VAN METER INC. (“VMI”)

STANDARD TERMS AND CONDITIONS

Last updated January 15, 2022

EEO/VETS/M/W/DISABILITY Employer- Federal contractors, please click on the link below to review new regulations: https://www.dol.gov/agencies/ofccp/section-503

Scope and Applicability

All quotations, orders, and invoices are subject to these Standard Terms and Conditions. ANY ADDITIONAL, DIFFERENT OR CONFLICTING TERMS AND CONDITIONS ON ANY DOCUMENT, PURCHASE ORDER, NOTICE OR COMMUNICATION ISSUED BY YOU, as CUSTOMER, AT ANY TIME ARE HEREBY REJECTED BY VMI, SHALL BE WHOLLY INAPPLICABLE TO ANY SALE MADE OR SERVICE PERFORMED HEREUNDER AND SHALL NOT BE BINDING IN ANY WAY ON VMI. Any of the following shall constitute, but is not the sole form of, Customer’s acceptance of these Standard Terms and Conditions: (1) submission of a purchase order, (2) delivery of goods, or (3) commencement of services.

For goods, products and supplies purchased through the VMI website or mobile application the Van Meter Inc. Standard Terms & Conditions for Online Sales shall apply.

Quotations

A VMI quotation may be accepted by Customer in writing within thirty (30) days from its date or within the period of time otherwise stated in the quotation, whichever is less, provided however, prices quoted for wire, conduit, solar modules, and related products are valid for twenty-four (24) hours only. Verbal quotations are only valid on the calendar day on which they are given unless confirmed with a written quotation on that calendar day. A VMI quotation is an offer for Customer to buy. Customer’s acceptance of a VMI quotation is subject to these Standard Terms and Conditions. VMI is not required to accept Customer’s order. VMI reserves the right to refuse or cancel any order, even if VMI has already requested or received payment (any such payment received by VMI will be promptly returned). Any Customer purchase order shall not result in an agreement unless and until such order is accepted by VMI and acknowledged by it or its authorized representative, and such order or VMI acceptance shall be subject to these Standard Terms and Conditions. IN THE EVENT THAT CUSTOMER’S PURCHASE ORDER, ACCEPTANCE, OR OTHER WRITTEN COMMUNICATION STATES TERMS ADDITIONAL TO OR DIFFERENT FROM THESE STANDARD TERMS AND CONDITIONS, THESE STANDARD TERMS AND SHALL PREVAIL, AND THE TERMS AND CONDITIONS OF CUSTOMER’S PURCHASE ORDER, ACCEPTANCE, OR OTHER WRITTEN COMMUNICATION SHALL BE OF NO FORCE OR EFFECT.

Payment Terms

Unless otherwise stated below or on VMI’s invoice, payment shall be due within thirty (30) days from the date of VMI’s invoice. Payment for goods and/or services must be made in U.S. Dollars. Any amount payable by Customer and not paid when due shall bear interest, payable on demand, until such past-due amount is paid in full at the lower of 18.00% per annum or the highest rate allowed by law. Customer agrees to pay all fees, costs and expenses incurred by VMI in collecting amounts due, including but not limited to attorney fees and expenses whether or not an action or other formal dispute resolution proceeding is commenced. VMI reserves the right to change credit and payment terms when, in VMI’s opinion, Customer’s financial condition does not justify the making of any shipment or the provision of services on the terms specified herein. In such event, VMI may elect to make a shipment C.O.D. or on a cash in advance basis, suspend performance, or revoke its acceptance of Customer’s order. If a manufacturer requires a deposit or payment in full at the time of order placement, those same requirements will be passed on to the Customer, which requirements Customer hereby accepts. Payments by Customer shall be applied first to VMI’s accrued but unpaid costs of collection, then to accrued but unpaid interest, and then to principal and other fees, charges, and costs. Any taxes or import duties imposed by the laws of any country, dominion, state, territory, province, municipality or other authority, which VMI may be required to pay or to reimburse or remit to others by reason of the ownership, use or sale of any goods or services delivered hereunder will be added to the purchase price, either as a separate item or included in the invoice price of the goods or services, as the law may require or VMI may determine.

Shipping, Title, Risk of Loss, and Delivery

Unless otherwise stated on VMI’s quotation or VMI’s order acknowledgment form, all shipments from VMI are made F.O.B. VMI’s shipping point. Title and risk of loss shall pass to Customer upon delivery to the carrier at VMI’s shipping point or upon delivery to the carrier at the manufacturer’s shipping point if the goods are shipped directly from the manufacturer to Customer. In the absence of shipping directions from Customer and without VMI incurring any responsibility or liability, product will be shipped by the method and via carrier that VMI believes dependable. The carrier is not an agent of VMI. VMI will not be liable for any damage to goods while such goods are in transit. VMI shall have no responsibility or liability for goods shipped directly from the manufacturer.

Acceptance

Goods and services shall be inspected by Customer upon delivery and any use of the goods and/or services for purposes other than inspection or testing during this period shall be considered a complete acceptance by Customer. If the goods and/or services fail to conform in any way, the Customer shall notify VMI in writing withing three (3) days of delivery, which notice must specify which particularity the nonconformity and failing such notification the goods and/or services shall be conclusively deemed to have been accepted by customer in all respects.

Delivery Dates

Stated delivery schedules or dates are good faith estimates only and not a commitment to deliver on specific dates. Such delivery schedules or dates are approximate and are contingent on product availability, manufacturers’ estimated factory schedules, and certain other conditions prevailing at the time of placement of a quotation, receipt of an order or fulfillment of an order. VMI will attempt to ship goods or provide services within any estimated times it provides but will not be liable for any failure to do so. VMI SHALL NOT IN ANY EVENT BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR OTHERWISE, SUFFERED OR INCURRED BY CUSTOMER AS A RESULT OF ANY DELAY IN SHIPMENT, DELIVERY OR PERFORMANCE, EVEN IF VMI WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Delay in delivery of any shipment or performance of any services shall not relieve Customer of its obligations to accept and pay for such shipment, goods, or any services. VMI reserves the right to make delivery and require payment in separate installments when due, without regard to subsequent deliveries. For items on backorder, VMI may ship whenever the goods become available without notice to Customer.

Return Policy

All claims for shortages or errors must be made before Acceptance is deemed to have occurred (as provided above), must be in writing, and must specify with particularity the nonconformity. Returns require prior written authorization from VMI and are subject to the then effective Return Material Policy of VMI (including without limitation applicable restocking fees) as provided on VMI’s web site at vanmeterinc.com/return-policy, and no credit will be allowed for goods returned without prior written authorization from VMI. Special orders, custom products, and wire cuts are non-returnable and non-refundable. Goods that have been used and/or modified are non-returnable and non-refundable.

Excused Performance

Performance by VMI is excused when there is any contingency beyond the reasonable control of VMI (including but not limited to Acts of God, inability to obtain materials or energy on terms considered practical by VMI, governmental actions, legislation or labor difficulties or pandemic) which interferes with VMI’s distribution of goods or performance of services hereunder. Without limiting the generality of the foregoing, Customer acknowledges and agrees that each of the following shall be deemed to be beyond VMI’s reasonable control: strikes, lockouts, or other labor difficulties.

No Warranty

VMI (A) DOES NOT MANUFACTURE THE GOODS IT SELLS AND MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES THEREON OR WITH RESPECT THERETO AND SELLS THE GOODS AS-IS, WHERE-IS AND (B) MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES REGARDING ITS SERVICES OR THOSE OF ANY SUBCONTRACTOR AND PROVIDES ALL SUCH SERVICES AS-IS, WHERE-IS. VMI MAKES NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR CONDITION, AND HEREBY DISCLAIMS ANY AND ALL SUCH IMPLIED WARRANTIES THAT MAY ARISE BY OPERATION OF LAW OR OTHERWISE. If there is a manufacturer’s warranty with respect to goods acquired by Customer from VMI, VMI is not a party to such warranty and such warranty is between the manufacturer and the Customer although VMI will reasonably assist with Customer’s efforts to pursue a manufacturer’s warranty.

Limitation of Damages and Remedies

UNDER NO CIRCUMSTANCES WILL VMI BE LIABLE FOR ANY PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, REVENUE, BUSINESS OR OPPORTUNITY, OR ANY LOSS OCCASIONED BY DELAY IN DELIVERY) BASED ON BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED AS TO THE POSSIBILITY OF SAME. Customer’s sole remedies from VMI with respect to goods or services purchased hereunder shall be, to the extent applicable and qualifying (a) replacement of the goods purchased hereunder in compliance with, and subject to, the terms of the paragraph entitled “Return Policy” above, or (b) if allowed in VMI’s sole discretion upon return of the goods from Customer to VMI, return of so much of the purchase price as has been paid for the goods or a credit (not to exceed the purchase price paid) against the unpaid purchase price of other goods delivered or to be delivered to Customer. FURTHERMORE AND WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL VMI’S LIABILITY EXCEED THE AMOUNT ACTUALLY PAID TO VMI BY THE CUSTOMER FOR THE GOODS AND SERVICES. The foregoing is intended as a complete allocation of the risks between VMI and Customer, and Customer hereby agrees that this limitation upon remedies will not have failed of its essential purpose. The Customer’s remedies set out herein are exclusive.

Assignment by VMI

VMI may use subcontractors and/or third parties for services or goods to be provided. No quotation or any offer to sell may be assigned by Customer in whole or in part without VMI’s prior written consent. Any attempted assignment by Customer without such consent shall be void.