Terms and Conditions
1. Terms And Acceptance
The products ("Products") detailed on invoices of Energy Choice, Inc., a Delaware corporation ("Energy Choice"), are sold on the terms and conditions set forth on the front of the invoice and on the terms and conditions set forth herein, which terms and conditions are incorporated by reference into the invoice as though an original part thereof and, as so incorporated, constitute the entire agreement ("Agreement") between Energy Choice and the customer identified on the front of the subject invoice ("Customer"). The within terms and conditions take precedence over any Customer terms and conditions. Neither Energy Choice's commencement of performance or delivery of the Products constitutes an acceptance of Customer's terms or conditions. Any additional or conflicting terms on Customer's Purchase Order or acknowledgment are hereby rejected.
2. Payment
Payment terms are 100% payment in advance, unless Energy Choice has approved the Customer's application for trade credit. If so approved, payment terms are net 30 days from invoice date. Extension of trade credit is subject to Energy Choice's approval, which is in Energy Choice's sole and absolute discretion, and may be revoked at any time in Energy Choice's sole discretion. Orders from a Customer with accounts that are 30 days overdue will be accepted only on a payment in advance basis until credit is reestablished to Energy Choice's satisfaction. Energy Choice may cancel or delay future deliveries of Product in the event that Customer fails to make prompt payment or if, in Energy Choice's sole determination, the financial condition of Customer or other grounds for insecurity warrant such action. Customer grants to Energy Choice a purchase money security interest in all of the Products detailed on the front of the invoice delivered to Customer, and the proceeds thereof. In the event of a default, Energy Choice has all rights of a secured party under the Massachusetts Uniform Commercial Code. Energy Choice may execute and file a financing statement and other security instruments to perfect its security interest. All published prices are subject to change without notice. All payments are to be made in United States Dollars.
3. Finance Charges And Check Fees
In the event that Customer fails to make timely payment, or delivers payment by check that is ultimately returned unpaid, Energy Choice will incur additional costs, arising from servicing the account and loss of use of the amounts due, that are difficult or impossible to determine. Therefore, invoices not paid within 30 days will be subject to a monthly finance charge calculated at the periodic rate of 1.5% of the unpaid balance from time to time outstanding. All returned checks are subject to a $20.00 per check service fee.
4. Taxes
All prices for Products are exclusive of all taxes. Such taxes, if applicable, shall be wholly at the expense of Customer, and shall be added to the Customer's order subtotal, and shall be collected accordingly by Energy Choice.
5. Performance
Energy Choice will diligently proceed to fill Customer orders for Products in a timely manner, except for delays occasioned by factors that are beyond Energy Choice's control, not reasonably foreseeable, or initiated by Customer. Items not shipped are placed on back order, and will be shipped as soon as available subject to the price in effect at time of shipment. Customer must report all discrepancies in Product deliveries, shortages, or erroneous charges to Energy Choice within 10 days of receipt, otherwise the Products and amounts charged are deemed accepted. Use of the Products constitutes acceptance.
6. Shipment
Shipping/freight is F.O.B. at an Energy Choice warehouse in Massachusetts, unless otherwise indicated, plus charges for any special packaging or handling required by Customer. Risk of loss passes to Customer upon delivery to the carrier. In the absence of specific instructions, Energy Choice may select the carrier; provided, however, the carrier is not an agent of Energy Choice. All delivery dates are Energy Choice's good faith estimate thereof and are subject to change. Energy Choice shall have the right to ship all or part of the Products whenever the same shall be ready for shipment.
7. Cancellations
Cancellations of orders of Products that are not regularly stocked by Energy Choice will be subject to a restocking fee equal to 15% of the invoice price for such Products.
8. Returns
Items may be returned for credit only with Energy Choice's prior written approval. All returns are subject to a cancellation and restocking charge plus payment of all freight charges. Special order items may not be returned.
9. Defective Products
Energy Choice will, to the extent permissible, pass- through to Customer all original equipment manufacturer warranties, if any, applicable to the Products. In the event that any of the Products are defective in workmanship or material, Energy Choice will, at its election and in its sole discretion, attempt to obtain from the manufacturer thereof, in accordance with the customary practices of the manufacturer, the repair or replacement of the subject Product. However, Customer is ultimately responsible for pursuing any remedy that Customer may have with respect to the breach of any manufacturer warranty.
10. Disclaimer Of Warranty
Energy Choice is a distributor/reseller of the Products of others; therefore, all Products are sold subject solely to the warranties provided by their respective manufacturers. ENERGY CHOICE MAKES NO WARRANTY AS TO THE PRODUCTS, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ENERGY CHOICE EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ENERGY CHOICE does not guarantee or warrant the suitability of the Products for specific applications. Customer is solely responsible for determining whether the Products are appropriate for Customer's specific requirements. If any model or sample was shown to Customer, the model or sample was used merely to illustrate the general type and quality of goods and not to represent that the goods necessarily conform to the model or sample.
