Terms of Use

PLEASE READ THESE TERMS AND CONDITIONS OF USE VERY CAREFULLY.

Agreeing to the Terms of Registration indicates your acceptance to be bound by these terms and conditions of use. 

Statement of Purpose

Peirce-Phelps, Inc. and User desire to enhance their business relationship by utilizing certain Internet-based applications and other support services. For that purpose, the parties are entering into this Agreement to set forth the terms and conditions pursuant to which Peirce-Phelps, Inc. will allow User to access the website maintained by Peirce-Phelps, Inc. at www.peirce.com (the “Site”) for purposes of obtaining or providing Internet-based application services and/or Internet-based support services from or to Peirce-Phelps, Inc.

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Peirce-Phelps, Inc. and User hereby agree as follows: 

ARTICLE I
ACCESS TO AND USE OF SITE

1.1 Access Authority and Conditions. Subject to the terms of this Agreement, Peirce-Phelps, Inc. agrees to permit User to access the Site on a limited, revocable, non-exclusive, non-transferable basis solely for the purpose of obtaining or providing Internet-based application services and/or Internet-based support services from or to Peirce-Phelps, Inc. and exchanging product, sales and related information to enhance the business relationship between Peirce-Phelps, Inc. and User. Peirce-Phelps, Inc. may, in its sole discretion, provide User with access on the Site to certain data pertaining to User’s business with Peirce-Phelps, Inc. or other information relevant to Peirce-Phelps, Inc. (collectively, the “Information”). User’s access to the Site and Information shall be subject to the terms of this Agreement, any guidelines, rules or regulations issued by Peirce-Phelps, Inc. from time to time in its sole discretion and the following terms:

1. User shall not use or access the Site or Information in any way that, in Peirce-Phelps, Inc. sole discretion, may adversely affect the performance or function of the Site.
2. User shall not gain access, or attempt to gain access, by any means, to any unauthorized portion of Peirce-Phelps, Inc. computer system or database, other than the Site.
3. User shall not use or attempt to use the Site to obtain data or other information except Information that pertains to User’s business with Peirce-Phelps, Inc..
4. Peirce-Phelps, Inc. may terminate, update, alter or supplement all or any portion of the Site and all or any portion of the Information in its sole discretion without providing User with notice thereof.  While Peirce-Phelps, Inc. does not presently charge for access to the Site and Information, Peirce-Phelps, Inc. may assess such charges in the future in its sole discretion by providing notice of such charges to User.
5. User may not use the Information for any purpose other than to facilitate its business relationship with Peirce-Phelps, Inc.; nor may User disclose any Information to any third party without Peirce-Phelps, Inc. prior written consent. Upon termination of this Agreement, User shall return to Peirce-Phelps, Inc. all computer files or written materials in User’s possession that contain, or were derived or prepared based upon, the Information or any other content on the Site.
6. User agrees to comply with all security procedures established by Peirce-Phelps, Inc. and in particular acknowledges its responsibility to maintain appropriate access to the Site.
7. User shall not copy, use, modify or prepare derivative works from Information or other content on the Site other than to facilitate its business relationship with Peirce-Phelps, Inc.
8. User shall not use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, "data mine", or in any way reproduce or circumvent the navigational structure or presentation of the Website or its contents, authentication and security measures.
9. User shall not execute any form of network monitoring or run a network analyzer or packet sniffer or other technology to intercept, decode, mine or display any packets used to communicate between the Website’s servers or any data not intended for you; and/or harvest or collect information about Website visitors or members without their express consent.

1.2 User Data. User agrees that Peirce-Phelps, Inc. may collect publicly available data or other information about Peirce-Phelps, Inc., and its business and business activities with User, that such data and other information (relating to periods both before and after the date of this Agreement) shall be the sole property of Peirce-Phelps, Inc. and that Peirce-Phelps, Inc. may incorporate such data or information into the Information made available on the Site both during and after the term of this Agreement without User’s consent.

1.3 Evaluation. Upon Peirce-Phelps, Inc. request, User shall, at its own expense, assist and cooperate with Peirce-Phelps, Inc. in its analysis and evaluation of the accuracy, accessibility, functionality and usability of the Site, any portion thereof or any improvements or changes thereto and shall provide Peirce-Phelps, Inc. with feedback in such form and at such times as requested by Peirce-Phelps, Inc..

1.4 Acknowledgement. User acknowledges that the Site and Information are subject to change from time to time in Peirce-Phelps, Inc. sole discretion without notice to User. User expressly acknowledges that Peirce-Phelps, Inc. makes no representation and provides no warranties regarding the availability or functionality of the Site and that inaccuracies and interruptions in the availability, functionality and completeness of Site and Information are possible.

1.5 Support. Peirce-Phelps, Inc. shall have no obligation to provide any support or maintenance for the Site; nor shall Peirce-Phelps, Inc. have any obligation to provide access to, maintain, update or ensure the accuracy of the Information or other content on the Site.

ARTICLE II
TERM AND TERMINATION

2.1 Term. The term of this Agreement shall commence as of the Effective Date and shall terminate in accordance with Section 2.2 of this Agreement.

2.2 Termination. Peirce-Phelps, Inc., in its sole discretion, may terminate this Agreement and User’s access to the Site and Information at any time, and for any reason, and shall make reasonable efforts to notify User of such termination. User may terminate this Agreement at any time for any or no reason upon five (5) days written notice to Peirce-Phelps, Inc.

ARTICLE III
DISCLAIMER OF WARRANTIES,
LIMITATION ON LIABILITY
AND INDEMNIFICATION

3.1 DISCLAIMER OF WARRANTIES.

1. THE INFORMATION AND USE OF THE SITE ARE PROVIDED “AS IS”.  NO WARRANTY, REPRESENTATION, CONDITION, UNDERTAKING OR TERM, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE CONDITION, QUALITY, DURABILITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE OF THE SITE OR THE INFORMATION IS GIVEN OR ASSUMED BY PEIRCE-PHELPS, INC. OR ITS AGENTS. ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. PEIRCE-PHELPS, INC. MAKES NO WARRANTY WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF THE INFORMATION. PEIRCE-PHELPS, INC. DOES NOT WARRANT THAT USER’S USE OF THE SITE WILL BE UNINTERRUPTED, SECURE OR ERROR FREE.
2. PEIRCE-PHELPS, INC. MAKES NO WARRANTY OR REPRESENTATION, AND HEREBY DISCLAIMS ANY WARRANTY OR REPRESENTATION, CONCERING THE ADEQUACY, COMPLETENESS, USEFULNESS OR SUFFICIENCY OF ANY SECURITY SERVICES PROVIDED HEREUNDER, AND FURTHER DISCLAIMS ANY AND ALL LIABILITY FOR NEGLIGENCE AND LACK OF REASONABLE CARE WITH RESPECT THERETO. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NO WARRANTIES OF ANY TYPE ARE MADE WITH RESPECT TO THE SECURITY SERVICES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

3.2 LIMITATION OF LIABILITY. IN NO EVENT WILL PEIRCE-PHELPS, INC. BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR PENALTIES (INCLUDING LOSS OF PROFITS AND INABILITY TO USE THE SITE OR THE INFORMATION) ARISING HEREUNDER OR IN CONNECTION HEREWITH OR ARISING IN CONNECTION WITH THE USE, DELIVERY, LICENSE, PERFORMANCE, OR NONPERFORMANCE OF CERTIFICATES OR.DIGITAL SIGNATURES EVEN IF PEIRCE-PHELPS, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH.DAMAGES OR PENALTIES. THIS LIMITATION OF LIABILITY SHALL BE APPLICABLE TO THE EXTENT PERMITTED BY LAW IN THE EVENT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF PEIRCE-PHELPS, INC. OR IN THE EVENT OF PERSONAL INJURY OR DEATH. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL PEIRCE-PHELPS, INC. BE LIABLE FOR ANY DAMAGES (DIRECT OR OTHERWISE) OR PENALTIES OR LOSS ARISING IN CONNECTION WITH THIS AGREEMENT TO USER OR ANY THIRD PARTY, REGARDLESS OF THE FORM OF ACTION OR CLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE.

3.3 Indemnification. User will, at its sole cost and expense, indemnify and hold Peirce-Phelps, Inc., its affiliates and its and their respective officers, directors, employees, agents, successors and assigns harmless from and against any and all claims, losses, damages, judgments, cost and expenses (including attorneys’ fees and expenses) arising out of or related to (a) User’s use of the Site or Information; (b) any breach or non-performance by User of the terms of this Agreement in any manner.  User shall permit Peirce-Phelps, Inc. To participate in any such action to the extent that, in the judgment of Peirce-Phelps, Inc., Peirce-Phelps, Inc. May be prejudiced thereby, and User shall not settle any such action without the prior written consent of Peirce-Phelps, Inc.

ARTICLE IV
CONFIDENTIALITY AND OWNERSHIP OF SITE

4.1 Confidentiality. User shall maintain in confidence and not disclose in any manner to any third party without Peirce-Phelps, Inc. prior written consent (i) the existence and terms of this Agreement; (ii) the existence, URL address, functionality, features, underlying concept or any aspect of the Site; (iii) any Information, and; (iv) any information appearing on the Site relevant to Peirce-Phelps, Inc.: that (a) was not known by User prior to the effective date of this Agreement, (b) is not publicly available, (c) was not disclosed to User free from any duty of confidentiality, or (d) was not independently developed by User.

4.2 Ownership. By permitting access to the Site and Information hereunder, Peirce-Phelps, Inc. does not convey to User any right to or interest in the Site, the content on the Site, the Information or any other property of Peirce-Phelps, Inc. Any data and information about Peirce-Phelps, Inc. business and business activities with User, whether provided to Peirce-Phelps, Inc. by User or developed by Peirce-Phelps, Inc. independently, shall be the sole property of Peirce-Phelps, Inc. Peirce-Phelps, Inc. shall retain the sole and exclusive editorial and creative control of the Site.  User hereby acknowledges that the Site, its operation, content, underlying concept and tradedress are proprietary to Peirce-Phelps, Inc. and that Peirce-Phelps, Inc. owns all right, title and interest in and to the Site and its content, including any patent, trademark, copyright, tradedress or trade secret rights therein.

ARTICLE V
MISCELLANEOUS

5.1 Amendment and Waiver. This Agreement may not be modified unless such modification is reduced to writing, dated and executed by both parties; provided, that Peirce-Phelps, Inc. may in its sole discretion establish guidelines and procedures for User’s access to and use of the Site that shall be binding upon User.  Neither the course of conduct between the parties nor trade usage shall act to modify or alter the provisions of this Agreement.  No provision of this Agreement shall be deemed waived by Peirce-Phelps, Inc. unless such waiver is in writing and signed by a duly authorized officer of Peirce-Phelps, Inc.

5.2 Authority. User represents and warrants that the person executing this Agreement on its behalf has full right and authority to enter into this Agreement on User’s behalf.

5.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Pennsylvania excluding its conflicts of laws principles.

5.4 Attorneys’ Fees. Should Peirce-Phelps, Inc. use the services of an attorney to enforce any of its rights hereunder in an action in which Peirce-Phelps, Inc. prevails, User shall pay Peirce-Phelps, Inc. for all costs and expenses incurred, including reasonable attorney’s fees.

5.5 Assignment. User may not assign any of its rights or delegate any of its duties hereunder without the prior written consent of Peirce-Phelps, Inc.  Peirce-Phelps, Inc. may assign its rights or delegate its duties under this Agreement to a parent, affiliate, subsidiary, or successor in interest.

5.6 Severability. If any provision or portion of a provision of this Agreement is determined to be invalid, illegal, or unenforceable under any circumstances, such provision or portion will be deemed omitted with respect to those circumstances, and the remaining provisions of this Agreement shall continue to be valid and enforceable as to the parties hereto.

5.7 No Fiduciary Relationship. Peirce-Phelps, Inc. is not User’s agent, fiduciary, trustee or other representative. The relationship between User and Peirce-Phelps, Inc. is not that of agent and principal.  User has no authority to bind Peirce-Phelps, Inc., by contract or otherwise, to any obligation and shall make no representations to the contrary, either expressly, implicitly, by appearance, or otherwise.

5.8 Governmental Regulations. Peirce-Phelps, Inc. obligation to perform the Certification services contemplated hereunder is subject to all governmental requirements and restrictions that may now be or hereafter become applicable thereto.

5.9 Entire Agreement. This Agreement and any guidelines, rules or regulations issued by Peirce-Phelps, Inc. from time to time pertaining to access to the Site or use of the Information constitute the entire agreement of the parties with respect to the subject matter hereof and supersede any prior written or oral agreements between them with respect thereto.

Waiver of Jury
As a material condition of the Agreement, in the event of any litigation between the parties, each party hereby waives all right to a trial by jury.

IN WITNESS WHEREOF, Peirce-Phelps, Inc. and User have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.

Typographical Errors
In the event that a Peirce-Phelps, Inc. product is mistakenly listed at an incorrect price, Peirce-Phelps, Inc. reserves the right to refuse or cancel any orders placed for product listed at the incorrect price. Peirce-Phelps, Inc. reserves the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is cancelled, Peirce-Phelps, Inc. shall issue a credit to your credit card account in the amount of the incorrect price.

Pictures
Please note that not all products are exactly as pictured. Please go by model numbers, not pictures as we do not have control of manufacturers' changes.

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.

1. Prices

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.

5. Delivery

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.

13. Miscellaneous

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.

Return Policy

Return Policy is as follows:

• All items must be new and unused in original carton.
• Items that are routinely stocked by Peirce Phelps, Inc. can be returned without penalty.
• All accessories and instruction sheets must be included.
• Returns are subject to inspection and may be refused.
• Manufacturer’s restocking fees may also apply.
• Non-stock, special order items will not be accepted for return. See below for more information.
• Items must be returned within 30 days of purchase.
• Restocking fees of 20% may apply.

For any Non Stock or Special Ordered items, the policy is as follows:

Returns for Non Stock or Special Ordered items will not be accepted unless it is determined that a PPI or manufacturer error has occurred or if the manufacturer agrees to a return. It is the branch’s responsibility to negotiate a return with the manufacturer for any returns. Customer returns of Non Stock and Special Ordered items will be allowed only after the manufacturer has authorized the return. Any fees levied by the manufacturer must be passed on to the customer unless the return is due to PPI or manufacturer error.

Shipping Policy

Shipping Policy is as follows:

Purchase Order Terms and Conditions

General

This Purchase Order (sometimes referenced herein as “PO”), is an offer by PEIRCE-PHELPS, LLC, ("Buyer") to the Seller listed on the accompanying Purchase Order ("Seller") and acceptance is limited to its provisions without additions, deletions, or other modifications. Buyer will not be responsible for materials delivered without issuance of its standard Purchase Order. This is a firm price order for the price set forth in the Purchase Order to which these terms and conditions apply, which Purchase Order is made a part hereof and incorporated herein by reference.

Terms Of Payment

Invoices shall be dated no earlier than date of shipment or delivery of service. The discount period begins upon receipt of invoice, required delivery date, or date any applicable discrepancy is resolved, whichever date is later. Buyer will pay non-discountable invoices thirty (30) days after receipt of invoice, required delivery date, acceptance, or the date any applicable non-conformity is resolved, whichever date is later.

Attachments

Documents designated by Buyer in the body of the Purchase Order, including supplemental terms and conditions, if any, are incorporated by reference the same as if set out in full therein.

Changes

Buyer reserves the right at any time to issue a written change order or amendment to the Purchase Order concerning any of the following: (a) specifications, drawings, and data incorporated in the Purchase Order where the items to be furnished are to be specially manufactured for Buyer; (b) quantity; (c) methods of shipment or packaging, (d) place of delivery, (e) time of delivery; or (f) any other matters affecting this Purchase Order.

Termination

Buyer may terminate the Purchase Order for its convenience, in whole or in part, at any time prior to shipment by (written or electronic) notice to Seller. Upon receipt of such termination notice, Seller shall promptly comply with the directions contained in such notice and shall, as required, (a) take action necessary to terminate the work as provided in the notice, minimizing costs and liabilities for the terminated work, and (b) continue the performance of any part of the work not terminated by Buyer.

Assignment

Seller may not assign, transfer, or subcontract this Purchase Order or any right or obligation hereunder without Buyer’s written consent.

Excusable Delay

Fires, floods, strikes, accidents, shortages, or other causes beyond the reasonable control of the parties, which prevent Seller from delivering, or Buyer from receiving, any of the materials covered by this Purchase Order, shall suspend deliveries until the cause is removed, subject, however, to Buyer’s right of termination for convenience under Paragraph 5.

Packaging, Packing List, And Bill Of Lading And Delivery

Seller shall be responsible for proper packaging, loading, and tie-down to prevent damage during transportation. Buyer’s weight and/or count will be accepted as final and conclusive on all shipments not accompanied by a packing list. Delivery to Buyer shall be construed as the on-dock date at Buyer’s facility (required date) as noted on PO.

Inspection

All materials furnished hereunder will be subject to inspection and test by Buyer and will be subject to Buyer’s final inspection and approval within a reasonable time after delivery. If Seller delivers non-conforming materials, Buyer may at its option and at Seller’s expense: (i) reject and return the materials for credit or refund; (ii) require Seller to promptly correct or replace the materials; (iii) correct the materials; or (iv) obtain replacement materials from another source. Seller shall not redeliver corrected or rejected materials without disclosing the former rejection or requirement for correction. Seller shall disclose any corrective action taken. Repair, replacement and other correction and redelivery shall be completed within the original delivery schedule or such later time as Buyer may reasonably direct. All costs, expenses and loss of value incurred as a result of or in connection with nonconformance and repair, replacement or other correction may be recovered from Seller by equitable price reduction or credit against any amounts that may be owed to Seller under this purchase order or another. Payment for any materials shall not be deemed acceptance and in no event shall Buyer incur any liability for payment for rejected materials.

Warranties

By accepting this Purchase Order, Seller warrants that the materials furnished will be free from defects in materials and workmanship, merchantable and in full conformity with Buyer’s specifications, drawings, and data, and Seller’s descriptions, promises, or samples, and that such materials will be fit for the Buyer’s intended use, provided Seller has reason to know of such use, and that Seller will convey good title to the materials, free and clear from all liens, claims, and encumbrances. Seller warrants that materials covered by this Purchase Order shall not infringe any patent, design, mask work, copyright or trademark, of any third party, either directly or contributory. Seller agrees to indemnify Buyer and hold Buyer harmless from and against all liability, loss, damage and expense, including reasonable counsel fees and costs of litigation, resulting from any claim of infringement and any litigation relating thereto. In the case where materials or a part thereof are held to constitute infringement and the use of the materials or a part thereof is enjoined, Seller shall, at the expense of Seller, either (a) procure for the Buyer the rights to continue to using the materials, (b) replace the materials so that the materials become non-infringing, or (c) retake the materials and refund the purchase price and transportation and installation cost of the materials to Buyer. Such obligations shall survive acceptance of the materials and payment therefore by Buyer. Where applicable, the Seller warrants that the materials covered by this Purchase Order are in compliance with all laws, regulations, rules, and orders relating to the importation of materials into the United States, the exportation of materials out of the country of origin, the transit of materials through intermediate countries and the sale and use or foreign made materials in the United States. Seller further warrants that it has obtained all permits, licenses, and certifications necessary for the materials to be exported out of the country of origin, imported in the United States, delivered to Buyer and used or sold within the United States.

It is Seller's responsibility to comply with these and all referenced documents and to clarify with Buyer any inconsistencies or conflicts in any parts of this order, such as these provisions contained in this document, additional terms and conditions, general specifications, detailed specifications, etc. Should Seller fail to contact Buyer to resolve these conflicts or inconsistencies, Seller will be solely responsible for errors resulting from conflicts or inconsistencies. Where documents are referenced, the version in effect at the time of order placement shall apply.

Title; Risk Of Loss

Title shall pass to Buyer upon Buyer’s receipt of materials at destination. Risk of loss of all materials shall remain in Seller until receipt by Buyer at destination, unless otherwise specified in this Purchase Order, except for loss occasioned by gross negligence or willful neglect of Buyer or its customer.

Confidentiality; Limited Use

Unless otherwise agreed by Buyer in writing, Seller shall keep confidential and not disclose to any third party, any confidential and/or proprietary materials provided by Buyer to Seller in connection with Seller’s performance of this Purchase Order or prepared by Seller specifically for Buyer pursuant to this Purchase Order, including but not limited to any drawings, masters, software, specifications, raw materials, components, data, business information or plans, customer lists or other customer information (“Confidential Information”). Seller shall not make any copies of Confidential Information except as specifically authorized by Buyer in writing. At the completion of this Purchase Order, or upon Buyer’s request, Seller shall promptly return to Buyer all Confidential Information not consumed in the performance of this Purchase Order, together with any copies in Seller’s Possession. Seller shall use Confidential Information solely for Sellers performance of this Purchase Order for Buyer, and Seller shall not, without Buyer’s written consent, directly or indirectly use Confidential Information or information derived there from in providing materials for any other customer of Seller, or any other person or entity.

>Resolution Of Conflicts Or Inconsistencies Occuring In The Order

It is Seller’s responsibility to comply with this Purchase Order and all referenced documents, and to clarify with Buyer any inconsistencies or conflicts in any parts of the Purchase order or referenced documents. Should Seller fail to contact Buyer to resolve conflicts or inconsistencies, Seller will be solely responsible for errors resulting from said conflicts or inconsistencies. Where documents are referenced, the version in effect at the time of order placement shall apply.

Buyer’s Terms And Conditions Apply

Acknowledgment of the Purchase Order, shipment of any materials, or commencement of work pursuant to the Purchase Order shall be deemed an acceptance of these General Terms and Conditions. No modification of or release from this Purchase Order shall be binding unless agreed to in writing by the parties and specifically labeled as a modification or release. Unless specifically agreed to otherwise by Buyer and Seller, these terms and conditions supersede any submitted by Seller in any proposal or acknowledgment.

Extra Charges

No charges for extras or for cartage or boxing or storage will be allowed unless the same has been agreed upon in writing by Buyer. All materials must be forwarded in accordance with Buyer’s shipping instructions, otherwise the difference in freight rate will be charged to Seller.

Substitutions

No substitution of materials or accessories may be made without written permission from Buyer.

Indemnification

Seller agrees to indemnify, defend, and hold Buyer harmless from and against all losses, damages, liability, actions, judgments, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and other expenses of litigation), suffered, incurred, or asserted by or against Buyer (a) by reason of Seller’s breach of a warranty, (b) by reason of Seller’s breach of any term of this Purchase Order, or (c) by reason of personal injury, including death, or property damage sustained by a third party, resulting from or arising out of an act or omission of Seller, or Seller’s agents, employees, or contractors in fulfillment of this Purchase Order. Additionally, Seller shall, at its expense, defend any suit or proceeding brought against Buyer, its successors and assigns, based on any claim that any materials or any component part delivered or furnished hereunder infringes or the like the rightful claim of any third party including any US or foreign letters patent or trademark or copyright (excepting infringement or the like necessarily resulting from adherence to specifications furnished by Buyer). Buyer agrees to notify Seller in writing or electronically of any such claim and to provide such assistance, at Seller's expense, as may be reasonably required in defending the suit or proceeding. Seller shall pay all damages, costs and attorney fees awarded in any suit or proceeding. If the materials or any component part furnished hereunder are held to infringe and their use is enjoined, Seller shall, at its option and its own expense, (a) procure for Buyer and its successors and assigns, the right to continue using the materials, (b) replace them with a substantially equivalent non-infringing product acceptable to Buyer, or (c) modify them so they become non-infringing with substantially equivalent performance acceptable to Buyer. Absent (a), (b), (c), Buyer reserves its rights at law, or at its option may return the infringing materials to Seller at Seller's expense and Seller promptly shall refund the purchase price to Buyer.

Cumulative Remedies; Waivers; Survival Of Warrantie

The remedies herein reserved to Buyer shall be cumulative, and additional to any other or further remedies provided in law or equity. No waiver by Buyer of any term or condition of this Purchase Order shall be construed as a permanent waiver of such term or condition or of any other term or condition. Seller’s warranties shall survive the completion or cancellation of this Purchase Order.

Governing Law

This Purchase Order shall be governed by the laws of the State of Pennsylvania, U.S.A, except for its provisions regarding principles of conflicts of laws, and except to the extent that federal communications law shall apply. Any court action arising under this order shall be venued in Courts of Common Pleas, Philadelphia County, Pennsylvania, U.S.A., in either federal or state court, as is appropriate.

“Materials”

The term “materials” as used herein means any and all materials, parts, products, machines, tooling, test equipment, technical data, computer software, computer software documentation, and other tangible items or documentary information furnished or required to be furnished by Seller under this order.

Entire Agreement

Unless superseded by a specific signed agreement between Buyer and Seller, this agreement shall include the Purchase Order, these General Terms and Conditions, and all attachments referred to in the Purchase Order or in the General Terms and Conditions, and it shall constitute the entire agreement of the parties with regard to the subject matter contained herein. All other prior or contemporaneous representations, warranties, covenants, or agreements between Seller and Buyer, or their representatives, with respect to the subject matter are hereby superseded. The term “Purchase Order” as used herein means the first and continuation pages of Proponent’s completed Purchase Order form, including any special provisions contained therein. This agreement may not be modified except by mutual written agreement of the parties.

Disputes/Attorney’s Fees Clause

Disputes/Attorney’s Fees. Any dispute that arises under or it related to this purchase order that cannot be settled by mutual agreement of the parties may be decided by a court of competent jurisdiction, and the parties agree to and consent to jurisdiction and venue in the Courts of Common Pleas, Philadelphia County in the state of Pennsylvania. Pending final resolution of any dispute, Seller shall proceed with performance of this purchase order according to Buyer’s instructions so long as Buyer continues to pay amounts not in dispute. The prevailing party in any action filed regarding this Purchase Order shall be entitled to recover its reasonable attorney’s fees and costs as a part of the claim, at both the trial and appellate level.

New Materials

The work to be delivered hereunder shall consist of new materials, no used, or reconditioned, or of such age as to impair its usefulness of safety.