Terms of Sale
Please read these terms and conditions of sale. The following terms and conditions shall apply to the sale of the merchandise, products and/or services (hereinafter collectively “Merchandise”) described on any Invoice or similar document issued by Peirce-Phelps, Inc. (hereinafter “Seller”). They contain important information concerning the purchaser, buyer or customer’s (hereinafter collectively “Customer”) terms and conditions of sale. Except in those instances where Seller and Customer enter into a separate written contract for the purchase which provides for separate terms and conditions of sale, the following terms and conditions shall control and apply. Seller reserves the right to amend or revise these Terms and Conditions at any time and without notice.
The price(s) displayed on www.peirce.com are subject to change or correction at any time and without notice. Unless otherwise stated, the price(s) quoted is F.O.B. point of shipment.
2. Sales Tax
Customer shall be responsible for payment of all applicable state and local sales or use taxes, or for providing a valid sales tax exemption certificate, whether or not billed on the face of any Invoice or similar document issued by Seller. When placing an order, Customer shall clearly indicate which products are tax exempt.
3. Payment and Credit
Payment shall be made in accordance with the terms and conditions stated herein. Sellers accepts cash, checks, money orders and major credit cards (only at the time of purchase and applicable services charges may apply). For Customers with established and approved credit only, payment terms are half a percent (0.5%) ten, net thirty (30) days from the invoice date of Merchandise. All credit extended by Seller and the limits of such credit is at Seller’s sole discretion and may be reduced or revoked by Seller at any time and for any reason. As a condition for the continued extension of credit, Customer agrees to provide Seller with current credit information and the latest monthly or annual financial statement(s) within five (5) business days following request by Seller.
All orders contemplating pick-up, delivery or shipment (as applicable) before full payment is made are subject to approval of an authorized representative of Seller’s Credit Department. IF ANY PAYMENT HEREUNDER IS NOT MADE WHEN DUE, CUSTOMER AGREES TO PAY INTEREST THEREON AT THE RATE OF 1-1/2% PER MONTH (18% PER ANNUM). Unless otherwise agreed in advance, each delivery of any portion of the Merchandise shall be considered a separate and independent transaction and payment therefor shall be made accordingly.
If Customer fails to make payment(s) within thirty (30) days of the invoice date, or fails to comply with Seller’s credit terms, or fails to supply adequate assurance of full performance to Seller within a reasonable time after requested by Seller (such time as specified in Seller’s request), Seller may defer shipment(s) until such payment or compliance is made, require cash in advance for any further shipment(s), demand immediate payment of all amounts then owed, elect to pursue collection action (including attorneys’ fees and costs) and/or may cancel all or any part of an unshipped order, at Seller’s sole discretion. If Customer fails to comply with these payment terms, Seller may, at its sole discretion and without notice, immediately terminate any agreement(s) it has with Customer. Upon such termination, all amounts owed by Customer to Seller shall become immediately due and payable.
Seller has the right, at any time and in its sole discretion, to immediately change the terms of any credit extended to Customer if: (i) there is a material change in Customer’s financial capability or creditworthiness; (ii) Customer enters into or signs an agreement regarding any Change of Control; or (iii) a trustee, receiver or examiner is appointed for Customer or its subsidiaries or affiliates, or Customer’s plan of reorganization is confirmed by a U.S. Bankruptcy Court. “Change of Control” means any (i) sale, lease, or other disposition of all or substantially all of Customer’s assets; (ii) transaction or series of related transactions (by stock sale or otherwise) in which any person or entity becomes the beneficial owner, directly or indirectly, of more than 50% of Customer’s voting control; or (iii) merger or consolidation involving Customer. Additionally, Customer, and each of its subsidiaries and affiliates, agrees to provide to Seller with proper authorization necessary for Seller to request any financial information from third parties.
Customer hereby unconditionally guarantees payment as a primary obligor of, as provided herein, all purchases made by Customer and its subsidiaries and affiliates. Each of Customer’s subsidiaries and affiliates purchasing from Seller are jointly and severally liable for all purchases made by Customer and its subsidiaries and affiliates. Customer is also acting as agent for such subsidiaries and affiliates. Customer further agrees to defend, indemnify and hold harmless Seller, and any of its employees, agents and representatives, from and against any and all claims, injuries, damages, losses, expenses and suits, including but not limited to attorneys’ fees and costs, arising out of or relating in any way with any attempt(s) to recover payment(s) to Seller made on behalf of Customer by a subsidiary and affiliate on the grounds that such payment was improper, unauthorized or constituted a fraudulent transfer.
4. Security Interest
If the Merchandise has not been fully paid at the time of pick-up, delivery or shipment, Customer hereby grants to Seller or to Seller’s designee a first priority purchase money security interest and/or chattel mortgage in the Merchandise, any accounts receivable or cash from resale thereof, until full payment is made to Seller. Customer agrees to do all acts necessary to perfect and maintain said security interest, including but not limited to, filing or authorizing to file any financing statement or other appropriate document(s) with any governmental agency or authority or otherwise. Seller may assign or require this security interest to be given to a bank and/or other Financing Institution.
In no event shall Seller be liable to Customer for delayed delivery unless Seller has expressly agreed in writing to assume such liability. If before or after delivery of the Merchandise, or commencement or installation of any work or service in connection therewith, Customer or the owner of the project or premises of installation (if any) shall fail to accept delivery or refuse to permit Seller to perform hereunder, or, if before or after delivery, Customer shall attempt to cancel this delivery, Seller shall be entitled, at Seller's sole discretion, to retain or recover the Merchandise, to cease all performance hereunder and to receive and collect from Customer any and all damages suffered by Seller, including but not limited to any cancellation charges imposed upon Seller or, where such damages cannot readily be ascertained, no less than 20% of the invoice price as liquidated partial damages for such breach hereof to be determined at Seller’s sole discretion.
Customer hereby authorizes Seller in the event of such breach to retain said partial damages, including but not limited to said liquidated damages, from any deposit made by Customer, and if such partial damages, including liquidated damages, are paid to Seller or retained by it from any deposit made by Customer, Seller shall be released from all liability or obligations and this transaction shall thereupon become null and void (Seller retaining its rights as stated herein). Customer shall conform and comply with all laws and regulations relating to the installation, purchase and use of the Merchandise and shall indemnify Seller from and against all actual or asserted violations. Customer shall pay for all permits and licenses necessary to purchase, install, use and possess the Merchandise. If installation is included in this sale, Customer shall have adequate space available, cleared of obstacles, in close proximity to necessary utility outlets, and in otherwise proper condition for installation.
6. Inspection and Acceptance
The Merchandise described on the Invoice or similar document is standard merchandise or products as manufactured by the companies (if any), unless otherwise stipulated in writing by the parties. It is Customer’s responsibility to thoroughly inspect all Merchandise to ensure it is complete and correct. With respect to any pick-up of Merchandise, Customer shall inspect same immediately, and once the Customer takes receipt of same without any written complaint, said Merchandise shall be deemed complete and correct in all respects and Customer unconditionally waives and relinquishes any and all claim(s) for errors, deficiencies, imperfections and any other claim(s) for non-conformity.
With respect to any delivery or shipment of Merchandise, Customer shall inspect same immediately upon receipt from Seller and any and all claim(s) for errors, deficiencies, imperfections and any other claim(s) for non-conformity shall be served on Seller in writing within 48 hours after receipt, time being of the essence. Otherwise, said delivery or shipment shall be deemed complete and correct in all respects and Customer unconditionally waives and relinquishes any and all claim(s) for errors, deficiencies, imperfections and any other claim(s) for non-conformity. All sales are final, and no Merchandise shall be returned to Seller for credit or otherwise unless prior written approval is given by an authorized representative of Seller.
7. No Warranty
Seller warrants only that the Merchandise tendered for delivery or shipment is standard merchandise or products as manufactured by the companies (if any), unless otherwise stipulated in writing by the parties.
SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Customer agrees to rely solely upon the manufacturer's standard warranties (if any).
8. Risk of Loss
Unless otherwise stated, the sale of the Merchandise is F.O.B. point of shipment. The risk of loss of the Merchandise shall pass to Customer upon Seller's tender of delivery to Customer or to a public carrier.
9. Limitation of Liability and Indemnification
Seller's, and any of its employees, agents and representatives, liability to Customer (if any) on any claim(s), controversy or dispute arising out of or relating in any way to the terms and conditions herein or in connection with the Merchandise, for any reason whatsoever, shall be limited to Seller's undertaking to assign to Customer such right (if any) as Seller may have against the manufacturer of the Merchandise. In no event shall Seller be liable to Customer for any incidental, consequential, special, indirect and/or punitive damages (even if advised of the possibility of such alleged damages), including but not limited to, loss of profits, delay damages, loss of use of the Merchandise, loss of business, or any claim(s) of Customer’s clients, customers or third-parties. Customer agrees and consents that the Sellers is not liable for any reason beyond the remedies set forth herein.
To the fullest extent permitted by law, Customer shall indemnify and hold harmless Seller, and any of its employees, agents and representatives, from and against any and all claims, injuries, damages, losses, expenses and suits, including but not limited to attorneys’ fees and costs, by Customer’s clients, customers or any third-party, including any alleged claim of Seller's own negligence, arising out of or relating in any way to the terms and conditions herein, in connection with the Merchandise, including but not limited to its sale, delivery, resale, installation, inspection, repair, operation or use. Seller is not liable for any reason beyond the remedies set forth herein, including but not limited to any alleged liability for Merchandise not being available for use. Seller will not be liable for any incidental, consequential, special, indirect and/or punitive damages, including but not limited to, lost profits, delay damages, loss of use of the Merchandise, loss of business, or any claim(s) of Customer’s clients, customers or third-parties. Such obligation shall not be construed to negate, abridge or otherwise reduce other rights or obligations of indemnity owed by Customer to Seller which would otherwise exist.
10. No Modification
Quotations made and orders accepted are subject to the conditions set forth herein and no other agreement or understanding in any way modifies these conditions. Any terms or conditions on any purchase orders submitted by Customer or otherwise shall not be binding upon the Seller unless accepted in writing by an officer of Seller actually authorized to make such acceptance.
11. Jurisdiction and Dispute Resolution
Customer expressly and irrevocably agrees and consents that any claim(s), controversy or dispute arising out of or relating in any way to the terms and conditions herein or in connection with the Merchandise, for any reason whatsoever, shall be construed under and governed by the laws of the Commonwealth of Pennsylvania, and shall be brought in the jurisdiction and venue of the Court of Common Pleas, Philadelphia County. The Customer irrevocably waives any right to trial by Jury.
Customer expressly and irrevocably consents and submits to the personal jurisdiction of said court in any such action or proceeding. Customer expressly and irrevocably waives any claim or defense in any such action or proceeding based on any alleged lack of personal jurisdiction, improper venue or forum non-conveniens or any similar basis. Customer further irrevocably agrees and consents to service of process of any complaint or related process by delivery thereof to it by (a) hand delivery, (b) reputable overnight delivery service with confirmed delivery, (c) certified mail, postage prepaid, return receipt requested or (d) any other manner provided for in the jurisdiction where the project is located or Commonwealth of Pennsylvania. Nothing in this section shall affect or impair in any manner or to any extent the right of Seller to commence legal action or otherwise proceed against the Customer in any jurisdiction or to serve process in any manner permitted by law.
Customer shall be liable to Seller for incidental, consequential, special, indirect and/or punitive damages, including but not limited to, lost profits, delay damages, loss of use of the Merchandise and loss of business, in addition to any other damages permitted by law. Seller shall be entitled to recoup from Customer its collection costs, including but not limited to, all attorneys’ fees, court costs or otherwise. Seller shall also be entitled to recoup from Customer its attorneys’ fees and costs incurred in the defense of any claim or proceeding brought by Customer or third-party against Seller.
12. Application of Payments
Seller will attempt to apply payments as Customer designates, but reserves the right to apply payments to minimize Seller's risk and/or to maximize any available collateral.
Headings. The headings utilized in this document are for convenience only and are not intended to be relied upon as exact descriptions or otherwise.
Interpretation. The Customer acknowledges that it has reviewed the terms and conditions of this document and that the rules of construction to the effect that any ambiguities are resolved against the drafting party shall not be employed in the interpretation of this document.
Severability. If any part or section of this document is found to be unenforceable, all other parts and/or sections will remain in full force and effect.
Waiver. Seller's rights and remedies shall be cumulative and not alternative, and Seller's failure to exercise any right or remedy in any particular instance shall not constitute a waiver of that or of any other right or remedy and shall not preclude Seller from exercising those rights in any other instance.