyer only that warranty which is extended by the manufacturer and to the extent assignable (such warranty to be asserted through and against such manufacturer). The components are warranted to meet the specifications of the manufacturer if they are applied and maintained according to the specifications of the manufacturer.

Exclusions

KBS MAKES NO OTHER WARRANTY OR REPRESENTATION OTHER THAN AS SET FORTH IN THESE TERMS AND CONDITIONS AND KBS EXPRESSLY DISCLAIMS ANY WARRANTY AS TO FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. IT IS FURTHER EXPRESSLY AGREED BY BUYER THAT KBS SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR LOSS OF BUSINESS FROM THE FAILURE, IN PART OR IN FULL, OF ANY GOODS ACQUIRED BY BUYER FROM KBS OR DELAY IN PERFORMANCE BY KBS. ANY CLAIM FOR BREACH OF WARRANTY MUST BE PRESENTED IN WRITING PRIOR TO ONE (1) YEAR AFTER SALE. THE SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY SHALL BE THE REPLACEMENT OF THE WARRANTED GOODS OR REFUND OF THE PURCHASE PRICE, AT THE OPTION OF KBS. EXCEPT AS SET FORTH HEREIN, KBS HAS MADE NO AFFIRMATION OF FACT, DESCRIPTION OF THE GOODS OR PROMISE THAT: (i) HAS BECOME ANY BASIS OF THE BARGAIN HEREIN; OR (ii) RELATES TO THE GOODS BEING SOLD THAT HAS CREATED OR AMOUNTED TO AN EXPRESS WARRANTY THAT THE GOODS WOULD CONFORM TO ANY SUCH AFFIRMATION OR PROMISE OR TO ANY DESCRIPTION OF THE GOODS, EXCEPT TO IDENTIFY THE GOODS TO THE CONTRACT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO BUYER. THIS WARRANTY GIVES BUYER SPECIFIC LEGAL RIGHTS, AND BUYER MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.

PERFORMANCE

KBS will not be responsible for any claims or costs, including, without limitation, late fees or penalties, levied by Buyer for delays caused by, but not limited to, strikes, lockouts, accidents, fire, delay in transportation, acts of God, embargoes, governmental action (including national, state or local orders limiting, preventing or delaying any work effort during an epidemic or pandemic) or any other causes beyond KBS’s control. All delivery periods and dates stated are approximate. KBS will not be liable for any damages caused by its failure to deliver or perform on time.

FORCE MAJEURE

Neither party will be liable for any delay or failure to perform its obligations hereunder due to any cause beyond its reasonable control and foresight, including and without limitation: manmade (sabotage, picketing or boycotts); societal (riots, terrorism); political or governmental (changes in law, acts of the government in its sovereign capacity, or even ruling regimes); market conditions (inability to obtain goods); or Acts of God (natural occurrences, hurricanes, floods, tornadoes). This includes third party actions beyond the reasonable control and without the fault or negligence of the party whose performance is affected (“Force Majeure Events”); provided that the affected party provides the other party prompt notice (within ten (10) days) of the applicable circumstance, minimizes disruptions, and uses commercially reasonable efforts to minimize any disruption and re-commence performance as promptly as possible; provided, further, that if the duration of such Force Majeure Event exceeds thirty (30) days, the other party may terminate the Purchase Order upon delivery of written notice to the affected party and cancel all or part of any order with respect to the delayed product(s) without any liability whatsoever of the other party. This Section shall supersede all other provisions of these

Terms and Conditions and each Purchase Order and shall be construed and enforced in accordance with the laws of the State of Texas and the Texas Business and Commerce Code

INDEMNIFICATION

KBS shall be held liable only for those acts or omissions resulting from the sole negligence of KBS or KBS’s employees, and Buyer shall indemnify, defend and hold harmless KBS against liability for Buyer’s sole negligence, contributory negligence, or willful misconduct. Buyer will indemnify, defend and hold harmless KBS, each of its affiliates, and each of its affiliates’ employees, officers, directors and agents (each a KBS Indemnified Party) from and against any and all liability, loss, damage, expense (including reasonable attorney’s fees and expenses) and cost that any KBS Indemnified Party may be required to pay to one or more third parties resulting from or arising out of bodily injury or death of any person as a result of use of any goods supplied or sold by KBS, except to the extent caused by the gross negligence or intentional misconduct of KBS or any KBS Indemnified Party or a breach by KBS of any of its representations, warranties or covenants set forth in these Terms and Conditions.

ALTERNATIVE DISPUTE RESOLUTION

Mediation

The parties agree to submit any claim, controversy or dispute (collectively, a “Dispute”) arising out of or relating to a purchase order or these Terms and Conditions to non-binding mediation prior to bringing such Dispute in a court or any other tribunal. The mediation shall be conducted in Bryan, Texas, through either an individual mediator or a mediator appointed by a mediation services organization or body experienced in the mediation of general business disputes, agreed upon by the parties and, failing such agreement within a reasonable period of time after a party has notified the other party of its desire to seek mediation of any Dispute (not to exceed fifteen (15) days), by the American Arbitration Association (the “AAA”) in accordance with its rules governing mediation. The costs and expenses of mediation, including compensation and expenses of the mediator (and except for the attorneys’ fees incurred by the parties), shall be borne by the parties equally.

Litigation

If the parties are unable to resolve the Dispute within forty-five (45) days after the mediator has been chosen, then, upon election and action by either party, such Dispute shall be resolved through litigation to be filed with the applicable federal or state courts located in Brazos County, Texas. The prevailing party in any such filed litigation shall be entitled to the recovery of its attorneys’ fees and costs from the losing party, in addition to any other remedies allowed under these Terms and Conditions or permitted under applicable law.

Equitable Relief

Notwithstanding the preceding, the parties acknowledge that this Alternative Dispute Resolution section shall not preclude either party from seeking equitable relief from a court of competent jurisdiction within Brazos County, Texas (i.e., for a temporary or permanent injunction, etc.) necessary to protect a party’s interests upon a breach of a purchase order or these Terms and Conditions. 

MISCELLANEOUS

All notices, requests, consents, and other communications under these Terms and Conditions shall be in writing and shall be deemed to have been delivered on the date personally delivered or the date deposited in the United States Postal Service, postage prepaid, by certified mail, return receipt requested, or electronic mail with delivery confirmed, if addressed to the respective parties at the addresses communicated by each party to the other. Either party hereto may designate a different address by providing written notice of such new address to the other party hereto.

All purchase orders and these Terms and Conditions shall be construed and enforced in accordance with and governed by the laws of the State of Texas, and an exclusive venue for any proceeding relating to the same shall be in Brazos County. The waiver by one party of a breach of any provision of a purchase order or these Terms and Conditions by the other party shall not operate or be construed as a waiver of any subsequent or continuing breach by the waiving party.

Buyer may not transfer, assign or sublicense all or any part of a purchase order or any part of these Terms and Conditions, except with the express prior written consent of KBS. All terms of a purchase order and all provisions of these Terms and Conditions shall be binding upon and inure to the benefit of the parties hereto, including any successors or permitted assigns. Compliance with Applicable Laws. All parties represent and warrant they will comply with all applicable federal, state and local laws, rules, regulations, statutes, ordinances, codes, orders and/or programs. Buyer shall assume full responsibility for exporting goods. KBS shall provide reasonable assistance to Buyer in complying with all applicable import and export laws and regulations for goods that will be exported and Buyer shall provide KBS with the export information related to the export of the goods in order for KBS to perform its reasonable due diligence to ensure its compliance with all applicable import and export laws and regulations. Notwithstanding the preceding, KBS shall have no responsibility or liability relating to or arising from the export or import of any of Buyer’s goods.

Notwithstanding the designation of a final custom developed product as a “Work for Hire”, KBS shall own and retain all rights to use any component, tool, design, process, trade secret or other know-how developed or used to create the final “Work for Hire” work product. These Terms and Conditions, together with each quotation, purchase order and acknowledgement, cancel and supersede all prior negotiations and understandings between the parties relating hereto, and embody the entire agreement and understanding between Buyer and KBS with respect to the matters covered hereby, notwithstanding the delivery of any other terms and conditions and/or similar documents or agreements by Buyer to KBS. If there is a conflict between a provision in these Terms and Conditions and a term in a purchase order, the provision in these Terms and Conditions shall govern and control. These Terms and Conditions may be amended only by an instrument in writing executed by Buyer and a duly authorized executive officer of KBS. Any additional or different terms contained within Buyer’s purchase order or acceptance of a quotation are hereby objected to, unless such terms are specifically agreed to by KBS in writing. In the event that a purchase order submitted by Buyer is characterized as an offer or counter-offer, rather than an acceptance of a quotation submitted by KBS, any acknowledgement submitted by KBS shall be conditioned on the assent of Buyer to these Terms and Conditions.