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ALLIED WIRE & CABLE, INC. TERMS AND CONDITIONS OF PURCHASE
- ACCEPTANCE. The purchase order or offer to purchase (the “Order”) of Allied Wire & Cable Inc. (“Buyer”) for the goods specified therein (the “Goods”) must be promptly accepted by the party to which it is sent (“Seller”) in the manner provided herein. Buyer may modify or terminate the Order at any time prior to acceptance. The Order is expressly limited to the terms and conditions stated therein and herein (the “Terms”). By accepting or confirming the Order, Seller shall be deemed to have agreed to all of such Terms (and only such Terms), notwithstanding any different or additional terms contained in any acceptance, acknowledgement, offer or other document of any kind submitted by Seller. If not otherwise accepted, Seller shall be deemed to have accepted all of the Terms (and only such Terms) if Seller dispatches an acknowledgment, acceptance, confirmation or other document to Buyer which substantially agrees with the Terms as to the quantity, description and price of the Goods. In any event, Seller shall be deemed to have accepted all of the Terms (and only such Terms) upon Seller’s shipment of the Goods. Seller’s acknowledgment, confirmation or acceptance shall constitute an acceptance of the Terms and not a counteroffer, regardless of whether it contains terms or conditions which are additional to, different from, or conflicting with, the Terms. Seller hereby expressly objects to any terms submitted by Buyer which are additional to, different from, or conflict with, the Terms and neither the failure of Buyer to separately object to terms included in any acceptance, confirmation or other document issued by Seller nor the receipt by Buyer of any of the Goods shall be deemed an agreement by Buyer to any terms or conditions which are additional to, different from, or conflicting with the Terms. To the extent the Order is itself purported to be an acceptance or confirmation, then any such purported acceptance or confirmation is expressly made conditional upon Seller’s assent to the additional or different terms comprising the Terms. The Terms constitute the entire agreement, and (with the exception of any separately negotiated purchase or supply agreement signed by a management representative of Buyer pursuant to which this transaction is being consummated) supersedes any prior communications or agreements, between Buyer and Seller with respect to the subject matter of the Order.
- PRICE AND PAYMENT. If the price is not stated on the Order, the Goods shall be invoiced at the lower of the price last quoted to or paid by Buyer, or the prevailing market price. Seller shall be responsible for and pay all taxes. All prices are inclusive of, and Buyer will not pay any additional amount for, warranties, taxes, packing, cartage or other charges unless indicated in the Order. If payment terms are not stated in the Order, payment shall be due 60 days after the later to occur of Buyer’s acceptance of the Goods or Buyer’s receipt of a correct and properly-submitted invoice (as determined by Buyer). Invoices may not be issued and dated by Seller prior to the shipment date.
- COMPETITION. If Seller sells Goods to any other customer purchasing similar quantities as Buyer and under similar delivery terms but at a lower price than that applicable to this Order, Seller’s invoices to Buyer shall reflect that lower price on all Goods shipped under this Order while the lower price is in effect. If Buyer notifies Seller that it has been offered the Goods by a third party under similar delivery and quantity terms as stated in this Order but at a lower price, and Seller does not match the lower price within 2 business days, Buyer may, in its sole discretion, cancel the Order without incurring any liability to Seller (except for Goods shipped prior to Seller’s receipt of Buyer’s notice of cancellation).
- OFFSETS. Buyer may offset against Seller’s invoices amounts owing by Seller or any of Seller’s affiliates to Buyer or any of Buyer’s affiliates.
- TERMINATION. Buyer may terminate this Order, in whole or in part, at any time prior to shipment of the Goods. Such termination shall be without cost to Buyer except that, in the absence of a breach by Seller, Buyer will reimburse Seller for documented costs reasonably incurred by Seller pursuant to this Order prior to receiving notice of termination. Buyer’s liability on such termination shall not extend to Seller’s anticipated profits, to Seller’s indirect costs such as overhead, to the cost of inventory that is resalable or usable by Seller, or to any inventory purchased or manufactured by Seller in anticipation of future orders by Buyer; provided, however, that if this Order calls for deliveries in installments, Buyer will reimburse Seller for any non-resalable or unusable inventory which Seller purchased or manufactured in order to meet shipments under this Order for the 30 day period following Seller’s receipt of Buyer’s notice of termination. Such reimbursement obligation shall constitute Seller’s sole remedy upon such a termination. As a pre-condition of payment, Seller shall, at Buyer’s option, either ship inventory (the cost of which is being reimbursed by Buyer) FOB destination to a Buyer-designated location, or scrap it and deduct any residual value from the amount owed by Buyer hereunder. If a government agency or a third party with which Buyer has a contract terminates in whole or in part the contract for which the Goods are being supplied, and Buyer as a result terminates this Order in whole or in part, Buyer shall not be required to make any payment to Seller hereunder unless and until the government agency or third party makes a termination payment to Buyer (and such payment will be a cap on Buyer’s termination liability to Seller). This Section is in addition to and does not limit Buyer’s rights of termination or cancellation due to Seller’s breach or default or other intervening circumstances.
- DELAYS. Without limiting any other right of Buyer, Buyer reserves the right to cancel this Order in whole or in part if delivery is not made, or cannot be made, when and as specified, and to charge Seller for any loss entailed. TIME IS OF THE ESSENCE. Seller must immediately notify Buyer of any possible or actual delay in delivery.
- INSPECTION AND REJECTION. All Goods received are subject to (a) inspection by Buyer at any time, and (b) rejection by Buyer if all or any part of the Goods are defective or do not conform to Seller’s warranties or Buyer’s specifications, drawings and samples (“Defective Goods”). With prior notice Buyer may during business hours enter Seller's site(s) at which the Goods are manufactured and/or stored to inspect the Goods and audit the records relating to this Order. If Buyer receives Defective Goods, Buyer may, at its option and without waiving any other rights it might have for Seller’s breach, invoke any or all of the following non-exclusive remedies: (i) have Seller send conforming replacement Goods and retrieve the Defective Goods, all at Seller’s expense; (ii) cancel the Order and return the Defective Goods for a full refund, all at Seller’s expense; (iii) retain the Defective Goods and take a reduction in the price; or (iv) repair or correct the non-conformity or defect and deduct the cost of such repair from the price. If Buyer has received Defective Goods, Buyer may choose to reject the entire shipment or accept part of such shipment and reject the balance. Payment of any invoice by Buyer shall not by itself constitute acceptance of Goods specified therein. Buyer reserves the right to use statistical sampling to determine the overall conformance of goods received. Any goods not shipping to Buyer location must be verified in general accordance with AS9100 Rev D Section 8.4.2 Type and Extent of Control. Proof of Outbound QC Inspection must be sent with the invoice for any Drop Shipment.
- SHIPPING. Unless otherwise specified in the Order, delivery will be F.O.B. Buyer’s designated location, and title and risk of loss shall pass to Buyer at that point. Each shipment must be marked with its contents, gross, tare, and net weight. Once shipment is made, Seller must immediately provide Buyer with all information requested by Buyer to track the shipment. Seller shall comply with routing instructions provided by Buyer or, in the absence thereof, Seller shall ship via the most expeditious route in terms of time and expense.
- CHANGES - SELLER. Seller shall not make any changes to the specifications for the Goods without Buyer’s prior written consent, including without limitation changes that affect fit, form and/or function, after Buyer’s approval of any evaluation samples. Likewise, Seller shall not change its manufacturing processes for the Goods, its manufacturing locations, or its sources of supply for the Goods or any raw materials integrated into the Goods without Buyer’s prior written consent. Seller shall not discontinue the manufacture of Goods without providing at least 180 days prior written notice to Buyer. Additionally, Seller must notify Buyer of a potential risk to completion of order and communicate such risks as soon as they are identified.
- CHANGES - BUYER. Buyer may make changes to this Order at any time with prior notice to Seller, including without limitation changes in quantities ordered, specifications, method of shipment, and place of delivery. Seller will advise Buyer of the resulting costs and/or savings from specification changes, and the parties shall thereafter negotiate any resulting price change. If the Parties are unable to agree on such a price change, Buyer shall either continue with the original specifications or terminate this Order without any resulting liability.
- WARRANTIES. Seller warrants that the Goods shall: (i) be of merchantable quality and free from latent and patent defects in design, materials, manufacture and workmanship; (ii) be delivered with good and marketable title, free and clear of all liens, security interests, claims or encumbrances of any kind; (iii) conform fully with specifications, drawings and/or samples approved by Buyer; (iv) be in good condition and operating order; (v) be fit for Buyer’s intended purpose; (vi) not infringe any patent, trademark, copyright or other intellectual property right of any third parties; and (vii) have been correctly labeled, produced, shipped and sold in compliance with applicable laws. Seller will take samples, perform inspections, and issue certificates as requested by Buyer to show conformance with the specifications, all at Seller’s cost. These warranties shall survive in full force notwithstanding any inspection, testing, acceptance or payment by Buyer.
- REMEDIES. Buyer shall be entitled to recover from Seller its lost profits, cost of cover and all incidental, special or consequential damages resulting from Seller’s breach of this Order (including without limitation liquidated damages payable by Buyer to third parties). If Defective Goods have been used by Buyer to create work-in-process or finished goods, and such items must be scrapped, Seller shall also be responsible to Buyer for Buyer’s costs to scrap the items, including the cost of all materials scrapped in the process.
- EQUIPMENT. If Seller uses Buyer’s machinery, tools, dies, casts and/or equipment (collectively, “Buyer’s Equipment”) in the performance of Seller’s obligations under this Order, Buyer’s Equipment shall be considered as being under the sole custody and control of Seller and Seller shall be responsible for any destruction, loss or damage to Buyer’s Equipment. On Buyer’s request, Seller will promptly and at its sole cost return all of Buyer’s Equipment to Buyer in its original state of title and condition, reasonable wear and tear excepted. SELLER WAIVES ANY EXPRESS OR IMPLIED WARRANTY AS TO THE BUYER’S EQUIPMENT, INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Buyer is not a “merchant” of Buyer’s Equipment under UCC Section 2-104(1).
- INDEMNITY. Seller will indemnify, defend, and hold Buyer, its affiliates, its customers and all of their respective officers, partners, members, directors, employees, and agents harmless from and against any claim, liability, loss, damage, lien, judgment and cost, including reasonable attorneys’ fees and litigation expenses, with respect to or directly or indirectly arising out of Seller’s delivery of Defective Goods, Seller’s breach of its warranties, Seller’s use of Buyer’s Equipment, or Seller’s breach or failure to perform any of its obligations under this Order, including without limitation claims for personal injury, death or property damage, as well as any resulting product liability claims, product recalls or other reasonable action Buyer takes regarding consumer and/or public safety.
- LIMITATION OF BUYER'S LIABILITY. IN NO EVENT WILL BUYER BE LIABLE TO SELLER FOR ANY AMOUNT IN EXCESS OF THE PRICE ALLOCABLE TO THE GOODS, OR FOR LOST PROFITS, SPECIAL, PUNITIVE, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED AND WHETHER ARISING IN AN ACTION OF CONTRACT, TORT OR OTHER LEGAL THEORY, EVEN IF BUYER WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY THEREOF.
- INSURANCE. Seller will maintain insurance, including without limitation, products liability, general commercial liability, public liability and workers compensation insurance, providing commercially reasonable coverage to support its obligations under this Order. Seller shall name Buyer as an additional insured under such policies and, upon Buyer’s request, furnish Buyer with proof of such insurance.
- COMPLIANCE WITH LAWS. Seller is solely responsible for the safe performance of all work under this Order and for the safety of its employees, contractors, and invitees. Seller will comply with all laws and regulations applicable to its business and its performance under this Order, including without limitation those relating to employment practices, the environment, and occupational safety and health. Seller certifies that the Goods comply with the Fair Labor Standards Act, as amended, as well as the regulations and orders of the U.S. Department of Labor.
- NON-DISCRIMINATION STATEMENT / GOVERNMENT CONTRACTS. Buyer is a covered government contractor / subcontractor subject to the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended by the Jobs for Veterans Act of 2002, 38 U.S.C. § 4212 (VEVRAA), which requires government contractors / subcontractors to take affirmative action to employ and advance in employment: (1) disabled veterans; (2) recently separated veterans; (3) active duty wartime or campaign badge veterans; and (4) Armed Forces Service Medal veterans. Buyer does not and shall not discriminate on the basis of race, color, religion (creed), gender, gender expression, age, national origin (ancestry), disability, marital status, sexual orientation, or military status, in any of its activities or operations. These activities include, but are not limited to, hiring and firing of staff, selection of vendors, manufacturing, sale and purchase of goods, and provision of services. Buyer is an equal opportunity employer, and will not discriminate, and will take affirmative action measures to ensure against discrimination, in employment, recruitment, advertisements for employment, compensation, termination, upgrading, promotions, and other conditions of employment against any employee or job applicant on the bases of race, color, gender, national origin, age, religion, creed, disability, veteran’s status, sexual orientation, gender identity or gender expression. Seller, shall, at all times pertinent to this Order, conduct itself in a manner cognizant of, and in compliance with, the foregoing. To the extent applicable for contracts let by any Federal agency, Seller and its subcontractors and/or sub-suppliers (if permitted), in performance under this Order, shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a), and 60-741.5 (a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. These regulations further require that Seller and its subcontractors and/or sub-suppliers (if permitted) take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status, or disability. Further, if Buyer notifies Seller that the Goods are to be used by Buyer in performance of a government contract, Seller shall comply with all laws and regulations applicable to it by virtue of such government contract, and, if this Order is under or in furtherance of a Federal government contract, the parties hereby incorporate the requirements of, 60-250.5(a), 29 CFR § 470, and 48 CFR § 52.244-6 (for commercial items), if applicable. If this Order is for a non-commercial item as defined in 48 CFR 2.101, those provisions that are in the prime contract that are otherwise required to flow down to a subcontractor shall be incorporated herein.
- FORCE MAJEURE. If Seller is unable to perform its obligations under this Order, either in whole or in part, as a result of civil or military authority, war, flood, fire, epidemic, or other unforeseen event beyond its reasonable control and not related to its fault or negligence, Seller shall so notify Buyer. Seller will be excused from performance during that event to the extent that Seller is prevented or delayed thereby, and Seller will allocate any available Goods in a commercially reasonable manner. Seller may not claim excused or delayed performance of its obligations under this Order if such claim is due to (i) any non-performance of Seller’s subcontractors, suppliers or carriers unless the materials or services are not obtainable from another source in a reasonable time; or (ii) a delay that is reasonably preventable by Seller moving the manufacture of the Goods to an alternate Seller facility.
- APPLICABLE LAW AND JURISDICTION. This Order, all obligations, rights and remedies of the parties with respect to this Order, and all issues, controversies or other maters arising between the parties with respect to the Goods and the transactions contemplated by this Order shall be governed by and interpreted exclusively in accordance with the laws of the State of Pennsylvania (without applying its conflict of laws principles). For the resolution of any disputes arising hereunder, Seller and Buyer each consent to the exclusive personal jurisdiction of the state and federal courts located in the State of Pennsylvania and, at Buyer’s option, of the state and federal courts in any jurisdiction in which any assets of Seller may be located. Seller and Buyer each hereby irrevocably waives any and all right to trial by jury in any legal proceeding in connection with this Order.
- CORRECTIONS; CHANGES. Clerical errors are subject to correction by Buyer, but this Order may otherwise be modified only by a writing signed by Buyer and Seller. Seller may not assign its rights or delegate its duties under this Order, by operation of law or otherwise, without the prior written consent of Buyer. Buyer may assign its rights and delegate its duties under this Order at any time to any affiliate or successor-in-interest via merger, acquisition or other business combination, with notice to Seller.
- RECORDS. Seller will maintain all accounting, sales, shipping, transportation, manufacturing and technical records arising from, or related to, its performance under this Order for sixteen (16) years following final shipment of the Goods.
- PUBLICITY; MARKS. Seller shall not use Buyer’s name in any promotional or advertising literature or assert affiliation with Buyer without Buyer’s prior consent. The Goods (including packaging and labels) will not reference Seller except as required by law, the specifications or as directed by Buyer in writing. Seller may use Buyer’s trademarks, trade names or corporate logos only in accordance with the specifications.
- CONFIDENTIALITY. Seller will keep secret all information about the way in which Buyer develops, designs, produces or sells its products, or about the way which Buyer conducts its business including, but not limited to, information related to products, product needs and specifications, markets, customers and sales, whether or not the Buyer specifies that information as confidential (“Buyer’s Confidential Information”). Seller will use Buyer’s Confidential Information only as necessary to perform its obligations under this Order and will be responsible for its employees, agents and contractors abiding by these obligations. On Buyer’s request, Seller will return to Buyer all materials, in whatever form, that include or constitute Buyer’s Confidential Information. All inventions, discoveries, and improvements whether or not patentable, which are conceived by Seller while using or responding to the Buyer’s Confidential Information (herein a “Product Development”) shall belong to Buyer. Seller shall promptly notify Buyer of any Product Development and cooperate as necessary to assign to Buyer all right, title and interest therein.
- BUSINESS CONDUCT. Buyer expects its associates to carry out Buyer’s business with honesty and in compliance with laws and high ethical standards and in compliance with Buyer’s Ethics policy as posted on AWC website (www.awcwire.com). This expectation extends to Buyer’s interaction and dealings with suppliers and customers. If Seller experiences problems with or has concerns surrounding its dealings with Buyer, Seller is encouraged to contact Buyer’s CFO at 1-800-828-9473.
- COUNTERFEIT GOODS. Seller represents that it shall not furnish "counterfeit goods" to Buyer, defined as Goods or separately-identifiable items or components of Goods that may without limitation: (i) be an unauthorized copy or substitute of an original equipment manufacturer or original component manufacturer (collectively, "OEM") item; (ii) are not traceable to an OEM sufficient to ensure authenticity in OEM design and manufacture; (iii) do not contain proper external or internal materials or components required by the OEM or are not constructed in accordance with OEM design; (iv) have been re-worked, re-marked, re-labeled, repaired, refurbished, or otherwise modified from OEM design but are represented as OEM authentic or as new; or (v) have not passed successfully all OEM required testing, verification, screening, and quality control processes, or (vi) fail to meet the requirement of an "Approved Part" as defined in FAA Advisory Circular 21-29C and any updated version thereof. Counterfeit goods shall be deemed non-conforming, and in addition to any other rights Buyer may have at law or pursuant to an Order, the Agreement or these Terms and Conditions, Seller shall disclose the source of the counterfeit good to Buyer and cooperate with Buyer with respect to any investigations or remedial actions undertaken by Buyer.
- CONFLICT MINERALS. Seller recognizes, consistent with the public policy underlying enactment of the Conflict Minerals provision (Section 1502) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”), the significant legal and non-legal risks associated with sourcing tin, tantalum, tungsten and gold (the “Conflict Minerals”) from the Democratic Republic of the Congo and adjoining countries (“DRC countries”). Accordingly, Supplier commits to comply with Section 1502 of the Act and its implementing regulations; to the extent Supplier is not a “Registrant” as defined in the Act, Supplier shall comply with Section 1502 of the Act and its implementation regulations except for the filing requirements. In particular, Supplier commits to have in place a supply chain policy and processes to undertake (i) a reasonable inquiry into the country of origin of Conflict Minerals incorporated into products it provides Buyer; (ii) due diligence of its supply chain, following a nationally or internationally recognized due diligence framework, as necessary, to determine if Conflict Minerals sourced from the DRC countries directly or indirectly support unlawful conflict there, and (iii) risk assessment and mitigation actions necessary to implement the country of origin inquiry UTC Proprietary 30 and due diligence procedures. Seller shall take all other measures as are necessary to comply with Section 1502 of the Act and its implementing regulations, including any amendments thereto.
- Competence and awareness. Seller must use only qualified persons to perform work on behalf of buyer. Such persons’ competence must be confirmed by seller prior to performance of work. Persons performing work must be made aware of their contribution to product or service conformity, contribution to product safety and the importance of ethical behavior.
- Performance. Seller’s performance may be monitored and reported on by Buyer on a periodic basis. Performance is based on on-time delivery of goods and services as well as quality of goods and services delivered. Seller must maintain an on-time delivery percentage of 70% or better and a quality rating of 85% or better. Requests for performance reports may be submitted to Buyer by Seller no more than once per month.
- Nonconforming material. Seller must notify buyer in writing of the existence or suspected existence of nonconforming material produced for or supplied to Buyer within 2 business days of discovery by seller. Notification shall include all pertinent information required to identify the material (lot numbers, PO numbers, item numbers, etc.) risks associated with the nonconformance and recommendations for mitigation.