Standard Terms and Conditions

Print Terms and Conditions

 

  1. APPLICABILITY OF TERMS AND CONDITIONS.These Standard Terms and Conditions (“Terms”) will govern all sales of products (“Goods”) and services by Optical Cable Corporation and its subsidiaries (collectively, “OCC”), unless otherwise agreed to in writing by OCC. Terms contained in Buyer’s purchase order or any other Buyer’s document or form that are different from or in addition to these Terms are deemed to be material alterations and notice of objection to them and rejection of them is hereby given. Any such terms will not be binding on OCC unless specifically accepted and agreed to in writing by OCC. Only a director or officer of OCC shall have authority to accept and agree to any different or additional terms. Any acceptance of Buyer terms may increase pricing. Buyer will be deemed to have agreed to these Terms by Buyer’s issuance of a purchase order number or upon OCC’s issuance of a written acknowledgment of Buyer’s order. Notwithstanding the foregoing, if OCC, at Buyer’s request, commences performance in any way prior to Buyer’s receipt of OCC’s written acknowledgement, Buyer’s acceptance of these Terms will be deemed to have occurred on the date such performance commences.
    If for any reason OCC’s Quotation is deemed an acceptance of Buyer’s offer, such acceptance is expressly conditioned on Buyer’s assent to these Terms, which assent will be evidenced by the earlier of Buyer’s acceptance of Goods or any other performance by Buyer.
  2. QUOTATIONS, ORDERS, AND PRICES. OCC reserves the right to make adjustments to pricing and Goods for reasons including, but not limited to, changing market conditions, discontinuation of Goods, unavailability of Goods, manufacturer/raw material price changes, supplier price changes and/or errors in advertised or published pricing. If a quote is made prior to receipt and review by OCC of all applicable specifications and proposed contract documents, prices quoted are subject to revision once the missing documents are received. Buyer warrants that unless specifically and individually identified in writing, data provided to OCC does not contain proprietary data from Buyer or any other source. Any additions to orders already placed by Buyer will be considered as new orders. Quoted prices are only valid for 30 days unless otherwise indicated. Prices quoted are based on the purchase of all items in the quantities quoted, unless otherwise indicated. Individual cable lengths will vary unless otherwise specified at the time of quotation.
  3. CHANGE ORDERS. OCC is not obligated to modify or change any order without Buyer’s written Change Order specifying the change(s) requested, written acknowledgement and acceptance by OCC of Buyer’s written Change Order, and written acceptance by Buyer of OCC’s revised pricing and/or estimated delivery date(s), if any. OCC is not obligated to perform any additional services beyond those specifically referenced in Buyer’s Purchase Order or request documents and acknowledged by OCC in its written quotation. If OCC agrees to perform additional work as defined in Buyer’s Change Order, the price and delivery schedule shall be adjusted for the additional work commensurate with the changed requirements, the status of work in process at the time of receipt of Buyer’s Change Order and OCC’s written acknowledgement and acceptance of the Buyer’s Change Order. Generally, OCC cannot accept a proposed Change Order from Buyer after the production of the product has been scheduled by OCC.
  4. TERMINATION. Buyer may not terminate or cancel a Purchase Order, in part or complete, after Buyer’s Purchase Order is placed with OCC, unless OCC provides Buyer with explicit written consent to such termination or cancellation, which OCC is not obligated to provide. If OCC consents in writing to Buyer’s request for termination or cancellation, whether partial or complete, Buyer’s request shall be subject to payment of cancellation charges based upon status of work completed or in process for non-stocked items or custom orders, commitments made and facilities allocated. OCC will make an effort to mitigate such termination charges. OCC reserves the right to apply a minimum cancellation charge of 25% of the purchase price of the unshipped portion of the order on any orders for standard stock items Buyer cancels. Any event beyond OCC’s reasonable control shall not constitute cause for cancellation of Buyer’s Purchase Order, but shall extend OCC’s time to perform on a business-day for business-day basis for a period equal to the length of the delay. OCC shall have the right to stop work and adjust prices or schedules, or terminate the Purchase Order, without default, breach or liability, if unforeseen engineering difficulties, impossibility to perform, commercial impracticability or mistake in bid is, in the sole determination of OCC, detected after the work is begun. In the event of such termination, Buyer’s liability is limited to payment for work performed to date of termination, and termination costs to cover closure of the work as determined by OCC.
  5. TAXES. OCC’s prices do not include Federal, State or Local taxes or fees or any custom, export, import, wharfage or associated dues or duties and any such taxes or fees now in effect or hereafter levied will be in addition to such prices and are Buyer’s responsibility. Buyer agrees to defend, indemnify, and hold OCC harmless from and against any and all such taxes and fees, including without limitation, any cost, expense, attorneys’ fees, interest or penalties assessed against or incurred by OCC as a result of or in any way related to Buyer’s failure to pay any such taxes or fees..
  6. SHIPMENT, FREIGHT AND DELIVERY. All shipments are F.O.B. point of origin (Ex Works Plant) and are quoted as such. If Buyer requires different shipping arrangements / terms, or special packaging consistent with the Buyers preferred method of shipment, they must be defined in writing. OCC reserves the right to invoice for additional costs associated with any non-standard packaging or shipping methods.
  7. TITLE OF GOODS. Title of Goods shall pass to Buyer upon shipment from the OCC facility.
  8. SHIPPING ESTIMATES. Shipping estimates will date from OCC’s receipt of Buyer’s complete and final written instructions.
  9. TERMS. Terms are net thirty (30) days from date of OCC’s invoice. A service charge of one and one-half percent (1.5%) per month may be added to all past due invoices, to the extent lawfully chargeable. Notwithstanding anything herein to the contrary, any extension of credit or payment terms to Buyer is subject to approval of OCC’s Credit Department. If Buyer fails to comply with any terms of payment, OCC may withhold or terminate any further deliveries and may declare any unpaid amount to be due and owing immediately.
  10. DEVIATIONS IN AMOUNTS MANUFACTURED FOR CUSTOM CABLE ORDERS. Custom cables manufactured by OCC to meet Buyer’s instructions, specifications or requirements are subject to a plus or minus length deviation of ten percent (10%) in quantity based on the degree of customization and manufacturing yields. OCC reserves the right to ship and charge for up to 10% overage on all custom fabricated cables.
  11. ACCEPTANCE. Buyer shall notify OCC of any defect, error or shortage in Goods received by Buyer, in writing, within thirty (30) calendar days after delivery and such written notice must state the applicable OCC Order Number and must be accompanied by documents or other papers that substantiate the alleged defect, error or shortage. If Buyer fails to provide OCC with such written notice, documents or papers and the applicable OCC Order Number, all within the required time, Buyer will be deemed to have waived such defect, error or shortage and to have accepted the Goods delivered. A written Return Material Authorization (RMA) is required from OCC in order for OCC to accept returns.
  12. BUYER’S AGREEMENT TO DEFEND.If OCC manufactures or sells Goods to meet Buyer’s instructions, specifications or any other requirements and such Goods are not included among OCC’s standard catalog items offered to the trade generally in the usual course of business, Buyer agrees to defend, indemnify and hold OCC harmless from and against any and all loss, cost, damage, liability and expense (including without limitation, any penalties or punitive damages, attorneys’ fees and expenses and costs of suit) (collectively, “Costs”) arising out of the manufacture, sale, or use of such Goods, including without limitation, claims for actual or alleged infringements of any United States or foreign patent or copyright, or any actual or alleged unfair competition resulting from similarity in design, trademark or appearance.
    OCC MAY SUPPLY BUYER WITH CATALOGS, SPECIFICATIONS, INSTRUCTIONS AND RECOMMENDED INSTALLATION PROCEDURES PERTAINING TO THE GOODS SOLD TO BUYER ON OCC’S WEBSITE OR OTHERWISE. HOWEVER, BUYER SHALL BE RESPONSIBLE FOR THE PROPER TRAINING, INSTRUCTIONS AND SUPERVISION OF ITS CONTRACTORS, EMPLOYEES, AGENTS AND PURCHASERS WITH RESPECT TO THE SAFE AND PROPER INSTALLATION AND USE OF SUCH GOODS.
    If Buyer fails to use, handle or install the Goods in accordance with OCC’s catalogs, specifications, instructions and recommended installation procedures, or otherwise fails to comply with industry handling and installation best practices, or fails to take necessary steps to ensure that Buyer’s customer(s) use, handling and installation of the Goods is in accordance with OCC’s catalogs, specifications, instructions and recommended installation procedures, as well as industry use, handling, installation best practices, then Buyer agrees to defend, indemnify and hold OCC harmless from and against any and all Costs arising out of, relating to or resulting in any way from such use, handling or installation.
  13. NOTICE OF ACCIDENT OR MALFUNCTION. If Buyer learns of, or receives notice of, any accident or malfunction involving the Goods that results in personal injury or damage to property, Buyer must provide written notice of such accident or malfunction to OCC within thirty (30) calendar days of the date it learns of, or receives notice of, such accident or malfunction, and must cooperate fully with OCC in investigating and determining the cause(s) of such accident or malfunction. If Buyer fails to give such written notice within the specified time period and/or fails to so cooperate with OCC, Buyer shall be barred from any remedies against OCC (including, but not limited to, any claims for indemnity or contribution from OCC and any claims for breach of warranty by OCC) arising from or relating in any way to such accident or malfunction.
  14. TOLERANCES AND VARIATIONS. Except as specified by Buyer and agreed to in writing by OCC, the Goods being sold to Buyer will be produced in accordance with OCC’s standard practices. All Goods, including those produced to meet an exact specification, will be subject to tolerances and variations consistent with manufacturing practices in regard to dimension, weight, section, composition, mechanical and electrical properties; to normal variations in surface and internal conditions and in quality; and to deviations from tolerances and variations consistent with practical testing and inspection methods.
  15. WARRANTY AND DISCLAIMERS OF WARRANTY.
    1. GENERAL WARRANTY. OCC warrants to Buyer that the Goods supplied hereunder will be shipped free from defects in material and workmanship, and will conform to OCC’s specifications in effect at the time of shipment: (i) for standard copper connectivity products (limited to non-powered devices and passive components) for a period of fifteen years from the date of shipment by OCC; (ii) for fiber optic connectivity products and non-standard copper connectivity products for a period of twelve (12) months from the date of shipment by OCC; (iii) for fiber optic cables and copper cables for a period of twelve (12) months from the date of shipment by OCC; and (iv) for powered devices and active equipment (including Cellular Distribution Systems (“CDS”) for a period of twelve (12) months from the date of shipment by OCC. Notwithstanding the foregoing, if Goods or their component parts are subjected to abuse, misuse, misapplication, neglect, alteration, modification, accident, unauthorized repair, fire, flood, lightning strike damage and/or acts of God; are improperly or incorrectly installed or maintained; suffer any material damage (through accident or otherwise); are subjected to harsh or abnormal conditions of use, temperature, moisture, dirt or corrosive matter; are used for a purpose other than their intended purpose pursuant to the manufacturer’s instructions; are damaged by environmental conditions, electromagnetic interference (“EMI”) or radio frequency interference (“RFI”); or are subject to military or other harsh environments (beyond product specifications); then any and all warranties shall be void, and these warranties do not cover defects resulting from the foregoing conditions. Normal wear and tear and deterioration due to aging, or damage caused by environmental conditions shall not constitute a defect or failure under this warranty. Additionally, OCC makes no warranty whatsoever, and assumes no responsibility or liability, for any materials, parts, Goods or other components not manufactured by OCC. Note that E911 location information may not be provided or may be inaccurate for calls served by using OCC’s Cellular Distribution Systems, and such occurrences shall not constitute a defect or failure under this warranty. All installation and operation records for the Goods must be updated to reflect any maintenance, movements, additions or changes and such records shall be made available to OCC upon request.
    2. REPAIR OR REPLACEMENT. For all Goods found to be defective under the terms of this warranty, OCC will have the option to repair or replace defective Goods. OCC will repair and furnish replacement Goods under this warranty if (i) Optical Cable Corporation receives, within the period of the warranty applicable to the Goods as set forth above, a written statement setting forth the nature and suspected cause of the alleged deficiencies in the Goods, (ii) OCC is given reasonable opportunity to inspect the installed Goods prior to removal for return to OCC; (iii) the Goods are returned to OCC under a factory-issued Return Material Authorization (“RMA”) number, transportation prepaid, for inspection at OCC’s factory originally shipping the Goods; (iv) OCC testing and inspection disclose to the satisfaction of OCC that the Goods are defective in material or workmanship; and (v) the Goods have not been subjected to misuse, improper installation, negligence, shipping damage or use in harsh or military environments beyond their rated performance, environmental, mechanical and operational specifications or limits.
    3. EXCLUSIVITYTHE STATED WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. OCC HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EXCEPT THE WARRANTIES SET FORTH IN SUB-PARAGRAPH (a) ABOVE.
    4. REMEDIES AND LIMITATIONS ON REMEDIES. THE REMEDIES SET FORTH HEREIN SHALL BE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO BUYER, SO THAT OCC’S CREDIT OF BUYER’S ACCOUNT, REPAIR OR REPLACEMENT WILL FULFILL ALL OF OCC’S OBLIGATIONS. OCC SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS, EVEN IF OCC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE OTHERWISE FORESEEABLE. UNDER NO CIRCUMSTANCES SHALL OCC BE LIABLE FOR ANY DAMAGES BEYOND THE PRICE PAID BY THE BUYER TO OCC FOR THE GOODS PURCHASED THAT ARE RELEVANT TO OR INVOLVED IN THE CLAIM, REGARDLESS OF WHETHER THE CLAIM IS BASED ON CONTRACT, TORT, WARRANTY, STRICT LIABILITYOR OTHER THEORY OF RECOVERY.
    5. NOTICE. Buyer agrees to provide OCC with written notice of any breach of the above warranty within thirty (30) days after Buyer discovers, or should have discovered, the alleged breach. Time is of the essence herein, and Buyer’s failure to provide written notice to OCC within the required time will release and discharge OCC from any obligation or liability for that breach of warranty. The foregoing warranty extends only to the Buyer and to no other person.
    6. LIMITATION FOR COMMENCING LEGAL ACTION. Any legal action against OCC arising from or relating to any Goods sold to Buyer must be commenced within ONE (1) year after the cause of action has occurred.
  16. EXTENDED WARRANTIES AVAILABLE. Extended warranties are available for installations of certain products by OCC’s certified MDIS installers. Contact OCC for more information.
  17. DEFAULT OR DELAY. OCC will not be liable for any default or delay in the production or delivery of Goods when such default or delay results either directly or indirectly from: (a) accidents to, or breakdowns or mechanical failure of OCC’s plant machinery or equipment; strikes or other labor troubles or labor shortages; fire; flood; wars; acts of the public enemy; acts of God; delays by any supplier; delays in transportation or lack of transportation facilities; embargoes; shortages of, or reductions in, energy sources; priorities, allocations, limitations, restrictions or other acts required or requested by Federal, State or Local governments, or any subdivision, bureau or agency thereof; or (b) any other cause beyond OCC’s control. OCC SHALL NOT BE LIABLE FOR ANY LOSS, COST, PENALTY OR ANY CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES OF ANY KIND OCCASIONED BY OR ARISING OR RESULTING FROM ANY DEFAULT OR DELAY IN DELIVERY CAUSED BY ANY EVENT BEYOND OCC’S COMMERCIALLY REASONABLE CONTROL, WHETHER OR NOT SAID LOSS, COST, PENALTY OR DAMAGE WAS REASONABLY FORESEEABLE.
  18. EXCHANGES. Only unused non-obsolete standard stock items as determined by OCC, in original packaging in “as received” condition may be considered for return (at OCC’s sole option), freight prepaid, for credit. Return requests must be initiated within ninety (90) days from date of original shipment. Returns will be subject to factory inspection for resalability and quantity before credit, (solely applicable to replacement or future purchases by Buyer) is issued. OCC reserves the right to charge a stocking charge of up to 25% of the purchase price of the returned material, plus payment of original freight charges to all returns. OCC also reserves the right to require an offsetting order of equal or greater value.
  19. CERTIFICATION. OCC certifies that the Goods sold hereunder were produced in compliance with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act of 1938, as amended, and with all applicable regulations and orders issued by the Administrator of the Wage and Hour Division of the Department of Labor pursuant to Section 14 of said Act.
  20. NOTICES. Buyer consents to receiving electronic records, which may be provided via a Web browser or e-mail application connected to the Internet. Buyer may withdraw consent to receiving electronic records or to having the record provided in non-electronic form by contacting OCC. Electronic signatures (or copies of signatures sent via electronic means) are the equivalent of written and signed documents. Any notice to OCC required or permitted hereunder will be deemed to have been effectively delivered if in writing and served by personal delivery or sent by registered or certified mail with return receipt requested (or such form of mail as may be substituted therefore by postal authorities), postage prepaid, to OCC at 5290 Concourse Drive, Roanoke, Virginia 24019 and marked ATTN: Customer Service, and to Buyer at the last address on file with OCC.
  21. RELATIONSHIP. An offer to sell or acceptance of order by OCC constitutes the only relationship of Buyer and OCC and no other relationship, such as agent, distributor or broker, is expressed or implied.
  22. APPLICABLE LAW, REGULATIONS AND MISCELLANEOUS.
    1. OCC’s Quotation including these Terms and Conditions, Buyer’s Purchase Order (but not including any terms that are different from or in addition to these Terms), and OCC’s Order Acknowledgement (if given) shall constitute the contract between Buyer and OCC and shall be governed by the laws of the Commonwealth of Virginia without regard to principles of conflict of laws.
    2. OCC represents that all goods and services supplied pursuant to any Purchase Order will have been produced and supplied in compliance with all applicable federal, state and local laws, orders, rules and regulations including, but not limited to those addressing: Equal Employment Opportunity and Affirmative Action; EEO-1 Representations; VETS-100 Reporting; Forced, Indentured and/or Convict labor and Non-segregated Facilities. In accordance with FAR 4.1201, OCC representations and certifications of compliance with these and other regulations can be found at the On-Line Representations and Certifications Application (ORCA) available at https://orca.bpn.gov/, under DUNS number 106278575.
    3. If a U.S. federal government contract number appears on the face of the Purchase Order, OCC agrees to promptly review all applicable flow-down terms and conditions of the contract, and advise Buyer if any such flow-down terms and conditions cannot be accepted or complied with; or compliance would have a significant impact on any prior lead time, price or other representation previously stated by OCC via quote or formal correspondence. Except as otherwise noted, flow-down terms and conditions which are accepted by OCC shall be appended to Buyer’s Purchase Order and made a part hereof, along with any other pertinent laws, U.S. Presidential Directives, and U.S. executive orders to the extent that they apply to the subject matter of such Purchase Order. Where the U.S. Federal Acquisition Regulations (“FAR”) are referenced in these terms and conditions, the version in effect on the revision date of the Purchase Order shall be used.
    4. The failure of either party to insist upon performance of any term or condition herein or to exercise any right or privilege shall not thereafter waive the future performance of such term, condition, right or privilege or of any other terms, conditions, rights or privileges, whether of the same or similar type.
    5. Buyer may not assign its rights or obligations hereunder except with OCC’s prior written approval. These Terms shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
    6. Each provision hereof shall be severable, and in the event any provision hereof is held to be contrary to law, invalid or unenforceable, the remaining provisions shall not be affected thereby, but shall remain in full force and effect.
    7. The paragraph headings herein are solely for the convenience of and reference by the parties and do not constitute any part of these Terms.
  23. CONFIDENTIAL AND PROPRIETARY INFORMATION. 
    The respective proprietary knowledge of Buyer and OCC, as well as other confidential commercial and operational information of Buyer and OCC, including the contents of contracts and pricing, (hereinafter called “information”) shall be treated as confidential information by both Parties. Both Parties shall take all necessary measures to protect the information from unauthorized access, unauthorized release, copying, transmission or unauthorized use of the information using the same care as they would for their own confidential information. Information that is publicly available prior to or following its transmission to either party shall not be subject to these provisions.
  24. DISPUTES.
    1. Any dispute between the parties relating to the contract between the Buyer and OCC that cannot be resolved with reasonable promptness shall be referred to each party’s senior manager in attempt to obtain prompt resolution through good faith negotiation. Neither party shall commence any action against the other until the expiration of fifteen (15) business days from the date of such referral to senior managers, provided however, this shall not preclude a party from instituting an action for injunctive relief to prevent irreparable damage to such party.
    2. Buyer acknowledges that it has read these Terms and has had the opportunity to clarify these Terms with OCC, and is satisfied that the Terms reflect the intent of the parties. Accordingly, the rule of contra preferentem shall not apply to the contract formed between Buyer and OCC, and Buyer agrees and acknowledges that any ambiguity, inconsistency or conflict that remains in the contract between Buyer and OCC after its execution by both parties shall not be construed for or against either party.
  25. SECURITY INTEREST. OCC retains a security interest in all Goods and all proceeds and products thereof until all amounts due or to become due hereunder have been paid. Any repossession and removal of Goods shall be without prejudice to any of OCC’s other remedies at law or in equity. Buyer agrees, without further consideration, at any time to do or cause to be done, executed and delivered, all such further acts and instruments as OCC may reasonably request in order to perfect OCC’s security interest.
  26. EXPORT COMPLIANCE. OCC’s Goods are subject to U.S. export control laws. Buyer is solely responsible for determining export licensing requirements and obtaining any necessary license or other official authorization, and carrying out any customs formalities, prior to export of OCC’s products or products containing them. Goods will be exported from the United States only in accordance with the Export Administration and/or ITAR Regulations. Diversion by recipient of these goods contrary to U.S. law is prohibited.
  27. ENTIRE AGREEMENT. OCC’s Quotation incorporating these Terms, the Buyer’s Purchase Order (but not including any terms that are different from or in addition to these Terms), and OCC’s acknowledgement of Buyer’s Purchase Order form the Contract for the sale and purchase of engineering services and materials described in the OCC Quotation, constitute the entire agreement between OCC and Buyer with respect to the Goods or Services being purchased by Buyer pursuant to Buyer’s Purchase Order, and supersede any and all previous instruments or agreements (whether written or oral) which are hereby made null and void. Notwithstanding the foregoing, the Buyer and OCC may have executed certain Confidentiality and/or Non-Disclosure Agreements that also form a part of these Terms. In the absence of a definitive warrant or statement of limitation of authority, an Authorized Representative shall be director or officer of the party to this Agreement.